Thursday, April 19, 2018

Slavery to Reparations

White America and Reparations

Art Alcausin Hall

excerpted from: Art Alcausin Hall, There Is a Lot to Be Repaired Before We Get to Reparations: a Critique of the Underlying Issues of Race That Impact the Fate of African American Reparations, 2 Scholar: St. Mary's Law Review on Minority Issues 1, 22-32 (2000) (295 Footnotes Omitted)

"You don't simply say 'I'm sorry' to a man you've robbed. . . . You return what you stole or your apology takes on a hollow ring."

History cannot be undone; anything we do now must inevitably be an expression of regret and an affirmation of our better values as a nation, not an accounting which balances or erases. . . . That is now beyond anyone's power.

The politics of race with respect to African American reparations might begin with an analysis of one root of the continuing problem of race in America - that found within the White American community. Since the generation of racial tension by historic White America, this country has continued to show "a particular reluctance to absorb people of African descent." While progress has and continues to be made, this progress has been slow, cautious, and incremental, resulting in fragmented and often incomplete gains. The reluctance on the part of White America has again become obvious in the movement for African American reparations.

A. Lack of Responsible White Congressional Leadership and the Politics of Power

While the courts have suggested African American reparations would be better achieved via congressional legislation, the white congressional leadership has been reluctant to even discuss the possibility of reparations for the past wrongs of America, indeed White America.

In response to the reluctance of White America to absorb Black America through reparations, one commentator questions "Where is the responsible white leadership? . . . When I think about the Southern Baptist Convention's apology two years ago for its defense of slavery in the past, I am hopeful that something more positive is happening out in the rest of America than here in official Washington." Once African American reparations legislation moves from committees to the congressional floor for debate, there can be more opportunity for review, discussion, and consideration of the issue. If nothing else, the existence of continuing race problems and their underlying sources and contribution to the perpetuation of race problems today can be acknowledged and addressed.

And, while leadership is one of the cruxes of the problem, the issue of reluctance within the general white community is felt even deeper - grounded in fear and ignorance. The existence, or even the discussion, of the politics of inclusion, and the reality of changing demographics threatens the status quo power structure and its components. Power is a tremendous tool, but the fear of losing that power is even more potent. With White America having founded the power structures in the United States and presently, for the most part, directing and controlling them, there exists a fear of increased competition and the possibility of sharing, or even losing that power and control to others.

African American reparations requires an admission of wrongdoing and an attendant guilt, which are in-and-of-themselves difficult for White America to accept. In addition, this admission, particularly because of the expansiveness and depth of the past and persistent wrongdoing, even when compared to the internment of Japanese Americans during World War II, threatens the very structure that the wrongdoing created and maintains. In determining the willingness to discuss and then accept the alternative of reparations, the repairing group must come to terms with the leveling effect of reparations, thereby creating a tension between the morality of repairing those harmed and the possibility of sharing power and control with those it has and continues to oppress and disqualify.

As such, this is a difficult position for White America, and the record of the white congressional leadership reveals little effort or even interest in repairing or discussing reparations - the justifications, the continuing problems, the "pros" and "cons" of reparations, and the potential alternatives. When legislation for a simple one-sentence official apology to African Americans was introduced in Congress in 1997, by Tony Hall, an Ohio Democratic Congressman, polls showed that 61% of those surveyed did not favor such legislation, although the African Americans surveyed favored the legislation two-to-one. "Whites in America are already visualizing themselves as a racial minority. They fear their status is eroding and that people of color are usurping their traditional positions of power and privilege."

These fears are evident in court decisions and legislative action. Fearful of the approaching status of white Americans as a minority, the Supreme Court has worked to include White Americans as potential victims worthy of protection of the same laws originally designed to protect African Americans and other racial "minorities." One authority stated, "This bait-and-switch maneuver - using a multiminority context to assert the rights of whites as if they were no different from any other minority group - has become a signature of recent Supreme Court cases."

For example, although the Court in United Jewish Organizations v. Carey implied that white subgroups, such as the Hasidic Jewish plaintiffs, might not be regarded as racial "minorities," the Court seemingly reversed its position sixteen years later in Shaw v. Reno. The Supreme Court in Shaw, a white vote dilution case, included whites as potential victims of racial discrimination when it argued for the elimination of all overt racial classifications as part of the effort to develop and maintain a multiracial, colorblind democracy. The notion that whites should be included as potential victims to be protected was recently supported by the Court's decision in Adarand, as white plaintiffs successfully challenged a federal program aimed at promoting subcontracting with small businesses controlledby "minority" or other disadvantaged individuals.

In response to this reaction by the Supreme Court, one author declared,

[T]he Court's current equal protection doctrine exploits the increasingly multiracial character of American society to the detriment of minority groups. . . . [T]he Court uses the image of a thoroughly multiracial America to recast whites as just another group competing with many others. By transforming whites into a victim group with the same moral and legal claims as any other minority group, the Court gives intuitive plausibility to its attack on racial set-asides, majority-minority voting districts, and affirmative action programs that burden white economic interests. Put bluntly, the nation's new awareness of minority conflict has translated, not into tools to improve minority participation, but into stronger protections for white entitlements.

The manipulation of rules to maintain an unjust or ill-acquired status quo is unjust. While resentment in the repairing group may lead to further maneuverings and division between the groups rather than cohesion, this is no defense to a morally just solution, and the concerns of the prospectively repaired group must weigh in significantly to the resolution equation. Without an admission of guilt and at minimum an official apology, there can be little meaningful accomplishment of reduced racial tensions that persist.

B. Counterattacks of "Reverse Discrimination"

Instead of working to repair past wrongs and absorb African Americans, many have turned to degenerative terminology and efforts to weaken the strength and forward progress of African Americans. The tables are often turned to blame African Americans for their progress by asserting claims of being unqualified, and requests for reparations are termed reverse discrimination and their proponents racists. These counterattacks seemingly aim to maintain the status quo discrimination.

Some have called the reaction of White America typical in the phenomenon called "the angry white male." Cornel West argues,

In white America, cultural conservatism takes the form of a chronic racism, sexism, and homophobia. . . . Like all conservatisms rooted in a quest for order,. . . America fans and fuels the channeling of rage toward the most vulnerable and degraded members of the community. For White America, this means primarily scapegoating black people. . . .

Derrick Bell writes,

Lulled by comforting racial stereotypes, fearful that blacks will unfairly get ahead of them, all too many whites respond to even the most dire reports of race-based disadvantage with either a sympathetic headshake or victim- blaming rationalizations. Both responses lead easily to the conclusion that contemporary complaints of racial discrimination are simply excuses put forward by people who are unable or unwilling to compete on an equal basis in a competitive society. . . .

On the one hand, contemporary color barriers are certainly less visible as a result of our successful effort to strip the law's endorsement from the hated Jim Crow signs . . . . Indeed, the very absence of visible signs of discrimination creates an atmosphere of racial neutrality and encourages whites to believe that racism is a thing of the past. On the other hand, the general use of so-called neutral standards to continue exclusionary practices reduces the effectiveness of traditional civil rights laws, while rendering discriminatory actions more oppressive than ever. . . .

Modern discrimination is, moreover, not practiced indiscriminately. Whites, ready and willing to applaud, even idolize black athletes and entertainers, refuse to hire, or balk at working with, blacks. Whites who number individual blacks among their closest friends approve, or do not oppose, practices that bar selling or renting homes or apartments in their neighborhoods to blacks they don't know.

Both West and Bell suggest that the counterattacks and resulting hypocrisy that emerge from the tension between reparations and its leveling effect do little to solve the racial problems that continue in this country. Absorption of African Americans must be complete and unequivocal, and an apology and some form of reparations are good starting points for today's efforts.

C. Difficulty Connecting Past to Present

Part of White America's reluctance to absorb African Americans and grant reparations stems from not merely its unwillingness to acknowledge past wrongdoing but its unwillingness to associate at least some of the present racial ills to its past injustice. To begin, some ignore the fact of present discrimination today. These naysayers might argue that the laws have changed, sufficiently eliminating any official discrimination. The unofficial, subtle discrimination that exists is minimal and insignificant at best, attributable to personal preference and impossible to discharge.

Similarly, White America has refused to acknowledge the role of "whiteness" in benefiting some, or "blackness" in hampering others. White Americans fail to acknowledge the advantage they have gained in being white. Randall Robinson, the author of The Debt: What America Owes to Blacks, argues, "Denial not only causes those cocooned to see no evil through the opaque walls of their shells but, oftener than not, obliges the self-deluded to paint pleasing murals of faux reality upon the walls."

What has resulted is a neo-conservatism, in which White America today attempts to distance itself from both the "sins of slavery" and of its forefathers, in an effort to deny responsibility for the past and present problems associated with race. Opponents of African American reparations contend that slavery and past injustices by White Americans were not conducted by individuals living today, but rather by individuals long dead. Henry Hyde, Republican congressman from Illinois and Chair of the House Judiciary Committee, several years ago, stated,

The notion of collective guilt for what people did [200-plus] years ago, that this generation should pay a debt for that generation, is an idea whose time has gone. I never owned a slave. I never oppressed anybody. I don't know that I should have to pay for someone who did [own slaves] generations before I was born.

However, this argument, proponents of African American reparations assert, does not comport with other comparative issues, including the national debt, for which all Americans must continue to pay despite its partial creation by other generations. In addition, these arguments of the injustice of shifting generational responsibility were ignored when reparations for Japanese Americans were paid by all U.S. citizens through taxes. In 1988, one-third of the tax-paying population, who contributed to reparations that were given to interned Japanese Americans, were born after World War II. And, those taxed in 1988 helped pay for Japanese American reparations whether or not they supported the government's mandated internment.

Opponents also argue that African Americans today were never slaves and did not directly experience the injustices of slavery and its effects and thus are not entitled to any form of reparations. However, the effects of slavery are still prevalent and other more recent bases of reparations have been highlighted by African American reparations advocates.

D. Fear of High Costs

The reluctance to absorb African Americans, evident in White America's lack of acknowledgement of the present realities as an extension of past and perpetuated wrongdoing, becomes more adamant when the extent of monetary compensation is considered. Probably an overriding factor in the development of reparations is the potential cost of the reparations bill to taxpayers. While reparations to Native Americans and Japanese Americans have been achieved, reparations to African Americans could possibly amount to trillions of dollars.

There are 22 million African Americans in the U.S. When one considers today's market value of 40 acres and a mule, the total projected bill of reparations is quite high. While figures on the amount of reparations differ, Dorothy Benton Lewis, the leader of Black Reparations Now, says the U.S. government owes descendants of black slaves several trillion dollars.

Nonetheless, no amount can assuage the fact and extent of the injustice to African Americans. The fact that the bill is so high is evidence of the severity of the ill and a reminder of the urgency of the need to repair. And, whatever reparations or alternatives are considered, more and complete efforts need to address present persisting racial ills and the anger and frustration that have resulted from the extensive delay.

E. Lack of Change

The lack of leadership, fear, and ignorance in this new wave of neo- conservatism lead many to argue that no basic level of change has emerged from the days of slavery to the present. Some may argue that the United States is impossibly struggling against the permanency of racism. Because of the unwillingness of many in positions of power to share their position in spite of the wrongdoing that was invoked to achieve and maintain that position, past or present, Derrick Bell argues that racism is permanent and will never subside in this country: "[R]acism in America is not a curable aberration - as we all believed it was at some earlier point. Rather, it is a key component in this country's stability. . . . [R] acism is permanent."

More and more meaningful steps must be taken by White America to resolve the issue of race in America. These steps will be difficult, but recognition and resolution of the underlying problems could make the United States a morally and economically healthier land. Descendents of those previously wronged become victims themselves if the wrong is not addressed.

Black America and Reparations

Art Alcausin Hall

excerpted from: Art Alcausin Hall, There Is a Lot to Be Repaired Before We Get to Reparations: a Critique of the Underlying Issues of Race That Impact the Fate of African American Reparations, 2 Scholar: St. Mary's Law Review on Minority Issues 1, 32-41 (2000) (295 Footnotes Omitted)

For African Americans, it is often easy to place sole blame for many of the problems of race and the perpetuation of those problems on White America generally. However, the second root of race problems in the United States is attributed at least in some part to African Americans themselves. The justification for this blame centers in the African American community's growing division.

A. The Difficulty of the Individual vs. Group Perspective in the Integration vs. Nationalism Debate

The history of African American reparations reveals the existence of diversity within the African American perspective in the past. Reparations was the advocacy flag of the nationalists in their internal struggle with integrationists, who argued that ending the old de jure discrimination was sufficient, and now people of African descent have to be able to work and cooperate within the system. The reparationists argued that America had a duty to remedy the past and maintain measures to equalize a society that was more than superficially divided.

The two camps differed primarily in their particular views of the dominance of the individual versus that of the group. Integrationists focused on the individual. For integrationists, "[t]he war [was] seen, in essence, as a war between individuals with different attributes, of which race [[was] only one. Equality exist[ed] as long as the rules of the game [were] fairly and even applied to everyone, without regard to race." The integration theory embodied the outcome of African American assimilation to white culture and norm and tended to be the advocated proposition of the dominating entity, which was the European perspective in the African American reparations context.

On the other hand, nationalism tended to be the theory of the submissive entity. Nationalists focused on the group and the collective conditions and experiences faced by African Americans. Proponents of nationalism rejected notions of "Black pathology and white supremacy" that often accompanied integration theory. One author argued, with regard to the importance of group experience in the reparations movement,



[T]he European-American individualist world view (the dominant perspective) [was seen] as the obstacle to a reparations program, because the value placed on individualism [was] so entrenched in the dominant perspective that it [could not] yield to foreign concepts such as group entitlements or group wrongs. Dr. Linda James Myers describe[d] the Afrocentric conceptual system characteristics as collectivism, group ownership, and ethical communalism, while the characteristics of the dominant conceptual system [ [were] materialism, competition, and individualism.



Largely because of its less threatening and complimentary nature to the dominant entity's policies, integration gained the most widespread acceptance. Nonetheless, despite integration's popularity, many have criticized the ineffectiveness of the theory and have pointed to other alternatives, such as reparations. "[T]wenty years of integration data starkly refute the promise of integration-based politics as the sole means of improving the quality of experience and results for the mass of African- Americans."

The failure of integration has encouraged the re-emergence of nationalism and reparations as a legitimate solution to the racial issues existing within the United States. Particularly for African American reparations, integrationism, being rooted in the individual, has been viewed as having little appeal or effectiveness in dealing with the African American quest as a whole.

Hence, with the growing frustration experienced by African Americans generally, the alternative of reparations as a solution for past and present racial ills continues to gain momentum. However, the continuing growth in the diversity of opinion and perspective within the African American community must be coalesced for reparations to become a feasible and acceptable alternative, noticed and entertained in the larger political arena.

B. Disunity in the African American Community

The integrationist versus nationalist debate is only part of the historic and present disunity and dissension in the African American community. The similarity of experience of African Americans after the Middle Passage helped to cement a unity that moved African Americans from slavery through the Civil Rights Movement to overcome common barriers of racism, discrimination, and oppression. This unity of experience, prompting unity of action, was one of the great impetuses of the Civil Rights Movement that inspired the African American community and affected the nation and world. But, one of the goals of the Civil Rights Movement was to expand the experience and potential socio-economic and political gains of African Americans.

Today, African Americans can be found on many different socio-economic, professional, and influential levels. Whereas in the pre-Civil Rights Movement days African Americans could be homogeneously categorized because their experiences and backgrounds were similar, such categorization is much more difficult today. The experience of African Americans is growing more dissimilar as many barriers are overcome, although some less obvious barriers persist or replace old ones, barriers are not so common today, or at least the perception of those barriers is viewed with greater diversity. While diversity within the Black diaspora is applauded and encouraged, this diversity has led to different perceptions of the problems - if problems are considered existent - and the solutions relevant and extensive enough to effectively and completely address those problems.

Differing policy perspectives can be traced as far back as the beginnings of slavery, when African tribes sold members of other African tribes into European slavery. Then during slavery, the "house Negroes" had different philosophies from their "field Negro" counterparts. Differences in the philosophies of Dr. King and Malcolm X also became evident, despite the fact that both experienced the same racial issues and attacked the same injustices of their time.

Presently, we see a rise in the number of African American representatives in the Republican Party, most notably Clarence Thomas, Colin Powell, J.C. Watts, and Alan Keyes. The increase of representation in the Republican Party contrasts what has traditionally been the party for African Americans - the Democratic Party. And today, the discussion of reparations within the African American community seems to parallel the historic dissension and disunity of the community.

C. Dissension within the Black Caucus in the African American Reparations Debate

With regard to African American reparations, many argue a significant problem for the African American reparations movement is that proponents of reparations must first acquire the support of wavering African Americans on the issue. One authority stated, "Not even all the members of the Black Caucus are on board. In fact, two black Democrats on the Judiciary Committee - Mel Watt of North Carolina and Bobby Scott of Virginia - have declined to follow their Democratic leader [Conyers]." Without an expansive and consistent front within the Black community, particularly the lack of leadership, African American reparations, with already very little to no support from the White American community, has little potential for enactment.

D. Young-Old Dichotomy and Its Effect on Plaintiff Identification and Apathy

Preventing further efforts toward racial progress and reparations is the increase of disunity within the African American community between the young and the old. Not all young African Americans have a strong knowledge of history and an understanding of the importance of history. African American young people must merely read and/or hear stories about the experiences that their parents, grandparents, and other forebearers faced, and they have a different experience and a unique set of race issues from that of their predecessors. The experiences and issues of the new and coming generations of African Americans seemingly warrant a different urgency and respect for issues of race, not always looked upon favorably, or more importantly understood, by those of the older generation.

For reparations, this age dichotomy has two important ramifications. First, practically speaking, a key element in the plaintiff identification factor of reparations is the closeness of the request for reparations to the actual injury. While a slave might have a cause of action requiring reparations, his or her children, grandchildren, etc., will have less of an opportunity to be repaired, even though they still feel the effects or aftereffects of that slavery. This limitation is in spite of the persuasive argument that the situation and time period in which slavery existed prevented the immediate request and/or granting of reparations through the courts or legislative bodies as a possible solution. In other words, when the evidence and parties needed for direct remedy were strongest and present, so too were the ideological, legal, and political barriers necessary to overcome to achieve that remedy. While many are working to base reparations on more recent injustices, the time factor continues to emerge as a primary issue in the African American quest for reparations.

The other important ramification of age diversity is the diminished understanding, commitment, and importance young people will place on issues of race. This reality, along with the difficulty of uncovering overt and covert forms of racism today, will result in fewer efforts of young African Americans to promote issues of racial importance, such as African American reparations, and challenge (much less even recognize) surfacing racial injustices. The issue of age diversity plays an important role in the feeling of lack of ownership for reparations among African American young people and the requisite support, rallying, and endorsement needed to move Congress to begin thinking about reparations possibilities and alternatives. Apathy and a "lax mentality" with regard to race issues has replaced not so much a "protest mentality," but somewhat of a constructive anger that might be termed "revolutionary" or "militant." This divide has served to exaggerate differences between African Americans based on age, socioeconomic status and lifestyle, political belief, definition and identity, etc. Such a divide augments already existent disunity and dissension.

E. Difficulty of Administering Race

The issue of age diversity leads to another practical problem in the African American reparations movement context - the difficulty of defining the parameters of race. Reparations is compensation for a group injury as opposed to an individual injury. However, the challenge for administering reparations is determining the elusive concept of race and defining who is a member of this injured group.

In the African American community, there are varying hues of blackness. In addition, there are many African Americans who do not necessarily identify as such but would rather be considered more in their multicultural, individual, or even "American" context. There are also native Africans, Caribbeans, other foreign members of the Black diaspora, and those who have recently been naturalized as American citizens. Finally, the African American community is becoming much more economically diverse, making the impact of the past less obvious for some African Americans than for others, and present race issues seemingly based on factors other than slavery, its effects, or even race in general. These factors lessen the ability to identify an injured party or group worthy of African American reparations.

The difficulty with remedying the past discrimination is determining the definition and confines of race and administering the remedies. "[T]he concept of race is central both to identifying and to rectifying the effects of prejudice. . . . [The] dichotomy between the importance of race classification to anti-discrimination law and its fundamental indeterminacy creates. . . a core dilemma of modern race-conscious law: the difficulties of how we 'administer race." '

Others argue the absurdity of this administration of race. Armstrong Williams, an African American conservative and employee of a D.C.- based public-relations firm, asks "Who are the descendants of slaves and who are not? . . . It would literally pay to be black. Everybody and their momma would claim they were black." These are difficult questions for the African American community, but they must be addressed prior to further discussions of the possibility of reparations.

F. Inconsistent Goals of the African American Community

In addition to the diversity discussed, the existing diversity leads to an inconsistent, unidentified goal and ensuing tensions. Americans - whether it be the government, white citizens, or "minority" or African American citizens - do not have a clear idea of what is being achieved. Thus, different ideas as to the goals set have led to different, often conflicting, efforts thereby creating tension.

The term "colorless," or "colorblind," society and "melting pot" have been bantered around for years. These terms connote the aim of earlier immigrants to assimilate into American society as a symbol of advancement. However, because this assimilation meant adopting White American culture rather than a perceived mixture of their own culture with others, many people of color, including African Americans, have begun to focus on different concepts - a "colorful" society and a "stewpot." These terms reveal a desire for a stronger group identity as part of this concept of an "American society." But, until these ideas become part of the more general aim of the members of the various communities of color as well as the general American society, interest in reparations and the meaning behind it will be futile, lost in conflicting goals. Indeed, there are differences, particularly within the African American community, that must be addressed and resolved before progress in the African American reparations movement can be made

New Avenues for Slavery Reparations

Michelle E. Lyons

excerpted from: World Conference Against Racism: New Avenues for Slavery Reparations?, 35 Vanderbilt Journal of Transnational Law 1235-1268 (October, 2002) (272 Footnotes)

The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR or Conference) took place in Durban, South Africa from August 30, 2001 to September 7, 2001 pursuant to U.N. General Assembly resolution 52/111. Prior to the actual discussion, the WCAR boasted five "themes," or issues, to serve as the basis for the Conference. First, the WCAR wished to address the sources, causes, forms, and contemporary manifestations of racism, racial discrimination, and related intolerance. Second, the WCAR aimed to discuss the treatment of victims of racism, racial discrimination, and related intolerance. Third, the Conference wished to consider and implement measures of prevention, education, and protection, thereby eradicating racism, racial discrimination, and related intolerance at the national, regional, and international levels. Fourth, in response to the discussion and acknowledgment of the sources, victims, and prevention of racial discrimination, the Conference aimed to create a provision for effective remedies, recourses, redress, and other measures at the national, regional, and international levels. Finally, the WCAR wished to explore strategies to achieve full and effective equality, including international cooperation and enhancement of the United Nations and other international mechanisms in combating racism, racial discrimination, and xenophobia.

The WCAR, which included representatives from 166 nations, adopted a non-binding "Declaration and Programme of Action that commits Member States to undertake a wide range of measures to combat racism and discrimination at the international, regional and national levels." Slavery was one of the key issues addressed through the Conference. The WCAR acknowledged that slavery and the slave trade constituted a crime against humanity, and urged "concerned States" to participate in compensation for its victims. Of the 166 nations in attendance, only 163 adopted the Declaration. The United States and Israel were among the dissenting nations.

The debate regarding reparations for slavery started, however, long before the opening of the Conference in Durban. Prior to the WCAR, U.S. Secretary of State Colin Powell intended to represent the United States at the Conference as the first black U.S. Secretary of State. However, two pivotal issues emerged prior to the Conference: a proposal that the United States and other nations that participated in the slave trade pay reparations for slavery, and language singling-out Israel for "practices of racial discrimination against the Palestinians." Before the Conference commenced, the United States sent diplomats to a final preparatory session in Geneva in an effort to eliminate references to demands for reparations and references offensive to Israel. In lieu of an apology for slavery or reparations for the descendants of slaves, the United States proposed an expression of regret combined with a pledge to aid African countries. Furthermore, the U.S. administration announced that unless the agenda was adjusted to its liking by the opening of the conference, the United States would be unable to attend.

By the conclusion of the Geneva session, the United States felt that a compromise had been reached on the issue of slavery reparations, but continued to reject the contentious language regarding Israel. As a result of the brewing controversy, Secretary Powell stayed in Washington and sent a mid- level delegation to the WCAR.

With four days remaining in the Conference, U.S. representatives had not successfully negotiated the removal of "hateful language" regarding Israel contained in a draft document, and Secretary Powell decided to remove the U.S. delegation from the Conference. Israel followed suit, removing its delegation and calling the Durban conference a "farce." Although the United States cited the controversy surrounding the anti-Israel language as its motivating factor for walking out of the Conference, other nations accused the United States of pulling out because of its own refusal to "accept responsibility for slavery and for injustices to Native Americans." Following the walk-out, U.S. National Security Advisor Condoleezza Rice stated that, rather than focus on reparations, other nations in the Conference should "look forward and not point fingers backward." Two days later, the European Union was also close to abandoning the Conference, fearing a decreased possibility of a meaningful outcome, because of its objections to the Arab nations' continued negative focus on Israel. A published quotation from one non-governmental observer stated, "without the EU and the U.S. there won't be any major rich countries left for the rest of the world to shout at."

While the Conference's final Declaration declared slavery a "crime against humanity," conflicting demands existed regarding reparations for the descendants of slaves. Zimbabwe led some African countries and African Americans in asking for an apology, as well as cash compensation to be paid to individuals by the Western countries that practiced the slave trade. South Africa and other African countries, however, supported reparations in the form of development funding from the former slave-trading countries.

After a week of debate the delegates reached a resolution, labeling the slave trade a "crime against humanity," and determining that states that benefited from the slave trade should help rebuild countries "and the diaspora" caused by slavery. However, the WCAR final documents were not released until January 3, 2002 because of the controversy surrounding the African countries' demand that several paragraphs referring to slavery be placed in the main part of the text, as opposed to the declaration. Western countries were fearful that the placement of wording in the text that "slavery and the slave trade are a crime against humanity and should always have been so" would change the context of the document. Ultimately, the final document stopped short of calling for reparations and an explicit apology from nations that benefited from the slave trade and colonialism. Instead, it simply encouraged nations benefiting from the slave trade to provide aid.

This Note discusses the legal implications surrounding the final documents produced at the WCAR, and the possibility of their use as a springboard for jurisdiction in both domestic and international judicial fora. In particular, this Note explores the recent moves toward forming a legally- grounded claim for slavery reparations, as opposed to the recent focus on public policy and moralistic compensation for past injustices.

[a1]. J.D. Candidate 2003, Vanderbilt University. B.S.B.A Marketing 1999, University of Missouri-Columbia. B.J. Advertising 1999, University of Missouri-Columbia. .

Legal Issues and Reparations

Adjoa A. Aiyetoro

excerpted from: Adjoa A. Aiyetoro, Formulating Reparations Litigation Through the Eyes of The Movement , 58 New York University Annual Survey of American Law 457-474, 464-472 (2003) (76 Footnotes)

II. DEVELOPING LEGAL STRATEGIES TO ADVANCE THE DEMAND FOR REPARATIONS

Unless a variety of strategies to obtain reparations are investigated and implemented, as appropriate, the demand for reparations remains a rhetorical one. Following in the footsteps of the Ex-Slave Mutual Relief, Bounty and Pension Association, advocates for reparations have lobbied for and supported the passage of H.R. 40, obtaining support from local and state legislative bodies and social, civic and legal organizations. Although obtaining legislative support is critical, it became clear in the 1990s that a litigation strategy was needed to complement the legislative work, and have the Congress and others take the movement more seriously. In order to have a litigation strategy that speaks with integrity to the demands for reparations, there is a need to redefine terms associated with the procedural and substantive hurdles faced.

A. Definitions Critical to Sustaining Litigation Created Through Focus on the Movement

In order for people who have been shut out of the system to obtain meaningful remedies for violations of their human rights, redefinition of some ordinary and some uncommon terms must be accepted by the legal system. In a challenging and thought-provoking article, Mari Matsuda suggests that the Critical Legal Studies movement should develop approaches to human rights issues generally and to reparations particularly in a "looking to the bottom" approach. Ms. Matsuda aptly describes the source of the demand for reparations when she says "[r]eparations is a legal concept generated from the bottom. It arises not from abstraction but from experience." By "bottom," Matsuda refers to those individuals who are alleging the violation of rights rather than those who have traditionally defined the scope of legal relief--judges, the state bar associations and other groups ensconced in the halls of power in the United States. "Looking to the bottom--adopting the perspective of those who have seen and felt the falsity of the liberal promise--can assist . . . in the task of fathoming the phenomenology of law and defining the elements of justice."

Rather than simply a tool for critical legal studies scholars to broach issues of human rights, this methodology must be utilized by those who are developing reparations litigation. The definitions of victim and injuries discussed in any number of fora must comport with the experiences of those who are raising the demand for reparations. Such an approach requires, necessarily, a willingness to "think outside the box" of the legal system in which we have been trained. It also requires persuading a judge and jury that the manner in which the reparations advocates define the demand is judicially cognizable, that it states a claim for which relief can be granted.

In validating dismissal of the plaintiffs' claim for reparations from the United States government in Cato v. United States, the Ninth Circuit Court of Appeals went to some lengths to articulate the procedural standards that plaintiffs must meet. In the final analysis, the court held that the claim for reparations was a political and not a legal claim. The court appears to have reached this decision because it was looking at the claims through the eyes of the traditional legal system, and not through the eyes of the plaintiffs, as Matsuda suggests.

Utilizing Matsuda's thesis, the lawyer and non-lawyer members of N'COBRA's Litigation Committee and the Reparations Coordinating Committee are crafting litigation that clearly defines, from the perspective of the movement, the justiciability of their claims. The procedural hurdles of standing, statute of limitations and sovereign immunity must be successfully addressed *if we are to sustain an action; yet the historical and present day experiences of Africans and African descendants in the United States must inform our approach to overcoming these hurdles.

B. Standing

In order for a plaintiff to avoid dismissal of a lawsuit, he or she must have standing to bring the action. Standing means that the defendant violated a legal right of the plaintiff and that the plaintiff consequently suffered a concrete injury--frequently called an "injury in fact." In the one reported reparations case, Cato, the Ninth Circuit ruled that plaintiffs had not shown a particularized, concrete injury to themselves from actions that violated a constitutional or statutory right. The problem of showing a particularized, concrete injury frequently arises in legal analyses about reparations for the Trans Atlantic Slave Trade and chattel slavery. Many view some aspects of the status of African descendants in the United States as a continuing injury of chattel slavery. Yet, in order to proceed with some anticipation of success, this injury must be particularized and lodged in named plaintiffs representing a class of African descendants. Many argue that this is difficult, if not impossible, given the historical facts. The United States was legally barred from engaging in the forced importation of Africans from Africa after 1808. Chattel slavery was legally ended for all enslaved Africans after the passage of the 13th Amendment to the Constitution in 1865. The question is then, how can an individual be injured in the legal sense by institutions and practices abolished over a hundred years ago?

Thirteenth Amendment jurisprudence provides one answer to that question. African descendents may seek relief under the 13th Amendment when the United States government fails to eliminate the badges and indicia of slavery. Thirteenth Amendment jurisprudence and the legislation that was passed pursuant to the 13th Amendment are the starting points for identifying the particularized badges and indicia of slavery that Congress identified, and also for determining if and by whom these rights are being violated and, finally, who has consequently suffered a concrete and particularized injury. This approach may, by legal necessity, narrow the plaintiffs to a class smaller than all African descendants in the United States. However, successfully raising the issue for some subgroup of African descendants is in fact a win for all African descendants, since it will legitimize the claim that reparations are owed for injuries that continue to be sustained by African descendants, the origins of which can be traced to slavery. The focus of reparations litigation, therefore, is to obtain a court order for reparative remedies to as broadly defined a class of African descendants as possible, pursuant to Federal Rule of Civil Procedure 23.

The jurisprudence of the 13th Amendment, having been revitalized in Jones v. Alfred H. Mayer Co., provides one legal route for a successful legal claim for reparations. For example, in identifying the vestiges of slavery, the Court in Jones relied on legislation that was passed pursuant to the 13th Amendment, the Civil Rights Act of 1866, finding that the defendant had denied plaintiffs the right to purchase property that was protected by this Act. Surviving portions of the Civil Rights Act of 1866 seem also to identify dual punishment systems, one for Africans and African descendants and one for whites, as a badge and indicia of slavery, requiring that African peoples "shall be subject to like punishment, pains, [and] penalties." The Act thereby ended in theory the badges and indicia of slavery in the punishment system.

In examining whether the criminal punishment system can be one domain in which we seek reparations, we look to the history of the dual punishment system that existed during slavery. The work of a number of organizations, including the Sentencing Project and the NAACP Legal Defense Fund, supports the view that this dual system continues today. Thus, African descendants subjected to punishments that are proven to be harsher than those given to white persons in similar circumstances would have standing to challenge them as badges and indicia of slavery as a continuation of this dual punishment system that was created in slavery.

Unjust enrichment is another legal theory that may serve as the basis of a reparations claim. Persons who are direct descendants of those whose labor and ideas were stolen may have a claim for unjust enrichment. Their families were denied the right to the benefits of their labor and creative ideas while others were, and continue to be, enriched by this appropriation. In defining injury through the eyes of those who are making the claim, African descendants who disproportionately live in poverty yet whose ancestors provided the base for the creation of modern-day industry, are injured in fact when corporations who exploited the system of chattel slavery thereby amassed many millions of dollars.

C. Statute of Limitations

The second obstacle to reparations claims is the statute of limitations. In the case of reparations for African descendants, the analysis suggested for overcoming the standing obstacle is helpful in overcoming this obstacle. If an African descendant plaintiff alleges an injury in fact that is occurring to him or her today because of a continuing badge and indicia of slavery, the statute of limitations poses little problem. Indeed, the Court in Cato recognized the "continuing violations doctrine" as a viable means to overcome a statute of limitations problem if the defendant is responsible for the continuing violation and can be sued for this violation.

Another possibility for addressing the statute of limitations is to establish that the Trans Atlantic Slave Trade and chattel slavery were crimes against humanity and that there are continuing injuries from these crimes. There is no statute of limitations for such crimes under international law. Of course, the United States has not admitted that these were crimes against humanity, and the international community has been quite unclear on this matter. The World Conference Against Racism's Declaration and Program of Action, accepted by the United Nations General Assembly in January 2002, were not signed by the United States. In the Declaration adopted by the conference, the international community regarded the Trans Atlantic Slave Trade as a specific occurrence in history for condemnation:

We acknowledge that slavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humanity not only because of their abhorrent barbarism but also in terms of their magnitude, organized nature and especially their negation of the essence of the victims, and further acknowledge that slavery and the slave trade are a crime against humanity and should always have been so, especially the Transatlantic Slave Trade and are among the major sources and manifestations of racism, racial discrimination, xenophobia and related intolerance, and that Africans and people of African descent, Asians and people of Asian descent and indigenous peoples were victims of these acts and continue to be victims of their consequences.

Countries throughout the western world preceded the United States in ending this institution, suggesting that the international community knew that chattel slavery was an inhumane institution. Litigators speaking through the voices of those who seek reparations, as with injury in fact, must present their claims in a manner that enables the courts to recognize the fundamental unfairness of using a time bar to prevent fair and just adjudication of crimes against humanity for which there are continuing injuries that are ripe for redress. Indeed, as Frederick Douglass expressed in his famous Fourth of July speech, prior to the end of chattel slavery in the United States, chattel slavery is a crime against God and man.

D. Sovereign Immunity

The third obstacle that must be overcome is that of sovereign immunity. Many African descendants identify the United States (and its predecessor colonies) as playing a significant role in the Trans Atlantic Slave Trade, chattel slavery and the continuing badges and indicia of slavery to which they are subjected. However, as demonstrated by Cato, it is difficult to articulate a reparative claim against the United States as an entity. The United States has waived sovereign immunity in lawsuits seeking non-monetary relief, but the voices of the Reparations Movement must agree to seek non-monetary relief for the litigation to be reflective of them. Although this movement has strongly urged that "reparations is more than a check," through the voice of N'COBRA, it does include a check.

Seeking monetary reparations from federal government agencies may also be difficult based on the Cato Court's refusal to extend the Bivens rationale for damages against individual employees to federal agencies. The problem may be less difficult if an action is against a state agency since 42 U.S.C. 1983 has allowed for lawsuits against state agencies for violations of constitutional rights. Again, however, this would require a restatement by African descendants articulating their reparations claims--changing the focus from the federal government to state actions.

The work of reparations litigators, therefore, becomes two- fold: locating a specific waiver of sovereign immunity that meets the demands and concerns of the Reparations Movement and articulating the claims for reparative remedies in a manner that satisfies both the Reparations Movement and the demands of the legal system.

[a1]. Legal Consultant, National Coalition of Blacks for Reparations in America (N'COBRA); Adjunct Professor, Washington College of Law, American University; Visiting Scholar, University of California, Santa Barbara.

Subcategories

Transatlantic Slave Trade
Article Count:
1
Slavery
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25
Laws related to Slavery
Article Count:
9
Articles related to Slavery
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16
Civil War and Reconstruction
Article Count:
10
13th Amendment
Article Count:
5
Legal Apartheid (Jim Crow)
Article Count:
7
Civil Rights Era
Article Count:
3
Racial reentrenchment
Article Count:
7
Reparations
Article Count:
34

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