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IV. Towards Truth and Reconciliation: The Polley Case as a Model?

      Slavery is the greatest atrocity in human history. For my kids to witness the freedom of their ancestors is overwhelming.

       --Anisa Dye-Hale

      The Polley case is novel on several levels. First, it is the first time since 1855 that a court has used nunc pro tunc to remedy a slavery case. This, by itself, is quite fascinating and may represent an interesting piece of trivia. Were this all that the Polley case represented, there would not be much else to say.

      It could be argued, however, that the Polley case decision is a step towards truth telling with respect to the institution of slavery and the harms it continues to instill. This is reminiscent of various Truth and Reconciliation Commissions that have taken place across the world to address the human rights abuses inflicted by national governments, militaries, or armed forces of each respective country. Truth and Reconciliation Commissions are intended to investigate these past violations of human rights and formally acknowledge this “long-silenced past.” As opposed to placing importance upon finding the truth underlying these human rights abuses, these commissions serve the purpose of officially acknowledging the truth. Although the principle of truth commissions is to acknowledge the truth and heal the wounds of the past, they are not always successful and can be set up by a government to manipulate the public's perception.

      Seen in this light, the Polley case is novel in a different and potentially more transformative respect. The Polley trial of 2012, by virtue of the fact that both the descendants of the Polley children and the Circuit Court of Wayne County, West Virginia felt it necessary to “set the record straight” about the status of the kidnapped Polley children, took a new approach to addressing the harm of slavery. The plaintiffs and the court explicitly sought to address directly the history of stigma through utilizing nunc pro tunc to conclude an adjudication and make a declaration that the Polley children should have been declared free persons as of 1859.

      Admittedly, this situation is probably as unique as it is novel. The likelihood of similar cases concerning emancipated slaves who were then kidnapped wrongfully and for whom nunc pro tunc adjudication would be appropriate is probably quite low. And even if it were not low, the fact of the matter is that the amount of historical research necessary to bring to light another similar case would be extraordinary.

      In these respects, Polley defies these odds. As both the judge and the family members pointed out, their desire was to “set the record straight” and to bring to light this unresolved history. This seems to run counter to the trends of wanting to avoid conversations of slavery and its effects; it brings it to light so that the family that suffered its indignity can know the truth and the present community can acknowledge and at least be aware of its history.

      This deliberate choice represents an important model--or at least an important suggestion--about how to approach the difficult history of slavery in our society. Though there is not likely a literal open case waiting for adjudication like Polley, conversations could nonetheless be based on the reality of slavery and a concrete consideration of that history based on what happened to the real enslaved people and the injustices they faced. Put another way, the twenty-first century adjudication of the Polley case represented an instance where the plaintiffs' representatives had the opportunity to name the indignity they suffered and claim redress--even if the redress only has rhetorical force over 150 years after the crime was committed--and a court recognized and sanctioned that need.

      This kind of truth telling is reminiscent of the various and occasional efforts to establish Truth and Reconciliation projects in various places throughout the world. In South Africa, for example, the effort to recover from Apartheid was undergirded by the Truth and Reconciliation Commissions established throughout that country. Those commissions worked on the premise that persons who were involved in the crimes and abuses of the Apartheid regime could come and state their role and disclose completely the crimes of which they knew. In exchange, they were in many cases granted amnesty for their actions, but they were required to face the public and acknowledge their actions. The benefits were numerous, including the ability for both the perpetrators of the crimes and the victims (or their descendants) to know the whole truth about the actions of the state during that time. This created a path for dialogue and created a possibility for national healing--a unique occurrence so soon after the ending of the South African Apartheid regime.

      These essential elements--an opportunity to be heard, a redress for past wrongs, and state recognition and sanction of the redress--seem to provide suggestions as a way forward to considering how to address the left-over wrongs of the era of de jure White Supremacy.

      This conversation has never happened on the institutional level in the United States. Indeed, the legacy left by the end of the slavery era was one of renewed American Apartheid through Jim Crow and then eventually the changes brought about by the political and legal Civil Rights Movement of the 1950s and 1960s. At least one unintended consequence of this movement of change and evolution was the fact that conversations about the legacy of slavery and the government's responsibility for that legacy have remained at the level of abstract policy. The government has not engaged in a dialogue about the lived history of slavery and its enduring legacy. This dialogue--which is not about monetary reparations, but about creating awareness and seeing the past, and eventually the present, as it is--seems essential in order to create progress in the ongoing confrontation of the legacy of racism. It provides an opportunity to reframe not only our history, but also our modern debates concerning race. If we can consider anew the indignity of slavery, segregation, and second-class status perpetrated by systems and individuals in our tortured legacy around race, we can understand the discourse that surrounds affirmative action, immigration, and even reparations in a different way.

      Moreover, beyond the societal and collective potential that a Truth and Reconciliation type discussion would allow, this approach provides a real opportunity for validation and transformation on the individual and community level. The descendants of the Polley children through their own reflections have spoken to the psychic benefit that the court's declaration provided. For example, in reflecting on the import of the trial, Theresa Polley Shellcroft said, “I am struck by the overwhelming emotions of this entire event . . . [t]o go from not knowing who you are--or your roots--to knowing your family history with court records to document that history, to witnessing the decision that began 160 years ago about whether your ancestors were legally free or slaves is James Hale also reflected on the momentous nature of the trial: “[T]his is a legacy for our family that future generations can talk about . . . [m]y grandchildren can say, ‘I sat in the courtroom as part of the

      These quotes suggest that for the descendants of the Polley children, the declaration validated what they believed about themselves and their ancestors and transformed the narrative of kidnapping and enslavement to one of freedom. Moreover, for the audience in attendance at the trial, those who read the newspaper accounts and even now as you the reader consider this Essay, this truth telling provides an opportunity for us to consider concretely the history of slavery and transform our own views about it. And yet, as I reflect on this, I am aware of the fact that this specific factual scenario would be difficult to implement en masse. As Shellcroft explained, “[T]here are not many people, period, in the world who can find their family history documented. It's overwhelming. It's knowing who you are and where you came from. For many African-Americans that's not possible.”

      Yet, through using the power of the state to provide space to allow voices that were silenced to speak their truth about their indignities, it is possible that the larger validation and awareness can take place. Perhaps the Polley case represents a way to rethink the historical trap of forgetfulness and continually defining our world by the legacy of White Supremacy. The adjudication completed history, validated the Polley descendants views about their ancestors and themselves, and raised the consciousness of those involved and those who watched it.

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