Dream Deferred or Fantasy: Reflections on the Current Black Reparations Movement in the United States
Taunya Lovell Banks
University of Maryland School of Law
© Ms Taunya Lovell Banks, no reproduction, cite or quote can be made without the author's consent.
I. Introduction
In 1982 the Commission
on Wartime Relocation and Internment of Civilians, created by Congress,
issued its final report concluding that the wartime evacuation and relocation
of people of Japanese ancestry from the west coast of the United States
pursuant to Executive Order No. 9066 was not justified by military necessity.[1]
Congress, relying on the Commission's findings, enacted the Civil Liberties
Act of 1988 providing each former internee "symbolic" redress
- a letter of apology from the President and $20,000.[2]
The Act also established a public education fund. [3]
Federal and state government officials used the December 7, 1941 bombing
of Pearl Harbor by the Japanese Empire to justify the internment of
people of Japanese ancestry. [4] The United States
Supreme Court in upholding the government's actions relied on similar
government assertions, we now know were false. [5]
Most shocking is that two thirds of the 120,000 people of Japanese ancestry
removed from their homes and interned by the government in 1942 were
native-born American citizens.[6] The internment of
Japanese Americans was the first time that the federal government imposed
a deprivation or restraint on citizens based solely on race or
ancestry. [7]
"History has shown that greed, prejudice and 'race' hatred had
more to do with the internment of Japanese Americans than concern for
national security." [8] Likewise, greed, prejudice
and race hatred also account, many scholars are now arguing, for the
differences in socio-economic status between white and black Americans.
How else, they argue, can one explain the persistent of these disparities.
Sparked in part by the success of the Japanese-American reparation movement,
the latest push for black reparations is gaining momentum in the United
States. [9] The notion of reparations has long been
popular among black working class Americans, but lately there is increasing
support from black professionals and intellectuals.[10]
Many blacks, disillusioned with the lack of progress under, and the
decline of token affirmative action, "consider reparations for
slavery and its legacy . . . a more responsible accounting for human
and civil rights violations than affirmative action." [11]
Calls for black reparations come at a time of mounting conservatism.
There is strong opposition by white Americans to affirmative action
efforts designed to aid black Americans, and widespread distrust of
government, especially at the national level.[12]
In addition, the case for reparations to Japanese Americans interned during World War II is arguably distinguishable from the case for black reparations. The closeness of the incidents, size of the population seeking redress, and available accounting of damage is much stronger for interned Japanese Americans than for black Americans. Nevertheless, there are some important strategic lessons to be learned from the success of Japanese Americans in securing reparations from the federal government.
After the end of World War II the federal government enacted the Evacuation
Claims Act of 1948 which provided Japanese Americans compensation for
proven tangible losses to real and personal property.[13] Japanese Americans trying to use this act got little redress. Three
years later Congress, in an attempt to speed up relief, provided for compromise settlements of $2500 per family. [14] Natsu Sato writes that "of the $400 million in material loss estimated
by the Federal Reserve Bank of San Francisco, less than ten cents on
the 1942 dollar was paid under the Claims Act." [15]
A generation later, in the 1970s, a political movement seeking redress
for the internment developed within the Japanese American community.
In 1980 the National Coalition for Redress/Reparations (NCRR) was organized.
The NCRR, an activist group, promoted political activities like letter-writing
campaigns and public education programs. [16] Then
United States Senator Daniel Inouye, a Japanese American from Hawaii
who lost an arm while fighting in World War II, was successful in getting
Congress to establish the Commission on Wartime Relocation and Internment
of Civilians. [17]
In 1983 following the release of the Commission's preliminary report,
and the filing of coram nobis petitions by Japanese Americans convicted
of violating the evacuation order, William Hohri and the National Council
for Japanese American Redress filed a class action redress suit on behalf
of all surviving Japanese American internees. They requested $ 24 million
for the "summary removal from their homes, imprisonment in racially
segregated prison camps, and mass deprivations of their constitutional
rights." [18] Ultimately, the United States Supreme
Court dismissed the case.[19] As Professor Saito notes,
Japanese Americans obtained redress through political action, not the
courts. [20]
Black Americans were reminded of this fact in 1995 when the United States Court of Appeals for the Ninth Circuit upheld a lower court's dismissal of a claim by two groups of black American plaintiffs seeking in excess of $100 million in reparations. The plaintiffs sought reparations for the enslavement of black Americans, and subsequent discrimination against them. They also sought an acknowledgment of race-based discrimination and an apology. [21]
The appellate court noted that reparations for the internment of Japanese Americans was a political act and not legally required, saying that the litigants in this case should seek redress from the legislature rather than the courts. [22] Thus, any claim for black reparations must rely on the political will of the white majority in the United States. This reality makes the quest for reparations especially problematic for black Americans.
II. Calls for Black Reparations: Past and Present
There is a popular legend within the black community that following the end of African slavery in the United States, 137-139 years ago, [23] former slaves were promised 40 acres and a mule. The truth is far more complex, but clearly the Reconstruction Congress that enacted several pieces of civil rights legislation, including three constitutional amendments, never thought about compensating blacks for their slave labor, or for the labor of their enslaved ancestors. [24] Nevertheless, since the mid 1860s black Americans have dreamed and hoped for reparations.
In 1916, for example, four black Americans, H.N. Johnson, C.B. Williams, Rebecca Bowers and Minnie Thompson, unsuccessfully sued the United States government for the federal taxes collected on the sale of cotton produced by slave labor.[25] In 1969 James Forman, President of the Student Non-Violent Coordinating Committee (SNCC) issued a Black Manifesto which called on America's white dominated religious institutions to pay $500 million in damages to all black Americans.[26] In 1973 Boris Bittker, a Yale Law School Professor, published THE CASE FOR BLACK REPARATIONS, exploring potential black reparation claims and summarizing difficulties in securing redress from the courts or through the political process. Professor Bell writes: "Professor Bittker's exploratory surgery of black reparations . . . giv[es] little attention to the pressures, moral and political, that when applied by those whose faith in a cause exceeded their belief in the law, have spawned other legally acceptable reparations programs in this country and elsewhere." [27]
Like Bittker,
until recently, most prominent black scholars scoffed at the idea of
repara[28]tions for black Americans.
Over the years, the idea of black reparations did have a few supporters.
Each year since 1989 Representative John Conyers, a black American from
Michigan, introduces a bill to establish a commission to study whether
"any form of compensation to the descendants of African slaves
is warranted. [29] " These bills never make it
out of the House Judiciary Committee for debate on the floor of Congress.
Nevertheless, Representative Conyers' actions coupled with the actions
of others, revitalized public debates and discussions about black reparations.
In May 2001, The Philadelphia Inquirer, that city's main daily newspaper,
in two-full-page editorials called for the creation of a national reparations
commission. [30]
Others demand monetary reparations. In 1993, for example, ESSENCE MAGAZINE, a black-owned monthly directed at a black female audience, published an advertisement urging black taxpayers to take a "Black Reparations Tax Credit. [31] " More than 20,000 returns complied with some filers claiming a credit as high as $43,000. [32] The Internal Revenue Service denied the credit, assessing fines and penalties and prosecuting tax preparers who participated in this protest. [33]
Despite the failure of the Black Reparations Tax Credit protest, a few recent reparations efforts directed at states have had varying degrees of success. In March, 2001, the Oklahoma Commission to Study the (Tulsa Oklahoma) Race Riots of 1921 recommended that survivors and their descendants be paid reparations for the destruction of their homes and businesses and killing at least 40 people by white rioters. [34] The establishment of the commission, pushed by black state legislators, ended almost eighty years of pain and anguish for blacks in Tulsa who remained traumatized by the incident. Subsequently, the Oklahoma legislature refused to award reparations. Former residents of Rosewood, Florida were more successful. "In 1995, the Florida state legislature awarded $ 150,000 to each of nine survivors, as well as other monetary awards to 143 descendants, of [that] Black community . . . , burned down by a rioting white mob in 1923." [35]
This spring Harvard Law School professor, Charles Ogletree and Randall Robinson, founder and head of TransAfrica, along with a team of prominent black American litigators calling themselves the Reparations Coordinating Committee, announced their intention to sue the federal government and private corporations that profited from slavery. [36] Professor Olgetree believes that litigation is the appropriate venue to discuss the consequences of slavery because it "will show what slavery meant, how it was profitable and how the issue of white privilege is still with us." [37] The Reparations Coordinating Committee is just one of several organizations created to press for black reparations through the courts.
Adjoa Aiyetoro from the National Coalition of Blacks for Reparations in America, said that this organization is also planning a lawsuit against the federal government.[38] Successful law suits against government by the Reparations Coordinating Committee and others will be difficult, as Bittker points out, because of legal barriers like sovereign immunity, causation and statute of limitations. Mindful of these legal realities, some potential litigators view these lawsuits, especially suits against private corporations, as strategic devices designed to encourage these business entities to push the federal government to provide black reparations. [39]
Professor Ogletree characterizes as "uneasiness" white American's resistance to reparation demands analogizing it to the uneasiness Americans had about integration, the women's movement and abortion.[40] He is confident that, in time, calls for black reparations will gain mainstream viability.[41] Perhaps, he is being too optimistic. The likelihood of resistance to candid discussions about black reparations among and between black and white Americans is best illustrated by public reaction to recent requests for apologies, quasi-apologies by state governments, the president, religious organizations, and private corporations.
In June 1997 a dozen bi-partisan, white congress members sponsored a resolution calling for an apology for the enslavement of blacks. [42] Representative Tony Hall, who introduced the resolution, said that his purpose was not to "fix the lingering injustice resulting from slavery", but rather to begin the reconciliation process. [43] The resolution was similar to the apology sent by the President to Japanese-Americans interned during War World II. A crucial difference, however, was that the call for an apology for slavery was not preceded by findings of wrongdoing by a national commission.
The proposed apology created heated discussions both within and outside the black American community. Some saw an apology for slavery as meaningless, [44] "a dead end," [45] or divisive. Others argue that it is a beginning of reconciliation efforts.[46] Even President Clinton, who had just announced a national commission on race, did not endorse the effort. [47]
Almost a year later, President Clinton while visiting Uganda said: "Going back to the time before we were even a nation, European Americans received the fruits of the slave trade, and we were wrong in that." [48] Although not quite an apology, even this modest comment generated much criticism. [49] New York Times columnist, Frank Rich, although writing about the presidential commission, illustrates the degree of white racial antagonism to almost any discussion of race in American. He writes: "Candid conversation about race . . . is easier decreed than had in a country that has already repressed memory of the stark racial gap revealed by the polar black and white reactions to both O. J. verdicts." [50]
Despite resistance to any formal apology for slavery by the national government, in recent years several private entities have issued apologies. Apologies in July 2000 by The Hartford Courant, a Connecticut newspaper for running advertisements for slave in the 18th and 19th centuries; and by Aetna Inc., an insurance company, [51] "for profiting from slavery by issuing insurance policies on slaves in the 1850's" drew similar complaints. [52]
During the celebration of its 150 anniversary in 1995, the Southern Baptist Convention overwhelmingly passed a resolution to "'repent of racism of which we have been guilty' and to apologize to and ask forgiveness from 'all African Americans.'" [53] This resolution was significant because the Southern Baptist, "America's largest Protestant denomination, [was] . . . founded in large part in defense of slavery." [54] Rather than view the Southern Baptist's apology as a hopeful sign of racial reconciliation, a cynic might point to the increasing numbers of black congregations in the denomination, arguing that the apology was in the group's best interest. More than twenty years ago Derrick Bell, writing about the Supreme Court's decision in Brown v. Board of Education, [55] argued that meaningful change for black Americans only comes when our interests converge with the interest of whites. [56]
III. Issues In Reparations Discussions
The primary question raised by black reparations claims is whether reparations are warranted. A common response in support of reparations is that
slavery was so central to the economy in the early days of America that almost every business benefited [sic] from it. 'The entire economy of this country was based on slavery, North as well as South. . . . Government benefited [sic], too, often using slaves to build public works. Slaves helped build the United States Capitol -- and their owners received $5 a month for their labor. [57]
In their critically
acclaimed book, BLACK WEALTH/WHITE WEALTH, Melvin Oliver and Thomas
Shapiro offer a more persuasive justification. They document in great
detail the persistence of racial inequality in the United States by
analyzing the inequity between black and white private wealth (total
assets and debts as opposed to income alone). [58]
Oliver and Shapiro posit that the wealth disparities between black and
white Americans are directly related to how wealth accumulates in the
United States. Wealth accumulation is historical (intergenerational),
and black Americans were denied both "the fruits of their labor
and the ability to accumulate wealth" [59] Thus,
reparation is a defensible strategy, they argue, to deal with the significant
disparities in wealth between blacks and whites in the United States.
[60]
In some ways their argument sounds a bit like the tort concept that
allows recovery for loss of opportunity. Few states recognize damages
for this type of loss reasoning that damages are highly speculative.
Claims of injury based on slavery and the artificial suppression of
the ability to accumulate wealth are difficult to document. These allegations
presume first a uniform drive to accumulate wealth and a high likelihood
of success.
A second concern is that reparations, if awarded, will foreclose future discussions of race-based discrimination against black Americans. Like others, Oliver and Shapiro fear that reparations will be inadequate, and will be seen by many white Americans as "a payoff for silence." [61]This is a valid concern and one reason why some black Americans resist the reparations movement. Reparation awards must be meaningful rather than symbolic. Adequate reparation would require, as Oliver and Shapiro acknowledge, "new revenues and implies a redistribution of benefits." [62] For this reason some scholars propose that reparations be given to blacks as a group rather than to individual black Americans.
Along these lines, Professor Robert Westley recommends the establishment of a private trust for all black Americans that would be administered by trustees who are popularly elected by the trust's intended beneficiaries. [63] Likewise, Randall Robinson, president of TransAfrica, calls for the establishment of a Marshall Plan-like trust "to finance social programs to eliminate the disparities generated by the history of racial oppression." [64] His proposal looks a lot like the trust proposal advanced by Robert Westley. Robinson, however, would require government financial support for up to two generations whereas Westley's more modest proposal limits funding to ten years.
Both proposals presuppose there is a moral as opposed to legal basis for black reparations and require funding by the national legislature. Monetary reparations would have to come out of the general treasury which means all taxpayers, including black Americans, would pay. This is not especially problematic, according to Westley, because "the focus of reparations doctrine needs to be on the role of government," not individual wrongdoing or innocence. [65]
Nevertheless, any significant financial commitment will be resisted by many white Americans. Over the past two decades political conservatives have successfully linked in the minds of Americans, "[t]he negative intertwining of race with 'tax and spend,' [and] 'welfare state.'" [66] There is, however, at least one precedent for government giving significant reparation awards.
In 1971 Congress, responding to long-standing pressures to settle land claims by Alaskan indigenous (aboriginal) communities, enacted the Alaska Native Claims Settlement Act (ANCSA).[67] In exchange for the extinguishment of title to most land in Alaska, the ANCSA created a two tier corporate structure and shareholding between native villages organized as corporations and regional corporations. Over eleven years, the Alaska Native Fund, established under the ANCSA, received $462.5 million in general federal appropriations and $500 million from federal and state mineral reserves. [68]
"The goals of the ANCSA, as it was originally formulated, were assimilationist.. . . designed to turn Native tribes into the equivalent of white America's municipalities, with public land being used for profit making purposes." [69] This assimilationist goal, which was inconsistent with Alaskan native aboriginal culture, is probably one reason that implementation of the ANCSA has been a failure. [70] Although most black Americans desire, socio-economic assimilation, group based reparations are problematic.
Group based reparations presuppose the existence of an identifiable uni-purpose black community. As I have written else where, this community no longer exists in the United States.[71] The black community often invoked by black politicians and activists was created as a result of slavery and de jure segregation. With the end of legally mandated segregation and increased opportunities for many black Americans, this community lost its cohesiveness. Increasingly, black middle and upper class Americans have more in common with their white counterparts than with less affluent black Americans. Increasingly, class separate blacks from one another.
IV. Resistance To The Current Black Reparations Movement
I believe that increasing political polarization along racial lines within the United States may make it more difficult, in the short run, for Americans to get beyond the first issue whether reparations are due. Robert Westley, for example, writes that an overwhelming majority of white Americans believe that black and white children should attend the same school; and a majority believe in equal employment opportunities. [72] Yet these same Americans overwhelmingly oppose government initiated actions to remedy discrimination in education and employment. [73]
Despite the belief by most white Americans in equal employment opportunities and school integration, anti-black sentiment persists. [74] Thus, Oliver and Shapiro express legitimate concerns about the impact of black reparations. For example, they question whether political or economic reparations might not be the right choice at this moment in America's history because reparations "may inflame more racial antagonism than they extinguish." [75]
Oliver and Shapiro accurately state what I see as the main objections to reparations. First, opponents of black reparations argue that it is inappropriate to hold present-day whites accountable for slavery and past racism.[76] The obvious rebuttal to this argument is that all whites continue to benefit from blacks' labor during slavery and the artificial suppression of black American's ability to accumulate wealth during and following slavery.
second argument raised by opponents of black reparations is the difficulty of determining who among blacks should receive reparations. Blacks immigrants from Caribbean started entering the United States in significant numbers at the beginning of the 20th century. With more relaxed immigration requirements, their numbers have increased over the past two decades. In addition, migration from African countries that started in the 1960s continues, further swelled the number of black Americans. Finally, some question whether mixed-raced individuals should receive reparations, especially individuals who are not classified as black, who phenotypically do not appear black, or who do not identify as black.
Professor Westley dismisses these objections to reparations saying that
"the complex question of the identification of victims and perpetrators
often serve as a proxy for concerns about redistributive fairness."
[77] He concedes that group-based reparations will
undoubtedly be both over- and under-inclusive, but are most appropriate
for black Americans. [78] The over- and under-inclusiveness
criticism, usually is based on the argument that more affluent black
Americans are less needy and thus undeserving of reparations. This argument,
however, overlooks "the central claim of Black reparations . .
. redress for exploitation through government sanctioned white supremacy.
The claim [, according to Westley,] is one of entitlement, not need."
[79] Race, not class is the basis for black reparations
claim because the injury is race-based.
To determine who should be included Professor Westley suggests consultations
with "established" black organizations, and maybe even a plebiscite.
[80] A plebiscite (or any other grassroots movement), "would
be effective only if the work of educating the masses were carried out
with meticulous care." [81] He opposes individual
reparations, a feature in both Japanese Americans and Jewish Holocaust
survivors reparations schemes. [82]
Framing the question as a group-based right is contrary to the traditional
treatment of black Americans by the courts. Blacks in the United States
are treated as a group "in ordinary social and political discourse,"
but not for remedial purposes.[83] Group-based reparations
demand the creation of institutions that should be directed at bringing
about economic parity -- the most obvious injury.[84] Professor Westley's group-based reparations plan will be opposed by
many black Americans. As mentioned previously increasingly, class divides
black America.
Another possible objection white Americans might raise is that affirmative
action compensated black Americans for the injuries of slavery and de
jure segregation. Westley counters that affirmative action is inadequate
compensation because both blacks and whites do not believe it is compensatory.[85] Affirmative action measures initially were couched in terms of fairness
and merit. [86] Further, in most cases, affirmative
action "is discretionary, situational and sporadic, not uniform
and systematic."[87] It has never been seen as
a comprehensive remedy for race-based discrimination aimed at black
Americans. More importantly, affirmative action did not require monetary
compensation to blacks as a group. [88]
Still another objection is that there arguably is a broader claim for
reparations. Professor Westley, for example, does not address whether
reparations are appropriate for other groups in the United States that
suffered comparable harms, notably indigenous people and the ancestors
of many Chinese Americans.[90] Even within the black
reparations movement there are calls for reparations to African countries
colonized by Europeans and to blacks in other parts of the African diaspora
whose ancestors were transferred involuntarily from their homes on the
African continent to various places in the Americas. [91] Some countries and organizations at the United Nations World Conference
on Racism and Discrimination being held at the end of this month in
Durban, South Africa, will be calling for reparations for colonialism
and slavery, [92] two events that severely impacted
Africa and blacks in the Americas.
Arguably, broaden reparation claims are also problematic. They present
the possibility of diminishing claims for black reparations. This is
one lesson learned from the extension of affirmative action to women
and other non-white groups, many of whom benefited from affirmative
action much more than black Americans.
V. Conclusion
Most arguments in favor of black reparations presuppose that reparations
are due. Initially, I came to the question of black reparations with
much the same ambivalence as many black Americans. This ambivalence
remains. I end convinced only that calls for an apology for slavery
are premature. Neither blacks nor whites (or other Americans) currently
know enough about the issues to reach an informed decision on the need
for an apology much less reparations.
In 1986 federal district Judge Vorhess in ruling on a motion to reconsider
in Hirabayashi v. United States said: "It is now considered by
almost everyone that the internment of Japanese-Americans during World
War II was simply a tragic mistake for which American society as a whole
must accept responsibility." [93] There has been
no similar acknowledgment about slavery and de jure segregation directed
at black Americans. Therefore, an appropriate first step should be the
creation of a commission like Representative Conyers has been requesting
for the past dozen years.
Like me, Randall Robinson is not convinced, that white Americans had
the will to acknowledge their moral debt to black Americans. [94] For the moment, at least, what is important, according to Robinson,
is not whether black Americans prevail in their quest for reparations,
but "whether we will fight for reparations, because we have decided
for ourselves that they are our due." [95] Reparation
discussions may not result in the realization, recapture or revitalization
of black group identity. American individualism may be too strong, even
among black Americans. This does not mean that black Americans individually
should not push for the creation of a commission on reparations. The
existence of a commission creates a space for legitimate public discussions
among people raced as black about issues and concerns stemming from
slaver, de jure segregation and continuing racial discrimination. These
discussions may free black Americans from continuing reliance on outdated
and ineffective legal and political theories in our pursuit of social
justice. In addition, recognition of increasing diversity among black
Americans may encourage some blacks to form coalitions with non-blacks
based on actual interests and concerns rather than socially constructed
notions of race and racial unity.
Finally, it is a bit embarrassing when in a world forum to discuss reparations
for black Americans who live in relative affluence compared with most
people in the world. Yet, we (black Americans) still experience great
emotional pain from everyday racism and material deprivation when compare
to white Americans. As editorial board member Brent Staples wrote in
the New York Times:
For 250 years African Americans were deprived of freedom, basic education and the right to accumulate wealth, which they could have passed on to their descendants. This history would have left a wound in any case. But the wound is open and running because the country refused to atone materially when it had the chance. [96]
Natsu
Taylor Saito, Model Minority, Yellow Peril: Functions of "Foreignness"
in the Construction of Asian American Legal Identity, 4 ASIAN L.
J. 71, 74 (1997). (citing PETER IRONS, JUSTICE DELAYED: THE RECORD OF
THE JAPANESE AMERICAN INTERNMENT CASES 120 (1975)). The Commission,
however, did not find that the government's action was unconstitutional.
IRONS, supra note 1, at 46. [include language
of the apology]
Natsu Taylor Saito, Justice Held Hostage: U.S. Disregard
for International Law in the World War II Internment of Japanese Peruvians
A Case Study, 40 B.C. L. REV. 275, 331 (1998).
PETER IRONS, JUSTICE AT WAR: THE STORY OF THE JAPANESE
AMERICAN INTERNMENT CASES, vii-ix (1983).
See Korematsu v. United States, 323 U.S. 214 (1944).
Following publication of Iron's book lower federal courts questioned
the government's authority. See, Yasui v. United States, 772 F.2d 1496
(9th Cir. 1985); Hirabayashi v. United States, 627 F. Supp. 1445 (W.D.
Wash. 1986), aff'd in part and rev'd in part, 828 F. 2d 591 (9th Cir.
1987); Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984).
133 CONG. REC. H 7555 (daily ed. Sept. 17, 1987) (statement
of Rep. Fish). President Roosevelt by executive order mandated the evacuation
and removal of Japanese nationals and Japanese Americans. EXEC. ORDER
NO. 9066, 3 C.F.R. 1092 (1938-1943).
Saito, supra note 3 at, 318 (citing Nanette Dembitz,
Racial Discrimination and the Military Judgment: The Supreme Court's
Korematsu and Endo Decisions, 45 COLUM. L. REV. 175, 176 (1945)).
In addition to the personal indignities that accompanied internment,
Japanese Americans lost, among other things, personal and real property,
business and income, educational opportunities, and chattel (farm animals
and pets). Robert Westley, Many Billions Gone: Is It Time to Reconsider
the Case for Black Reparations?, 40 B.C. L. REV. 429, 449 (1998).
Westley, supra note 7, at 449. (Citing Barbara
L. Tang, Comment, The Japanese Internment and Reparations: Creating
a Judicial or Statutory Cause of Action Against the Federal Government
for Constitutional Violations, 21 LOY. L.A. L.L REV. 979, 982-87
(1988)).
See, e.g., Sarah L. Brew, Making Amends for History:
Legislative Reparations for Japanese Americans and Other Minority Groups,
8 LAW & INEQ. J. 179 (1989); Reparations Sought for Black Americans,
L. A. TIMES, Dec. 10, 1990, at 1 (a grass roots organization, the National
Coalition of Blacks for Reparations, calls for $4 trillion in reparations);
Salim Muwakkiol, Time to Redress Slavery's Damage, CHI. SUN-TIMES,
Feb. 27, 1994 at 45 (grassroots movement among black Americans for reparations).
Tamar Lewin, Calls for Slavery Restitution Getting
Louder, N.Y. TIMES, June 4, 2001 at A15, col. 1.
Westley, supra note 7, at 432.
Id., at 189.
Saito, supra note 3, at 320.
Id., at 320-21.
Id., at 321.
Id.
Id.
Id., at 320 n.233 (citing IRONS, JUSTICE DELAYED, supra
note 1, at 27, 46).
Hohri v. United States, 482 U.S. 64 (1987).
Saito, supra note 3, at 321.
Cato v. United States, 70 F.3d 1103 (9th Cir. 1995).
Id., at 1110-11.
Not all enslaved persons of African ancestry were emancipated
at the same time. President Lincoln's 1863 proclamation freeing the
slaves only applied to persons enslaved in those states who were at
war with the Union. The remaining slaves were not legal emancipated
until 1865. [need cites]
For a description of these measures see Westley, supra
note 7, at _____; C. F. OUBRE, FORTY ACRES AND A MULE 1, 18-19 (1978).
New York Times editor Brent Staples writes of this myth:
"Forty acres and a mule," of course, is a rallying cry from 1865. It originated during Sherman's March to the Sea. Overwhelmed by black families that abandoned the plantations to follow him, Sherman issued Special Field Order 15, declaring the Georgia Sea Islands and a strip of South Carolina rice country as black settlements. Each family was to get 40 acres and the loan of an Army mule to work it. Other generals and Federal officials followed Sherman's lead, realizing that land was the only hedge against starvation and renewed bondage.The confiscations were in accordance with Federal law. If sustained and accelerated, the land grants would have created black capital and independence almost immediately and precluded much of the corrosive poverty that still grips the black South. President Andrew Johnson was nearly impeached, in part for obstructing Congress on Reconstruction. Meanwhile, he canceled Special Field Order 15, returning land to white owners and condemning blacks to de facto slavery. Brent Staples, Editorial Notebook: Forty Acres and a Mule, N.Y. TIMES, July 27, 1997 at A16, col. 1.
Even before the Civil War, some black Americans advanced claims for reparations. Professor Derrick Bell notes that in 1829 David Walker, a black writer/activists, complained about the lack of compensation for slave labor. DERRICK BELL, RACE, RACISM AND AMERICAN LAW, 54 n.11(3rd ed. 1992) (citing Ewart Guinier, Book Review, 82 YALE. L. J. 1719, 1721 (1973) reviewing BORIS BITTKER, THE CASE FOR BLACK REPARATIONS (1973)).In many places, the eviction process was long and bloody. As the ex slave Sarah Debro said of the period: "Slavery was a bad thing, and freedom, of the kind we got with nothing to live on, was bad. Two snakes full of poison. One lying with his head pointing north, the other with his head pointing south. . . . Both bit the nigger and they was both bad." My father and uncles grew up steeped in accountings like this one. Brent Staples, Editorial Notebook: Forty Acres and a Mule, N.Y. TIMES, July 27, 1997 at A16, col. 1
Alfred Dennis Mathewson, A National Debate on Reparations, ALBUQUERQUE TRIBUNE, June 19, 2001 at __. According to Mathewson, their claim was dismissed on sovereign immunity grounds. Id.
BELL, supra note 24, at 481. This money would be used "to establish a Southern Land Banks. . . set up publishing firms, television networks and other audiovisual agencies . . . start a skills center for research on problems of blacks, training centers to teach marketable skills, and a 'National Black Labor Strike and Defense Fund." Id. Forman's protest was criticized by religious leaders. In fact, Professor Bell writes that immediately following Forman's action some churches "gave several million dollars to black church programs, generally specifying that the money not go to Forman or the group he represented." Id., at 482. (Emphasis added)
Id, at 55.
See, e.g., Imari A. Obadele, Reparations Now! A Suggestion Toward the Framework of a Reparations Demand and a Set of Legal Underpinnings, 5 N.Y.L. SCH. J. HUM. RTS. 369 (1988); ; Tyron J. Sheppard & Richard Nevins, Constitutional Equality-Reparations at Last, 22 U. WEST L.A. L. REV. 105 (1991); Vincene Verdum, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597 (1993); Rhonda V. Magee, NOTE, THE MASTER'S TOOLS, FROM THE BOTTOM UP: RESPONSES TO AFRICAN-AMERICAN REPARATIONS THEORY IN MAINSTREAM AND OUTSIDER REMEDIES DISCOURSE, 79 VA. L. REV. 863 (1993); RICHARD F. AMERICA, PAYING THE SOCIAL DEBT: WHAT WHITE AMERICA OWES BLACK AMERICA (1993); Calvin J. Allen, The Continuing Quest of African Americans to Obtain Reparations for Slavery, 9 NAT'L B. A. MAG. 33 (May/June 1995).
H.R. 3745 reads in part:
A bill to acknowledge the fundamental injustice, cruelty, brutality and inhumanity of slavery in the United States and the Thirteen American Colonies between 1619 and 1685 and to establish a commission to examine the institution of slavery, subsequent de jure and de facto racial and economic discrimination against African Americans, and the impact of these forces on living African Americans, to make recommendations to the Congress on appropriate remedies, and for other purposes . . . . H.R. 3745, 101st Cong. (1989).
See also, MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL EQUALITY 188 (1997). "In 1991, Conyers enlisted 19 other Representatives as co sponsors of the bill, H.R. 1684. 137 CONG. REC. H2134 (1991). See Scott Shepard, Slavery Apology Plan Raises Reparations Issue, THE ATLANTA CONST., June 12, 1997, at A6 (stating that Conyers has reintroduced his commission legislation in every session of Congress since 1989)" Chris K. Iijima, Reparations and the "Model Minority" Ideology of Acquiescence: The Necessity to Refuse the Return to Original Humiliation, 40 B.C. L. REV 385, ___ n__. (1998). In 1991 Massachusetts State Senator William Owens introduced a bill in the Massachusetts State Legislature requesting reparations for slavery, the slave trade and "invidious discrimination against people of African descent born or residing in the United States." BELL, RACE, RACISM AND AMERICAN LAW, supra note 24, at 51 n. 4.
Mathewson, supra note 25. [cite to the Inquirer directly]
Id.
Id.
Id.
Brent Staples, Unearthing A Riot, N.Y. TIMES, Dec. 19, 1999, at Sec. 6, p. 64, col. 1.
Lori S. Robinson, Righting a Wrong Among Black Americans, the Debate is Escalat (ing Over Whether an Apology for Slavery is Enough, SEATTLE POST INTELLIGENCER, June 29, 1997, at E1.
Id.
Lewin, supra note 10.
Id.
Id. (quoting Deadria Farmer-Paellmann, the lawyer who found the incriminating evidence of Aetna's slave policies).
Barbara Crossette, Rights Leaders Urge Powell to Attend U.N. Racism Conference, N.Y. Times, July 11, 2001 at A9, col. 1
Id.
Id.
Speaker Scoffs at Proposal for Apology on Slavery, N.Y. Times, June 14, 1997 at Sec. 1, p. 10, col. 3. "I hope this apology will be a start of new healing between the races." Id.
Frank Rich, Better Never Than Late, N.Y. TIMES, June 22, 1997 at Sec. 4 p. 15, col. 1. (Citing Rev. Jesse Jackson). Historian Eric Foner is quoted as saying that substance rather than symbolism was what newly emancipated black slaves wanted. Id. Symbolic of the disagreement among black Americans are the comments of two leaders of black organizations. "Gerald Reynolds, president of the Center for New Black Leadership, a conservative civil rights organization, said: 'An apology is nothing more than an empty gesture. I don't think it reduces crime or reduces teen pregnancy or improves the public school system.'" Steven A. Holmes, Idea of Apologizing for Slavery Loses Steam, at Least for Now, N.Y. TIMES, Aug. 6, 1997 at A15, Col. 1. National Urban League President, Hugh Price, a black man, said "an apology for slavery might be of useful symbolic value, . . . [b]ut it does not address the bottom line issues of inequality, which are rooted in the gaps in education and economic opportunity."Id.
Rich, supra note 44. (citing then Speaker of the House, Newt Gingrich). Specifically, Gingrich called the proposed resolution "emotional symbolism." Speaker Scoffs at Proposal for Apology on Slavery, N.Y. TIMES, June 14, 1997 at Sec. 1, p. 10, col. 3.
"an apology could open floodgates for dealing with issues like reparations, but that is necessary if the country is to move toward closure." Letter to the Editor from Dexter Wilburg, Apology for Slavery Wouldn't Be Meaningless N.Y. TIMES, July 3, 1997, at A22, Col. 5
Holmes, supra note 44. White House Press Secretary, Michael McCurry, was quoted as saying: "The President has really, in a way, put that issue aside and said that's not going to be the focus of his race initiative; nor is it the place he believes we should really start the kind of discussion he is looking for, one that's aimed at bringing Americans together." Id. President William Clinton's creation of a commission on race in June 1997 generated similar debate. [need cites] The commission's final report was disappointing. A New York Times editorial announced a year later that any conversations on race "have long since drifted. Hampered by a White House that was well intended but wary of ugly confrontations, the full seven member panel never met as a body in the Deep South or in the hard black ghettos of the urban North. The . . . people who came to talk in such places as Denver, Phoenix and San Jose tended to be civic activists. The bulk of Americans those complacent about racism or indifferent to it stayed home, as did the real racists." Editorial, Race, Memory and Justice, N.Y. TIMES, June 14, 1998 at Sec. 4, p 14, col. 1 .
Katharine Q. Seelye, Clinton Comment on Slavery Draws a Republican's Ire, N.Y. TIMES, Mar. 28, 1998, at A9, Col. 1.
Id. (Referring to comments by Republic Party Majority Whip, Representative Tom DeLay of Texas); R. W. Apple Jr. , Clinton's Contrition, N.Y. TIMES, April 1, 1998 at A12, Col. 5. (Noting that most of the President's black American advisers did not support the apology).
Rich, supra note 44.
Other insurance companies benefitted as well. For example, 339 of the first 1,000 insurance policies issued by the New York Life Insurance Company to cover the lives of black slaves in Maryland and Virginia. Crossette, supra note 40.
Letter to the Editor by Alvin Darby, Apologies for Slavery, N. Y.TIMES, July 13, 2000 at A 28, col. 4. Calling to apology meaningless to the contemporary condition of black Americans, the writer continues: "And what is the point of an apology if certain people still have ill will and feelings toward black people in their hearts?" Id.
Gustav Niebuhr, Baptist Group Votes to Repent Stand on Slaves, N.Y. TIMES, June 21, 1995 at A2, col. 5.
Id. The story continues:
The resolution was also striking because it addressed the very schism over slavery that created the denomination in the first place. In a move that foreshadowed the secession by Southern states on the eve of the Civil War, the denomination was formed in 1845 by Southern churchmen who broke from northern Baptists after a national Baptist agency refused to appoint a slaveholder as a missionary. . . . The resolution stated that 'many of our Southern Baptist forebears defended the "right" to own slaves' and that in this century, many in the denomination either failed to support or actively opposed efforts by black Americans to secure their civil rights. Id.
347 U.S. 483 (1954).
Derrick A. Bell, Jr., Brown v. Board of Education and the Interest Convergence Dilemma, 93 HARV. L. REV. 518 (1980). Mary L. Dudziak has documented Professor Bell's suspicions. See, Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61 (1988); Mary L. Dudziak, The Little Rock Crisis and Foreign Affairs: Race Resistance, and the image of American Democracy, 70 S. CAL. L. REV. 1641 (1997).
Crossette,supra note 40. (Quoting Columbia University historian Eric Foner).
OLIVER & SHAPIRO, supra note 29.
Id at 188. Similarly, Robert Westley characterized black reparations claims as: "(1) the value of the uncompensated labor of generations of slaves and (2) the century-long violation of Black civil rights through state enforced segregation." Westley, supra note 7, at 466.
OLIVER & SHAPIRO, supra note 29, at 178.
Id., at __. They continue: "the terms of which go something like this: 'Okay. You have been wronged. My family didn't do it, but some amends are in order. Let's pay it. But in return, we will hear no more about racial inequality and racism. Everything is now color-blind and fair." Id.
Id., at 189.
Westley, supra note 7, at 470. Trust funds would be spent on education and employment projects that empower the beneficiaries and would be determined on the basis of need. Any beneficiary could submit proposals to the trustees. Id.
Mathewson, supra note 25 (referring TO RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES BLACK AMERICANS (2000).
Id., at 472. Westley notes that normally taxpayers have virtually no say over how tax monies are expended. Id. [also cite to the taxpayer standing cases]
OLIVER & SHAPIRO, supra note 29, at 190.
Alaskan Native Claims Settlement Act, 43 U.S.C. 1601 1629a (1994).
Martha Hirschfield, Note, The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form, 101 YALE L. J. 1331, 1336 (1992).
Ann Tweedy, The Liberal Forces Driving the Supreme Court's Divestment and Debasement of Tribal Sovereignty, 18 BUFF. PUB. INTEREST L.J. 147, ___ (1999/2000).
For discussion of this point see, Tweedy, supra note 68; Hirschfield, supra note 67.
Taunya Lovell Banks, What is A Community? Group Rights and the Constitution: The Special Case of African Americans 1 MARGINS 51 (2001).
Westley, supra note 7, at 446. According to Westley about 90% of white Americans believe that black and white children should attend the same school. An even higher number, 95% believe in equal employment opportunities. Id.
Id.
Oliver and Shapiro write that "the persistence of antiblack racial attitudes in America" make prospects for reparations minimal. OLIVER & SHAPIRO, supra note 29, at 189.
OLIVER & SHAPIRO, supra note 29, at 189.
Id., at 18.
Westley, supra note 7, at 467.
Id. He draws a distinction between group and individual reparations saying that any discussion of the form of black reparations should take into account the degree of over- or under-inclusive should be tolerated. Id., at 467-68.
Id., at 471.
Id., at 469. There is some precedent for this kind of plebiscite (cite to the plebiscite among native Hawaiian over who should be considered a member of their group)
Id., at 469.
Id., at 468.
Id., at 469. See also, Banks, supra note 71, at ___.
Westley catalogues the specific ills that contribute to economic inequality: under- and un-employment, undercapitalization of black businesses who are heavily dependent on federal largess; under- and un-educated blacks; inadequate or no access to health care; and negative stereotypical images of blacks in the media. Westley, supra note 7, at 469. Westley adds that blacks also fail to fully exercise the franchise." Id. I contend based on studies done following claims of voting discrimination in the 2000 presidential election that blacks continue to be denied full access to the franchise.
Id., at 470.
Id.
Id., at 469-70.
Id., at 470.
See, generally, Rennard Strickland, Genocide-At-Law: An Historic and Contemporary View of the Native American Experience, 34 KANSAS L. REV. 713 (1986).
Chinese migrants were denied the right to be naturalized, segregated in public schools, prohibited by some states from marrying outside their group or owning property, and had their employment and business opportunities artificially restricted.
In April, 1993 the Organization of African Unity (OAU) convened the first pan-African conference on reparations. The delegates at this meeting were unanimous in calling "upon the international community to recognize that there is a unique and unprecedented moral debt owed to the African peoples which has yet to be paid." Robinson, supra note 64, at 219-220. The conference declared that the enslavement of Africans, colonialism and neocolonialism have damaged African peoples as well as the economies of "Africa and the black world from Guinea to Guyana, from Somalia to Surinam." Id., at 219.
Crossette, supra note 40. The United States must be willing to discuss the harms and breaches of human rights it allegedly committed against black Americans. Yet, the U.S. consistently refuses to do so. For example, it is possible that the United States work decline to participate in the forthcoming UN sponsored conference on racism in Durban, South Africa at the end of August. The U.S. objects to, among other things, any discussion of whether reparations for slavery are due. The U.S. also refused to attend two earlier UN sponsored conferences on racism, in 1978 and 1983. The unwillingness to even discuss the issue of reparations on the international level will only stimulate demands by many black Americans (and hopefully non-black Americans) within the U.S. for debates on black reparations.
Neil Lewis, U.S. Pushes To Refocus Racism Conference, N.Y. TIMES, Aug. 1, 2001, at A8, col. 4.
Saito,
supra note 1, at 74 (quoting IRONS, JUSTICE DELAYED, supra note 1, at
384).
Randall Robinson is more realistic about the reparation
movement's likelihood of immediate success. He advocates direct political
action like what he characterizes as a "Year of Black Presence."
Robinson wants black churches and other institutions to bring one thousand
black Americans who support reparations to the halls of Congress for
each of the approximately 130 days Congress is in session. He writes:
"The Congress, for one year, would never be relieved of our presence."
ROBINSON, supra note 64, at 247.
Id., at 206.
Brent Staples, Editorial Notebook: Forty Acres and
a Mule, N.Y. TIMES, July 27, 1997 at A16, col. 1.
