Excerpted From: Mark C. Grafenreed, Critical Race Theory: Counter-Storytelling the Case of 'Old Frank’ and the Daniel Family Cemetery, 76 SMU Law Review Forum 175 (December, 2023) (146 Footnotes) (Full Document)


MarkCGrafenreedThe New York Times recently reported, “More than six million people died while enslaved within the boundaries of today's United States .... Yet only a tiny fraction of their graves can be found today ....” Despite this attempted physical, psychological, and historical erasure of lives, the cacophonous echoes of African ancestors now become the disembodied “highly vocal ghosts” that Toni Morrison writes of in Beloved. In the biblical narrative, God provides instructions to the nation of Israel through Joshua, Moses's successor. God commands the nation of Israel to consecrate themselves in preparation to receive the covenantal promise God made four generations prior to Abraham. The Israelites were finally primed to enter the Promised Land of Canaan after their miraculous exodus through the Red Sea, liberation from four centuries of Egyptian slavery and bondage under Pharaoh, and forty years of wandering in the wilderness. God commands them to erect memorial stones to serve as existential reminders of God's continuous action and intervention not only in Israelite history but also for its future generations. Essentially, Israel receives an anamnestic order: to remember to never forget!

The State of Texas similarly erects memorials (stones) to preserve its history for future generations. This history is preserved in a plethora of shapes and forms, including museums like the Buffalo Soldiers National Museum in Houston; memorials like the John F. Kennedy Memorial Plaza in Dallas; war monuments like The Alamo in San Antonio; municipal buildings like the Texas State Capitol in Austin, and more. Texas, priding itself on preserving its history, enlists its government. The Texas State Historical Survey Committee, a state agency founded in 1953 and later named the Texas Historical Commission in 1973, is dedicated to historic preservation within Texas. Currently, there are nearly 17,000 historical markers disseminated across the state's vast 268,596 square miles and 254 counties. These historical markers serve as constant and present reminders of the past, prompting those who see them to ask, “What are these stones?”

Unfortunately, the histories of the United States and Texas are under siege. Rather than serving as means of preserving memory, literal and figurative stones are being removed. Since January 2021, all but six states have introduced bills or taken other steps restricting CRT or limiting how educators can discuss racism. Eighteen states have imposed CRT bans in K-12 education. These states include New Hampshire, Montana, Utah, Idaho, North Dakota, South Dakota, Iowa, Oklahoma, Arkansas, Kentucky, Tennessee, Virginia, Mississippi, Georgia, Florida, Alabama, Texas, and South Carolina. Nine of these eighteen states were part of the former Confederacy, and most have predominantly voted along Republican political lines in recent decades. Significantly, the political divide demonstrates CRT's powerful effects. At its core, CRT seeks to excavate the United States' history to expose “institutional racism” and, most importantly, prompt it to be a better nation. For example, in Texas public schools, history teachers seldom discuss, or skip altogether, that when Texas was admitted to the Union as the twenty-eighth state on December 29, 1845, it was a slave state. CRT bans are particularly troubling in states like Texas where slavery, Jim and Jane Crow laws, de jure and de facto segregation, and racism were legally authorized, openly sanctioned, and brutally enforced. If successful, CRT antagonists will effectively cast away stones that should be memorialized while concomitantly erasing or substantially revising history in the process.

This Article argues that despite their intent, some of the memorials the THC has erected have obscured rather than illuminated aspects of Texas history, especially those pertaining to race and racism. Conversely, CRT advocates aim to reveal all history. This Article highlights one specific case involving the interplay between CRT and Texas history: Texas Historical Marker 6626, The Daniel Family Cemetery in University Park, Texas. First, this Article offers a roadmap for the polemics that follow by providing a succinct overview of CRT, recognizing that a full history of CRT would consume volumes. Second, this Article examines how the THC's role in the historical marker application process exposes historical gaps, biases, and prejudices that argue in favor of CRT's necessity. Finally, this Article serves as a long-overdue obituary, eulogy, and memorial stone that not only seeks to honor, humanize, and offer a sense of dignity to “Old Frank,” Kitty, Rose, Wash, Mariah, and the “unknowns”--all family slaves buried in unmarked graves at The Daniel Family Cemetery, but also to the African ancestors, who suffered through the generational violence and trauma of the mid-Atlantic slave trade and North American slavery. The lives of Kitty, Rose, Wash, Mariah, and the unknown slaves are equally valuable and deserving of appropriate attention. However, Old Frank's untold story is only highlighted here because his death in 1850 inaugurated The Daniel Family Cemetery. His story also joins the chronicles of countless examples that demonstrate the devastating effects of a redacted history or, as Lolita Buckner Innis argues, “a constrained version of the history of slavery ....”

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When #BlackLivesMatter re-emerged in the aftermath of Trayvon Martin's murder in July 2013, few could imagine how it would evolve as a movement. While some view it as polarizing and offensive, African American mothers of the #BlackLivesMatter movement have found it a platform for “talking about the ways in which Black lives are deprived of our basic human rights and dignity.” Similarly, in so many ways, the “Crits” who originated Critical Race Theory in the early 1970s, could not have imagined its emergence onto the national stage as a nightly news fixture. “Crits” simply want to restore the rights and dignity afforded to America's oppressed and marginalized citizenry by exposing its systemically oppressive systems. Both movements have been unfairly demonized and villainized. These movements should be seen as attempting to offer a form of dignity to those who have often been marginalized in North American history. Yet, teachers, principals, and other school administrators are losing their jobs for simply uttering the dreaded phrases of BLM or CRT.

“Old Frank” and the other “five slaves” have been deprived of their basic humanity and dignity by being interred in unmarked graves or, as Karen Baker-Fletcher comments, “disremembered graves,” on this historical site. Former SMU Professor William Jennings Bryan, III, a Daniel family descendant, was buried in The Daniel Family Cemetery in 2017. Prior to his death, Bryan had hoped “to mark their [Frank, Kitty, Rose, Mariah, and Wash] final resting place and find their descendants.” Attempts to bring dignity to their names have been recently foreclosed. SMU launched an interactive map of the campus during the Fall of 2021. One of its features allows for the placement of markers on the map to signify historic buildings and other landmarks. Requests to add information about “Old Frank” at The Daniel Family Cemetery were denied because the cemetery's location was just beyond the metes and bounds of SMU's campus. Ironically, the campus sits on the “northern strip” of property owned by the Daniel family. However, the possibility of extending this interactive map with historical overlays in the future remains open.

The THC, while preserving history, also has legal agency to make decisions that erase or ignore history. In fairness, no 5-10 page narrative can fit on a 27 x 42 Large Recorded Texas Historic Landmark Marker; 18 x 28 Small Recorded Texas Historic Landmark Marker; 12 x 16 Recorded Texas Historic Landmark - Medallion & Plaque; or 12 x 6 Supplemental Plaque for existing markers. Yet, the THC has made hundreds of these critical decisions annually, cherry-picking history for nearly seven decades. One prescriptive measure for addressing Buckner Innis's concerns about a “constrained version of history” is digitization. The THC should invest in adding hyperlinks to its website, complete with the corresponding application materials, for each of its past and future historical markers. Website visitors will be empowered to consider all historical data rather than fragmentary information. Digitizing these files also narrows the disparity between the materials the THC considers and the factual inscription on final markers. Twenty-first-century technological advances and internet capabilities are practical and eliminate or mitigate any potential justifications to avoid performing this critical work. Digitization may also reduce the need and expense for physical storage and archival space.

The revenue historical marker applications generated for the State of Texas is an economic incentive that cannot be ignored. One of the many legacies of slavery is the erasure of the history, humanity, and heritage of black people. The “want of information concerning my own,” as Douglass noted, cannot be overstated. Memory is the tool that helps regain and reconstruct the past and history. According to Emilie M. Townes, “Sites of memory are places where memory 'crystallizes and secretes itself.”’ They naturally lead to collective memory, which “endures and draws strength from individuals as group members who are drawing on the cultural and sociopolitical contexts of the group to remember.” Memory can present a significant impediment to black people's ability to share their history. This became particularly problematic when large segments of the black community were forced to translate and transfer their history through orality since Slave Codes criminalized reading and writing for slaves. Oral tradition can be a death knell when seeking to meet the THC requirements of providing evidentiary documentation, source materials, and bibliographic data. The potential impact is high in restricting access to applications for historical markers for people of color, particularly black people. Considering The Daniel Family Cemetery application, its highlights, its omissions, and its inclusions present a compelling case for the need to include the insights offered by CRT in the composition of our history.

This Article has argued that one must at least acknowledge the intersections and possibilities created by highlighting the “untold” and “undertold” stories that are all too often obscured by the history told by historical monuments. This Article has also attempted to answer the questions of the Israelite children in a contemporary context: “What are these stones?” Despite nearly 17,000 historical markers spread across the vastness of Texas, with ever more markers being erected, people will continue to pass by The Daniel Family Cemetery and never know or care to know exactly where “Old Frank,” aka Frank Daniel, and the “five slaves” (Kitty, Rose, Wash, and Mariah) lay because no stones are marking their graves. This Article seeks to serve as an honorary obituary and memorial stone for each of them by offering to dignify their humanity. These “highly vocal ghosts” and their blood are “cries out to Me from the ground.” The siege upon and resistance to CRT reveals that the United States is only comfortable lying on its “protective pillows” that reinforce the centrality and universalism of whiteness and preserving the patriotic and glorious aspects of its history while casting away gloomier or darker stones. Unfortunately, this stance stymies our nation's and the THC's ability to fulfill the motto of the latter, “Real Places Telling Real Stories.”

Ph.D. Student, SMU Graduate Program in Religious Studies, anticipated May 2026; J.D. 2003, Thurgood Marshall School of Law.