Redemption song: An analysis of the reparations movement
Jones, Christopher C
Look! The wages you failed to pay the workmen who mowed your fields are crying out against you. The cries of the harvesters have reached the ears of the Lord Almighty. You have lived on earth in luxury and self-indulgence. You have fattened yourselves in the day of slaughter. You have condemned and murdered innocent men, who were not opposing you.1
The movement for reparations2 to the descendents of American slavery is a volatile topic that invokes passionate responses from both sides of the issue. Many of these responses, however, are made without any knowledge of either the history of reparations or the relevant issues concerning the modern movement. Though this Article provides only a brief overview on the issue, its aim is to create a context for future discussions on the merits of reparations for American slavery and post slavery discrimination against African Americans, an issue that is continuously becoming more relevant to the national perspective.
Part II covers the history of reparations, relating both to slavery and otherwise, in America from the end of the Civil War to present day. Part III outlines current efforts at obtaining reparations for descendants of slaves. Part IV discusses legal theories and defenses that could arise in a lawsuit seeking reparations. Finally, Part V considers policy concerns, including the form and beneficiaries of reparations, as well as potential debtors and the future of affirmative action.
II. THE HISTORY AND BACKGROUND OF THE REPARATIONS MOVEMENT
The concept of reparations for the descendants of Africans held as slaves in the United States is not new. Since the end of slavery, there has been an ongoing debate over whether and how to improve the general condition of African Americans. In fact, one of the first entities to become involved in improving the condition of former slaves was the federal government, following the Civil War with the Freedmen’s Bureau. Subsequently, activists such as Queen Mother Moore3 and Martin Luther King, Jr., have sought to bring the issue of reparations to the forefront. More recently, case law concerning reparations in other contexts has developed that may well serve to advance the slavery reparations struggle significantly, as some descendants of slaves are beginning to look to the court system to recover reparations.4
A. The Freedmen’s Bureau
The Bureau of Refugees, Freedmen, and Abandoned Lands, commonly referred to as the Freedmen’s Bureau, was established on March 3, 1865 as the federal government’s first effort at aiding former slaves.5 Its mission was to address the concerns of refugees and freed slaves within the states that were under reconstruction following the Civil War.6 Commissioner General O.O. Howard was appointed by President Andrew Johnson to head the organization.7 The Bureau was a subsidiary of the War Department8 and completely dependent upon the department for its funding, staff, and other resources.9
The Bureau attempted to achieve its objective of improving the condition of newly freed slaves through a myriad of programs. Because education was unavailable to African Americans during slavery, the Bureau established schools specifically for the education of Freedmen, including Howard University in Washington, D.C.10 The Freedmen’s Bureau also worked to establish churches, as most African Americans had been offered no formal religion during slavery.11
Additionally, the Bureau sold and rented confiscated Confederate lands to ex-slaves in order to provide a solid economic base for the victims of slavery.12 The most famous of these efforts came with the help of General William T. Sherman. On January 16, 1865, General Sherman and Secretary of War Edwin M. Stanton met with African American community leaders in Savannah, Georgia during the General’s historic “March to the Sea.”13 The group discussed the future of captured Confederate lands that ultimately fell under the jurisdiction of the Freedmen’s Bureau.14 Following this meeting General Sherman issued Special Field Order #15, under the terms of which, each African American family was to receive forty acres and a government mule to work the land.15 General Sherman stated that his purpose was to “give the freedmen protection, land and schools as far and as fast as he [could].”16 This effort was later echoed in a bill presented to the Fortieth Congress by Pennsylvania Congressman Thaddeus Stevens which called for the “Forty Acres and a Mule” distribution to be made to freed slaves on a nationwide basis.17 As other confiscated lands became subject to the jurisdiction of the Bureau, there was much discussion of implementing this program on a wider basis to aid the development of more freedmen.18
However, the Bureau’s efforts were hampered by a severe lack of funding from the War Department, vicious opposition from conservatives, and a weak internal structure. The Bureau’s “death knell,” however, came from President Johnson himself in 1866 when he ordered all lands controlled by the Freedmen’s Bureau to be returned to the pre-Civil War owners.20 As a result of this order, freed slaves lost access to land, and the Freedmen’s Bureau lost its primary source of funding.21
B. Dr, Martin Luther King, Jr.
Many reparations supporters find validation for their viewpoints in the writings of Dr. Martin Luther King, Jr., the “patron saint” of the civil rights movement. Although one usually associates integration with Dr. King’s efforts rather than reparations, he was not silent on the issue. Proponents of the view that Dr. King supported reparations point to a passage in his book Why We Can’t Wait. Dr. King writes:
No amount of gold could provide an adequate compensation for the exploitation and humiliation of the Negro in America (or the Caribbean, or Brazil) down through the centuries. Not all the wealth of this affluent (American) society could meet the bill. Yet a price can be placed upon unpaid wages. The ancient common law has always provided a remedy for the appropriation of one human being by another. The law should be made to apply for American (Caribbean and Brazilian) Negroes. The payment should be in the form of a massive program by the government of special, compensatory measures, which could be regarded as a settlement in accordance with the accepted practice of common law. Such measures would certainly be less expensive than any computation based on two centuries of unpaid wages and accumulated interest. I am proposing, therefore, that just as we granted a G.I. Bill of Rights to war veterans, America launch a broad-based and gigantic Bill of Rights for the Disadvantaged, our veterans of the long siege of denial.22
To many current supporters of reparations, this passage serves as an endorsement of their efforts. Although not the center of Dr. King’s efforts, this passage is evidence that the concept of reparations was neither foreign nor implausible to the slain civil rights leader.
C. Reparations in the United States for Other Injured Groups
Although the remedies sought by the current proponents of the reparations movement would only redress the harms done to African Americans, many of the mechanisms, legal theories, and strategies being employed are borrowed from the actions brought by other groups of injured people.23 Past cases involving reparations serve to inform potential litigants of the possible arguments for and in opposition to a claim for slavery reparations. Additionally, these cases could stand as persuasive, if not binding, authority in the reparations struggle. Finally, examples in which the government has voluntarily paid reparations to other groups, such as those disbursed to Japanese Americans detained during World War II, can be used as precedent to justify reparations to descendents of slavery.
1. The Tulsa and Rosewood Race Riots
The cities of Tulsa, Oklahoma and Rosewood, Florida were both sites of vicious racial riots in the 1920s that resulted in the loss of hundreds of African American lives and thousands of dollars of damage to striving African American communities.24 In an effort to repair the damage of the 1921 Tulsa riot, the Oklahoma Legislature established the Tulsa Race Riot Commission, a group designed to research the incident and make recommendations for reparatory measures.25 The commission found over $15,300,000 of property damage and recommended reparatory measures, including direct payments to the survivors of the riot and their descendents.26 The legislature, however, failed to implement those recommendations in any meaningful way.27 The only gesture was the Tulsa Reconciliation Education and Scholarship Act,28 which provided 300 scholarships for Tulsa residents at state universities.29 This, however, was useless to the survivors of the riots, as most of them were in their nineties at the time the act was passed.30
Since that time, a lawsuit seeking more substantive reparations has been filed on behalf of the victims of the Tulsa riot by Professor Charles Ogletree of Harvard Law School, Johnnie Cochran, Dennis Sweet, and Willie Gary, all members of the Reparations Coordinating Committee (RCC).31 Because one of the primary purposes of the RCC is to obtain reparations for the descendants of slavery, some believe that this is a test case to determine the viability of a legal claim for slavery reparations.32 Regardless, this case is likely to have a significant impact on future reparations litigation.
The victims of the Rosewood race riot met with greater success in 1994 than their counterparts from Tulsa have to this point. The Rosewood victims brought an action against the State of Florida seeking damages as a result of the town’s 1923 race riot.33 The legal theory of recovery was wrongful death and loss of property that was unjustly confiscated and destroyed under color of law by state actors.34 The magistrate waived the four-year statute of limitations, a major hurdle for the plaintiffs, because they brought the action in equity.35 In his final report, the sitting magistrate reasoned that because moral claims are given substantial weight in equity, the statute of limitations would not apply.36 Basing his decision, in part, on the federal government’s reparations to Japanese Americans interned during World War II, the magistrate ultimately awarded the plaintiffs $2,100,000 in reparations for death, destruction of property, and other harms caused by the riot.37 Additionally, in 1994, the Florida Legislature approved $7,000,000 in reparations for victims of the riot and their descendents.38
2. Japanese Detainees of World War II
During World War II, the federal government removed more than 120,000 Japanese Americans from their normal, everyday lives and forced them into internment camps-a violation of their constitutional rights.39 Over thirty years later, the government established the Commission on Wartime Relocation and Internment of Civilians to investigate this incarceration of Japanese Americans during the war.40 As a result of the Commission’s findings, President Reagan signed into law the Civil Liberties Act of 1988, which provided an apology for and redress to the internees still living.41
Later in 1998, the Justice Department settled a lawsuit brought by individuals who were taken from their homes in Latin America and interned in the United States during World War II because of their Japanese ancestry.42 The members of this group were not beneficiaries of the Civil Liberties Act of 1988.43 The settlement made $5,000 in reparations payments available to over 2,200 Japanese Latin Americans who were victimized.44
3. Reparations Sought for Japanese Forced Labor
In In re World War II Era Japanese Forced Labor Litigation,45 people of Chinese and Korean ancestry sought compensation for the forced labor required of them by Japanese Corporations during World War II.46 On its face, this case would appear to potentially hold great promise of helping to predict the results of a slavery reparations suit against American corporations that helped perpetuate slavery, but the intricacies of international law and national foreign affairs prevented this case from ever reaching the merits of the claim itself.
The action was brought pursuant to section 354.6 of the California Code of Civil Procedure, which provides a cause of action for any World War II forced labor victim or their heirs.47 The District Court ruled that the peace treaty between the United States and Japan did not bar this suit because the nationals’ countries, China and Korea, were not parties to the treaty.48 However, the Court held that the statute of limitations had run on these claims pursuant to the Alien Tort Claims Act.49 Finally, and perhaps most importantly, the court held that the California statute was unconstitutional because it encroached upon the federal government’s exclusive power over foreign affairs.50 For these reasons, the plaintiffs were unsuccessful.
4. Reparations for Holocaust-Era Jews
A World War II-related case that may be crucial to the current slave reparations movement is Rosner v. United States51 because of its holdings on equitable tolling and implied-in-fact contracts. In Rosner, the plaintiffs brought a class action on behalf of Hungarian Jews and their descendants whose personal property was stolen by Nazis, transported by the “Hungarian Gold Train,” and later captured by the United States Army in Austria.52 The complaint alleged a breach of an implied-in-fact contract of bailment.53 The defendant moved to dismiss the complaint arguing both that the claim was barred by the sovereign immunity of the United States, and that the allegation of a breach of an implied-in-fact contract failed to state a claim upon which relief could be granted.54
The court first addressed the government’s sovereign immunity defense.55 Under 28 U.S.C. [sec] 2401(a), civil actions against the United States government not brought within six years of the time the right of action arises are barred by sovereign immunity.56 The United States, therefore, argued that the suit was barred by this statute of limitations because Hungarian Jews knew about the U.S. Army’s possession of the property as far back as 1947.57 The plaintiffs responded with two counter-arguments: (1) the doctrine of continuing violation had imposed a new statute of limitations that had not yet expired, and (2) the period for filing the action should be tolled by the principles of equitable tolling.58
The doctrine of continuing violation “provides that a claim, which otherwise would be precluded because it is based on conduct that falls outside the limitation period, may nonetheless be considered timely if there is a ‘substantial nexus’ between that conduct and conduct occurring within the limitations period.”59 The plaintiffs argued that the government’s refusal to return their property and its misrepresentation of the property as unidentifiable constituted an ongoing violation.60 Thus, the plaintiffs argued, the applicable statute of limitations had not yet started running.61 The court rejected this argument, noting that the continuing violation doctrine was usually restricted to employment cases where the statute of limitations was very short and where the egregious conduct involved several minor offenses taking place over a long period of time.62 Because these concerns were not present, the court was unwilling to extend the doctrine to this case.63 In addition, the court rejected this argument because the plaintiffs had not alleged any unlawful act committed by the United States Army within six years prior to bringing the action.64 Therefore, the court held that there was no unlawful conduct falling within the limitations period to form the basis for their claim.65
However, the court sided with the plaintiffs on the issue of equitable tolling.66 “The equitable tolling doctrine allows plaintiffs to sue after the expiration of the applicable statute of limitations, provided they have been prevented from doing so due to inequitable circumstances.”67 The plaintiffs argued that the United States government “kept them ignorant of vital information” necessary for them to pursue their claims.68 Additionally, the plaintiffs argued that the unique circumstances surrounding the Holocaust warranted the application of the equitable tolling doctrine.69 The court held that the plaintiffs’ allegations satisfied the Supreme Court test that ‘”the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.'”70 The court recognized that the plaintiffs had alleged such misconduct.71 The court also noted that in the years after World War II, Jewish refugees had a particularly difficult time even with the necessities of life, and a failure to allow equitable tolling would result in the government being able to benefit from its alleged wrongful conduct.72
The court then addressed the plaintiffs’ claim for breach of implied-in-fact contract.73 “To state such a claim, a claimant must show ‘mutuality of intent to contract, offer and acceptance, and that the officer whose conduct is relied upon had actual authority to bind the government in contract.'”74 The U.S. argued that the plaintiffs had not properly alleged any expression of intent on the part of the government to return the property.75 The plaintiffs asserted that the government: (1) accepted the property from the “Gold Train” with express knowledge that it belonged to the plaintiffs; (2) never claimed ownership of the property; (3) took possession with the intent of retuning it to the owners; (4) expressly indicated that any identifiable property would be returned to the rightful owners in accordance with United States custom and policy; and (5) falsely asserted that the property was unidentifiable and, therefore, breached its contract with the rightful owners.76 Based on these assertions, the court found that the claim could survive a motion to dismiss.77
III. THE CURRENT REPARATIONS MOVEMENT
The current wave of legal actions seeking reparations is the latest chapter in the ongoing struggle over reparations. While the early efforts of the Freedmen’s Bureau and others focused on addressing the harms caused exclusively by slavery, the modern reparations movement seeks redress for two groups of harms: those caused by slavery and those caused by a system of racial discrimination in America since the end of slavery.78 The current movement may arguably trace its origins to H.R. 3745, a bill proposed by U.S. Representative John Conyers in 1989.79 The purpose of this bill was to ‘”establish a commission to examine the institution of slavery . . . and economic discrimination against African Americans . . . to make recommendations to the Congress on appropriate remedies.'”80 The bill has been ineffective, however, failing to attract any support from members of Congress.81 The current movement received a shot in the arm, however, when the Chicago City Council, on May 18, 2000, voted forty-six to one in support of a resolution urging Congress to consider H.R. 3745.82 Since then, similar resolutions have been passed by the city councils of Detroit, Dallas, Cleveland, and Washington D.C.83
Outside of these efforts at encouraging legislation, other members of the reparations movement have looked to the courts for relief. The two actions that have attracted the greatest media attention are those initiated by Deadria Farmer-Pullman and by Jonnie Cochran, Randall Robinson, and Professor Charles Ogletree of the RCC.84
A. The Farmer-Paellmann Action
On March 26, 2002, Deadria Farmer-Paellmann filed a class-action lawsuit “on behalf of the 35 million African Americans” who are “estimated to be the descendants of slaves.”85 The suit names several prominent American corporations as defendants, including CSX Railroad Company and Aetna Insurance.86 The lawsuit asserts that the defendants have been unjustly enriched by slave labor: CSX by using slave labor in its railway construction and Aetna for insuring slaves and other plantation property.87 Further, the lawsuit asserts that the current disparities between African Americans and whites in the United States are a product of both slavery and over a century of institutionalized racism.88 In sum, the suit seeks a jury trial, compensatory and punitive damages, the appointment of an independent historic commission, and restitution for years of slave labor.89
B. The Proposed Ogletree, Cochran, Robinson Action
While Deadria Farmer-Pullman has filed her action and set forth a legal theory of recovery, another, perhaps broader-reaching action remains somewhat shrouded in mystery. The RCC, the group bringing the aforementioned claim seeking further reparations for the victims of the Tulsa race riots,90 is co-chaired by Harvard University Law Professor Charles Ogletree and Randall Robinson, author of The Debt: What America Owes to Blacks.91 Aside from that litigation, the group has been preparing what promises to be the largest reparations case in the history of the United States. They have also received assistance from high-profile attorney Johnnie Cochran, as well as a number of other lawyers and scholars.92
As of the writing of this article, though members of the RCC have sought reparations for victims of the Tulsa riots, they have not filed a slavery reparations action in any court. Nor have they, most likely for strategic reasons, articulated a specific legal cause of action or strategic approach to slavery reparations claims. The group has, however, named several potential high-profile defendants.93 These possible defendants include Aetna, New York Life, AIG, J.P. Morgan, Chase Manhattan Bank, and FleetBoston Financial Group.94 It is likely that the theory of recovery will be similar to that of the Farmer-Pullman action-a theory of unjust enrichment for financing, insuring, and otherwise facilitating the slave trade. Additionally, the group has stated that it may choose to sue several prestigious American universities including Harvard, Yale, Princeton, and the University of Virginia.95 The group will also likely name the United States government as a defendant for its failure to protect African Americans under the Constitution and anti-discrimination laws.96
C. Claims for Reparations Made by African Nations Against the United States and Europe
The reparations movement is not limited to the shores of the Americas. A group calling themselves “The African World Reparations and Repatriation Truth Commission” asserts that the United States and the countries of Western Europe who have “benefited” from the slave trade should pay $777 trillion in damages to African countries and countries in the African Diaspora under a theory of unjust enrichment.97 The proponents claim that the nations of North America and Europe have unjustly benefited by having their development accelerated by the use of slave labor.98 According to critics of this proposal, it would take the targeted nations over fifty years to repay this debt, even if they were to surrender their entire gross national products each year.99 Critics also point out that the several Middle-Eastern and North African countries that participated in the slave trade are not named by the commission.100 Those in opposition to the commission’s assertions state that a more equitable solution would be to seek reparations from individuals and specific institutions that have profited from the slave trade.101
IV. POTENTIAL LEGAL AND EQUITABLE THEORIES OF RECOVERY
A. Special Field Order #15: Contract and Fifth Amendment Claims
Special Field Order #15 could provide both a contractual and constitutional basis for a descendant of slavery attempting to recover from the federal government.102 A contract is “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”103 A breach of contract is a “violation of a contractual obligation, either by failing to perform ‘one’s own promise or by interfering with another party’s performance.”104 A reparations claimant could use Special Field Order #15 to argue that the United States established a legally cognizable contract with the newly freed slaves of the United States by virtue of its promise to implement the field order on a national basis.105 Additionally, the claimant would likely attempt to extend this theory of recovery to other government programs that were promised to African Americans but never implemented. The claimant could also plausibly argue that there was such a level of bad faith and unequal bargaining power that this breach approaches the level of tortious conduct.
This is a very tenuous claim for reparations. Although it could be argued that that the United States created a contract through its agents, Generals Howard and Sherman, with former slaves to deliver confiscated Confederate land, the opposing side would point out that beyond General Sherman’s special field orders, there was no official legislation or Executive Order expressly authorizing the distribution of land. While the claimant could argue in the alternative that a valid implied-in-fact contract, similar to the one alleged by the Hungarian Jews against the U.S. in Rosner,106 was established, this theory is weakened by the inconsistent actions of the Freedmen’s Bureau and General Sherman. The opponent would therefore be able to argue that these inconsistencies would have provided the ex-slaves a reason to know that no intent to create a contract existed.
In addition to a contracts theory, Special Field Order #15 could potentially open the door to a 5th Amendment claim. The potential claimant could assert that President Johnson’s order to return the land to its pre-Civil War holders, which effectively destroyed the efforts of Special Field Order #15, constituted a “taking” in violation of the Fifth Amendment of the Constitution. The Fifth Amendment of the Constitution reads in relevant part: “[N]or shall private property be taken for public use, without just compensation.”107 The claimant would assert that the capturing of land from the newly freed slaves and its return to its pre-Civil War owners was an unconstitutional taking.108
Though this appears to be a sound theory of recovery, opponents would point out problems with implementation. First, only those persons who could establish a direct familial link to the ex-slaves who were deprived of this land would have standing to bring this claim. Opponents would note that this probably would represent only a scintilla of the African-American population. Second, as the records of slaves and slave owners are sparse at best, opponents would point to the extreme difficulty of establishing a relationship between a claimant and an ex-slave who was the victim of an unconstitutional taking.
B. Unjust Enrichment
Another way to potentially reach the federal government would involve, as in the Farmer-Paellman action, a claim for restitution or unjust enrichment.109 Restitution is the “[r]eturn or restoration of some specific thing to its rightful owner or status.”110 The reparations claimant would assert that specific defendants, such as American corporate actors and the United States government, profited unjustly from the use of slave labor.111 Additionally, the claimant would assert that insurance companies, such as Aetna, have been unjustly enriched by profiting from providing insurance to plantation owners and slave ship builders.112
Potential defendants in such an action would argue that they cannot be fairly said to have participated in any activity that at the time was illegal. While the horrors of slavery are well documented, they will point out that the reality was that slavery was very much a legally permitted practice. Further, opponents will note that many of these companies are several corporate incarnations removed, through mergers and acquisitions, from the original companies that participated in the slave trade, thus making the line of responsibility even more tenuous. In addition, they might argue that many of these companies now employ thousands of African Americans, provide valuable services to African Americans, and/or have made great strides in implementing affirmative action programs in their industries.
C. Tort Actions
The hypothetical reparations claimant would also likely bring a variety of tort claims.113 These would include actions for battery, assault, false imprisonment, and intentional infliction of emotional distress. Unlike contract actions, these tort actions would require more specificity in the pleadings concerning specific victims and incidents. This would also place a greater burden on the claimant to identify specific culpable parties.
An individual is liable for battery when “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) a harmful contact with the person of the other directly or indirectly results.”114 An individual is liable for assault when “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) the other is thereby put in such apprehension.”115 The claimant would simply assert that specific incidents of battery, such as slave beatings and lynchings that were prevalent throughout slave era America caused physical harm to specific African Americans and that the perpetrators of these acts are liable for damages for the commission of a battery. Additionally, out of the same or similar incidents, the claimant would argue that specific perpetrators intentionally placed specific African Americans in “apprehension of imminent harmful or offensive contact.”
One is liable for false imprisonment when “(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in a confinement of the other, and (c) the other is conscious of such confinement or is harmed by it.”116 The reparations claimant would assert that the capture and transportation of African slaves to the Americas represents an actionable tort of false imprisonment. In addition, the claimant would assert that the years of plantation captivity experienced by slaves in the United States give rise to numerous counts of false imprisonment against specific individuals.
Finally, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”117 The reparations claimant would, under this theory, assert that specific individuals caused specific slave victims emotional harm through their intentional or reckless acts.118 These claims would likely arise out of the same facts as those that would give rise to actions for battery, assault, and false imprisonment. These claims, like those above would, again, require particularized facts concerning perpetrators, victims, and incidents.
The opponent of a reparations suit would likely highlight a number of weaknesses in the proponent’s claim for relief under a traditional tort theory. First, while there may be historic examples of the prevalence of brutality directed towards slaves, identifying the precise date, time, individual victim, and culpable party would likely be impossible in the vast majority of potential cases because slaves could neither read nor write to record specific torts.119 The opponent of a reparations action also may well argue that all of the aforementioned torts require harm to be caused to another person. Because slaves were not, during slavery, recognized as persons, there would be no cognizable tort for harm done to them.120 Last, and perhaps most important, the opponent of a reparations suit would point out that the alleged perpetrators, as well as the alleged victims, of these torts are all deceased.
D. Legal and Equitable Defenses: Statute of Limitations and Laches
Aside from the arguments outlined above, potential defendants are likely to raise the statute of limitations and the laches defense due to the amount of time that has elapsed since the abolition of slavery. In response to the statute of limitations defense, like the plaintiff in Rosner,121 the proponent of the reparations suit would argue that the conditions of African Americans during and after slavery warrant the application of the doctrine of equitable tolling. Although the plaintiff would not be able to point to any acts by the government similar to those in Rosner that prevented the claim from being brought into court, the Rosner court did note that according to the Supreme Court, equitable tolling “may [also] be appropriate in other circumstances.”122 Therefore, the proponent would point out that, like the long-suffering plaintiffs in Rosner,123 former slaves and their defendants were unable to bring their claim. Specifically, the claimant would point to the disenfranchised, uneducated and impoverished conditions of African Americans in post-Civil War America.124 Additionally, the claimant would point out the de facto discrimination of Reconstruction-era America, the institution of segregation, and the failure of the United States government to protect the constitutional rights of African Americans as providing other just causes for applying the doctrine of equitable tolling.125
The defendant would respond that since the end of the Civil War, African Americans have been free to organize and work to improve their condition. Further, the opponent would likely argue that groups such as the Freedmen’s Bureau and NAACP have attempted to improve the condition of African Americans, eliminating the need for equitable tolling.
As noted, the opponent to a reparations action would likely also raise the defense of laches to any claim brought at equity. Laches is “[unreasonable delay or negligence in pursuing a right or claim-almost always an equitable one-in a way that prejudices the party against whom relief is sought.”126 This doctrine serves to bar the claim if the plaintiff has “slept on his rights.”127 The defendant of a reparations suit would argue that the alleged cause of action occurred so far in the past that they, as defendants, would be prejudiced by the lapse in time.
The plaintiff would respond that any delay in bringing these actions would be, given the condition of African Americans during slavery and since, the product of disenfranchisement and lack of access to the legal system, as opposed to negligence or lack of diligence. Further, in actions involving the government, it could be argued that the government should precluded from asserting a laches defense because the government contributed to the lack of access to the legal system by allowing segregation to flourish for so many years.
V. POLICY CONSIDERATIONS
The public policy considerations surrounding the reparations movement provide fertile ground for debate. There is much disagreement, even among reparationists, over the form reparations should take, who should get reparations, and who should pay reparations. Additionally, the current reparations movement calls into question the future of current anti-discrimination and affirmative action programs.
A. What Form Should Reparations Take?
Assuming that reparations should be made, a host of issues arise concerning the form of reparations. Should each African American receive a cash disbursement? Should there be an income tax credit for African Americans? Should corporations be forced to invest resources into blighted urban areas? Should reparations include an apology? Should reparations be limited to an apology?
Experts classify monetary reparations into one of two categories based on their purpose.128 If the purpose is compensatory, then the reparations are given to place the individual injured party in the position that she was in prior to her victimization.129 If the purpose is rehabilitative, then the reparations are given to “repair a community or a culture.”130
The main proponents of the current reparations movement do not support individual cash disbursements. These advocates ask instead for a publicly funded trust from which funds would be used to implement education and economic development programs for African Americans intended to end the cycle of poverty and undereducation found in many African American communities.131 Charles Ogletree, the Harvard law professor co-chairing the RCC, analogized this proposal to the Marshall Plan implemented after World War II to rebuild Europe.132 Such a plan would involve collaborative efforts between the government, schools, churches and private corporations. The goal would not be one-time compensation, but rather perpetual healing aimed at long-term viability.
B. Who Should Receive Reparations?
Should Oprah Winfrey, Tiger Woods and Colin Powell receive reparations payments? This rhetorical question highlights the complexities of determining who should be the beneficiaries of the reparations movement. This question is difficult to answer because many African Americans, in spite of slavery and segregation, appear to have achieved the American dream. Further, there are many African Americans whose ancestors did not migrate to the United States until slavery had been abolished. Are these African Americans entitled to a reparations payment? What about the position of reparations supporters, like Randall Robinson, who insist that the benefits should only be made available to the poorest African Americans who have not benefited from affirmative action and other programs?133
As a threshold issue, however, is the basic argument that the only people entitled to reparations are the actual slaves who were harmed, and they are all dead.134 Those making this argument would preclude even ancestors of slaves from recovering. In counterpoint, however, is the argument that current disparities in healthcare, education, and wealth between black and white Americans are a direct product of the institution of slavery.135 Furthermore, proponents would note that, as stated above, the current reparations movement not only seeks to redress harms caused by slavery but also harms caused by years of discriminatory practices since slavery.136
C. Who Should Pay for Reparations?
The issue of who would be obligated to pay for reparations centers around the question of whether only those who directly caused slavery should pay, or whether those who benefited should also pay. First, opponents of reparations point out that the vast majority of American immigrants came to America after the Civil War and never participated in the institution of slavery.137 If the federal government pays reparations, these immigrants will help bear the burden for a harm of which they took no part. Should the descendants of Irish immigrants who came to America at the turn of the century pay for the harms of slavery? Proponents of reparations respond that there is established precedent from the claims brought by other groups. For example, the proponents point out that not all Americans deprived Native Americans of land or detained Japanese Americans during World War II. Nevertheless, the United States government has taken reparatory measures for those groups.138 Additionally, proponents argue that all non-African Americans have benefited, even if only indirectly, from a system of segregation that kept African Americans from competing for places in the workforce and higher education.139
Second, opponents of reparations note that slavery was only practiced in the southern states. Should the State of Massachusetts, for instance, bear the burden for Georgia’s wrongful conduct? For that matter, should Hawaii and Alaska, states founded well after slavery, have any debt to pay at all? Proponents respond to this argument by pointing out that the hand of slavery reached further than the Deep South. They argue that northern industrialists were also the beneficiaries of the products of slave plantations.140 Moreover, recently uncovered documents provide evidence that slave labor was used to construct the White House and the United States Capitol.141
Finally, the reparations opponents accurately point out that there is proof that African Americans owned plantations that used slave labor.142 This practice thrived primarily in Louisiana, where freed slaves owned as many as one hundred slaves.143 Why should the descendants of these families not be required to pay reparations as opposed to receiving a benefit? Proponents of reparations can simply respond, however, that regardless of the answer to that question, the fact that a relative few ex-slaves managed to acquire land and own slaves does not invalidate the harm done to African Americans as a group. Nor, proponents can note, does it legitimize the practice of slavery, because it cannot be fairly argued that the ability to move out of slavery and own land was a reality for more than a nominal fragment of the slave population. Moreover, they can argue, as the reparations movement seeks to redress harms caused by de facto segregation as well as slavery, black plantation ownership by a few freed slaves in Louisiana has little bearing on those claims.
D. The Future of Affirmative Action and Other Anti-Discrimination Programs
Many in opposition to the reparations movement argue that African Americans have already received reparatory measures. These opponents argue that welfare and public housing programs established by the government have already sought to improve the condition of African Americans in the United States. Furthermore, they argue that affirmative action programs in education and corporate America have compensated the descendants of slavery.
Reparation supporters maintain that in spite of these efforts, reparations are still needed. These proponents argue that affirmative action has benefited all minorities and not just African Americans. Moreover, a great number of African Americans have never been able to take advantage of affirmative action programs and remain left behind. The supporters argue that welfare programs also were never specifically targeted to redress the harms of slavery and do nothing to close the gaps in education, economics, and healthcare.144
Supporters of reparations argue that reparations address a more fundamental set of injuries specific to African Americans than do affirmative action and welfare. While there are laws protecting all minorities by prohibiting discriminatory treatment in hiring and promotion in the workforce, they argue that the institution of slavery, along with decades of de facto segregation, have contributed to a cycle of poverty and poor education that threatens the future of African Americans in a unique way.
The current reparations debate is but the latest chapter in America’s struggle to deal with a problem that is older than the nation itself. There can be no doubt that the United States owes a moral debt to the descendants of African slaves. There can likewise be no doubt that one must strain the principles of American jurisprudence in order to fashion a remedy. Though genuine reparatory acts may be justified, no remedy should ignore the principles of law and equity in the name of providing redress; such a disregard may plant the seeds for a future holocaust as horrible as slavery itself.
1. James 5:4-6 (New International Version).
2. Reparations is defined as: “1. The act of making amends for a wrong. 2. (usu. pl.) Compensation for an injury or wrong, esp. for wartime damages or breach of an international obligation.” BLACK’S LAW DICTIONARY 1301 (7th ed. 1999).
3. Queen Mother Moore: A Life of Struggle, REVOLUTIONARY WORKER, May 25, 1997, at 13, available at http://rwor.org/a/v19/905-09/908/queen.htm (last visited Feb. 8, 2003).
4. See infra Part II.C.
5. The Freedmen’s Bureau, IATH: The Institute for Advanced Technology in the Humanities, at http://www.iath.virginia.edu/vshadow2/HIUS403/freedmen/over-view.html (on file with Author); see also PAUL SKEELS PIERCE, THE FREEDMEN’S BUREAU 46-54 (1971).
6. JOHN HOPE FRANKLIN, FROM SLAVERY TO FREEDOM: A HISTORY OF AMERICAN NEGROES 302-03 (1947).
9. The Freedmen’s Bureau, supra note 5; see also PIERCE, supra note 5, at 46-54.
10. RAYFORD LOGAN, HOWARD UNIVERSITY: THE FIRST HUNDRED YEARS 1867-1967, at 3-68 (1969).
11. The Freedmen’s Bureau, supra note 5.
12. FRANKLIN, supra note 6, at 302-03.
13. Forty Acres & a Mule: Civil War: Special Field Order #15, Black Heritage Day II, at http://www.isomedia.com/homes/bhd2/40_acres_and_mule.htm (last visited May 19, 2003).
16. Id.; see also PIERCE, supra note 5, at 1-33.
17. H.R. 29, 40th Cong. (1867), available at http://www.directblackaction.com/rep_bills/hr29_1867.txt (last visited Feb. 8, 2003).
18. The Freedmen’s Bureau, supra note 5. See generally PIERCE, supra note 5.
19. The Freedmen’s Bureau, supra note 5.
21. Id.; see also PIERCE, supra note 5.
22. MARTIN LUTHER KING, JR., WHY WE CAN’T WAIT 137 (1964).
23. See infra Parts II.C.2-4; see also Lyle Denniston, Reparations Lawyers Eye Fla. Decision, THE BOSTON GLOBE, Sept. 22, 2002, at A1.
24. Martha L. Warton, Tulsa, Rosewood Riots and The Precedent for Reparations, NorthStar Network (Sept. 20, 2002), at http://www. thenorthstarnetwork.com/news/heritage/181-512-1.html (last visited May 20, 2003).
25. 1997 Okla. Sess. Law Serv. 1035 (West date needed).
26. Wharton, supra note 24.
28. OKLA. STAT. tit. 70, [sec] 2620 (2002).
29. Id. [sec] 2621.
30. Wharton, supra note 24.
31. Walter Higgins, Landmark suit seeks reparations for deadly 1921 Okla. Riot, Final Call.Com, at http://www.finalcall.com/artman/publish/article_567.shtml (Mar 13, 2003).
32. See DeWayne Wickham, Tulsa case is key reparations test, USA TODAY, March 24, 2003, available at http://www.usatoday.com/news/opinion/columnist/wickham/2003-03-24-wickham_x.htm.
39. Historical Overview of the Japanese American Internment, The Civil Liberties Public Education Network, at http://www.momomedia.com/CLPEF/history.html (last visited Feb. 8, 2003).
41. Id.; 50 U.S.C. app. [sec] 1989b (1990 & Supp. 2002).
42. U.S. to Pay Japanese Latin Americans held During WWII, CNN.com, at http://www.cnn.com/WORLD/americas/9806/12/japanese.reparations/ (June 12, 1998).
45. 164 F. Supp. 2d 1160 (N.D. Cal. 2001).
46. Id. at 1164 (citing CAL. CODE CIV. PROC. [sec] 354.6(b) (1999)).
48. Id. at 1165.
49. Id. at 1180-82.
50. Id. at 1168.
51. 231 F. Supp. 2d 1202 (S.D. Fla. 2002).
52. Id. at 1203-04.
53. Id. at 1204. The plaintiffs also alleged a violation of the 5th Amendment for the taking of property. Id. The court dismissed this claim because none of the plaintiffs were citizens of the United States at the time of the alleged taking, nor had they shown a substantial connection with the United States to overcome the citizenship burden. Id. at 1214.
54. Id. at 1204.
55. Id. at 1206.
59. Id. at 1207 (citing Roberts v. Gadsden Mem’l Hosp., 835 F.2d 793, 800 (11th Cir. 1988); Dunn v. Air Line Pilots Ass’n, 836 F. Supp. 1574, 1583 (S.D. Fla. 1993)).
62. Id. at 1207-08.
63. Id. at 1208.
67. Id. (citing Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998); Justice v. United States, 6 F.3d 1474, 1475, 1479 (11th Cir. 1993)).
70. Id. (quoting Young v. United States, 535 U.S. 43, 50 (2002)). An alternative test voiced by the Supreme Court is ‘”when the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period.'” Id. (quoting Young, 535 U.S. at 50). Even when these two tests have not been met, however, the Court has said that ‘”tolling might be appropriate in other cases’ as well.” Id. at 1208-09 (quoting Young, 535 U.S. at 50).
71. Id. at 1209.
73. Id. at 1214.
74. Id. (quoting H.F. Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed. Cir. 1984)).
76. Id. at 1214-15.
77. Id. at 1215.
78. See Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597, 627-44 (1993).
79. See The Case for Reparations: Why? How Much? When?, EBONY, Aug. 1, 2000, available at http://www.findarticles.com/cf_0/m1077/10_55/63735677/p1/article.jhtml (last visited Feb. 17, 2003).
80. Id. (quoting H.R. 3745, 101st Cong. (1st Sess. 1989)).
84. See Peter Viles, Suit Seeks Billions in Slave Reparations, CNN.com/LAWCENTER, at http://www.cnn.com/2002/LAW/03/26/slavery.reparations/ (Mar. 27, 2002); see also Emily Newburger, Breaking the Chain, Harvard Law Bulletin, Summer 2001, available at http://www.law.harvard.edu/alumni/bulletin/2001/summer/feature_2-fulltext.html.
85. Seth Stern, Slave Reparations Are Unlikely, but Lawsuit May Prod Companies, CHRISTIAN SCI. MONITOR, Mar. 28, 2002, available at http://www.csmonitor.com/2002/0328/p02s01-usju.html.
87. U.S. Firms Face Slave Reparations Suit, BBC News, available at http://news.bbc.co.uk/2/hi/business/1893321.stm (Mar. 26, 2002).
90. See supra text accompanying notes 31-32.
91. Newburger, supra note 84.
93. Phouc La, Yale Possible Target of Reparations Civil Suit, THE YALE HERALD, Mar. 29, 2002, available at http://www.yaleherald.com/article. php?Article=466 (last visited May 19, 2003).
96. Denniston, supra note 23, at A1.
97. Africa Seeks 777 Trillion Dollars In Reparations For Enslavement, The Emancipation Destination, at http://www.w3taxi.com/emancipation/africa.shtml (last visited Feb. 8, 2003).
102. See Jack Hitt, Making the Case for Racial Reparations, HARPER’S MAGAZINE, Nov. 2000, at 37.
103. RESTATEMENT (SECOND) OF CONTRACTS [sec] 1 (1981).
104. BLACK’S LAW DICTIONARY 182 (7th ed. 1999).
105. See Hitt, supra note 102, at 37. See also supra notes 12-21 and accompanying text.
106. See supra notes 73-77 and accompanying text.
107. U.S. CONST. amend. V.
108. Hitt, supra note 102, at 37.
109. See supra Part III.A.
110. BLACK’S LAW DICTIONARY 1315 (7th ed. 1999).
111. See supra Part III.A.
114. RESTATEMENT (SECOND) OF TORTS [sec] 13 (1965).
115. Id. [sec] 21.
116. Id. [sec] 35.
117. Id. [sec] 46.
118. Hitt, supra note 102, at 37.
119. See Robert Tracinski, America’s “Field of Blackbirds”: How The Campaign for Reparations for Slavery Perpetuates Racism, 3 J.L. SOC’Y 145 (2002).
120. FRANKLIN, supra note 6, at 186-95 (detailing the lack of recognition of slaves so as to bring an action in tort as enforced by the “Black Codes” of the slave era).
121. See supra text accompanying note 57.
122. Rosner v. United States, 231 F. Supp. 2d 1202 (S.D. Fla. 2002) (quoting Young v. United States, 535 U.S. 43, 50 (2002)); see supra note 70.
123. See supra text accompanying note 72.
124. Hitt, supra note 102, at 37; see also FRANKLIN, supra note 6, at 302-03; ROBERT LISTON, SLAVERY IN AMERICA: THE HERITAGE OF SLAVERY (1972).
125. Hitt, supra note 102, at 37.
126. BLACK’S LAW DICTIONARY 879 (7th ed. 1999); see also DAN B. DOBBS, LAWOFREMEDIES [sec] 2.4 (1993).
127. DOBBS, supra note 126, [sec] 2.4.
128. Mathew Manweller, Can a Reparations Package be a Bill of Attainder?, 6 THE INDEP. REV. 555, 556-57 (2002), available at http://www.independent.org/tii/mediaypdf/tir64manweller.pdf.
129. Id. at 556.
131. Id. at 557.
132. Matthew Tokson, The Reparations Debate on Campus: Weak, DARTMOUTH REV., FEB. 4, 2002, available at http://www.dartreview.com/archives/000-237.php (last visited Feb. 8, 2003).
133. RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS 199-234 (2000).
134. Tracinski, supra note 119, at 146.
135. See LISTON, supra note 124, at 13.
137. David Horowitz, Ten Reasons Why Reparations For Blacks is a Bad Idea-and Racist Too, FrontPage Magazine.com, at http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=1153 (Jan. 3, 2001).
138. Matthew Whitaker, Careful Look at History Can Give Us Perspective, ARIZ. REPUBLIC, Sept. 1, 2002, available at http://www.arizonarepublic.com/viewpoints/articles/0901turn0901whitakerhtml.
139. Akilah Monifa, Slave Labor Built Our National Monuments, Progressive Media Project, Aug. 8, 2000, available at http://www.progressive. org/mpbvmo00.htm.
140. Whitaker, supra note 138.
141. Monifa, supra note 139.
142. E. FRANKLIN FRAZIER, BLACK BOURGEOISIE 30-34 (1957).
144. Newburger, supra note 87.
CHRISTOPHER C. JONES*
* J.D. Candidate May 2003, University of Memphis, Cecil C. Humphreys School of Law; B.A., 1994, Talladega College. I would like to thank Professor Steven Mulroy for his guidance. I would also like to thank Eddie, Robbie, and Amy Jones for a lifetime of love and support.
Copyright University of Memphis Winter 2003
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