Friday, December 03, 2021

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V. History of Compensation


In recent history, various racial groups have been compensated for harms suffered at the hands of the U.S. government. Most notably, Native Americans have been compensated for the theft and destruction of their property that occurred at the turn of the century. This compensation, although not a direct cash payment and not explicitly cited as necessary for current retribution for past wrongs, is nonetheless an acknowledgment of the federal government's guilt and acceptance of responsibility. Government documents, however, make clear that the financial assistance, most popularly in the form of free or nearly free higher education, but also in tax breaks, available for "eligible" Native Americans is not an entitlement program. Surprisingly, there are no comparable programs for other minorities. If the education "scholarship" were the same as any other federal financial aid program for those showing financial need, why require that the applicant have a certain percentage of Native American blood or be on a tribe's membership roster? The language itself indicates that the Native Americans have been identified as a group receiving special services as a result of their being Native American.

Significantly, Native Americans have been permitted to recover where other victims of government brutality were not due to courts' recognition of a fiduciary duty that exists between the government and the tribes. In at least one case, the U.S. Court of Appeals for the Ninth Circuit considered and subsequently rejected any attempt by African-American plaintiffs to situate themselves in the same or similar relationship as Native Americans to the U.S. government.

Native Americans have been successful in gaining the right to sue the government and have obtained monetary and non-monetary relief as a result of their suit. The Cato court acknowledged that regardless of whether there are factual similarities between the treatment accorded Indian Tribes and African-American slaves and their descendants, there is nothing in the relationship between the United States and African-American slaves and their descendants that is legally comparable to the unique relationship between the U.S. federal government and Indian Tribes. The court noted that other courts have recognized a fiduciary responsibility running from the government to Indian Tribes because of specific treaty obligations and a network of statutes that impose specific duties on the government. This unique relationship has extended statutes of limitations that would have otherwise barred claims against the government, and has allowed for monetary relief where otherwise only injunctive relief would have been permitted.
African-Americans are unable to point to any such treaties or statutes that require a similar obligation or create such exceptions. Fortunately, African-Americans do not need to establish any such relationship given the self-executing nature of the Takings Clause.

Nationally, President Clinton apologized to indigenous Hawaiians for the illegal United States-aided overthrow of the sovereign nation's local government and the near decimation of traditional Hawaiian culture that followed; the Methodist Church apologized to Native Americans in Wyoming for the 1865 post-treaty slaughter at the hands of the U.S. cavalry led by a Methodist minister; the Florida legislature awarded reparations to survivors of the Rosewood massacre; the federal government offered an apology to the African-American victims of the Tuskegee syphilis experiment, and agreed to apologize to and provide limited reparations for Japanese Latin Americans kidnapped from Latin American countries and placed in U.S. internment camps as hostages during WWII.

The Japanese survivors and descendants of the Japanese-American WWII internment victims based their reparations case primarily on a legal strategy that couched their claims in an individual rights context and focused on tolling or otherwise avoiding the statute of limitations. Specifically, 1) their challenge addressed a specific executive order and ensuing military orders; 2) their challenge was based on then-existing constitutional norms (due process and equal protection); and 3) both a congressional commission and the courts identified specific facts amounting to violations of those norms. Furthermore, the claimants (those who had been interned and were still living) and the government agents (specific military and Justice and War Department Officials) were both easily identifiable as individuals. These agents' wrongful acts resulted directly in the imprisonment of (and thus injury to) innocent people. The damages to these people, although uncertain, covered a fixed time and were limited to survivors, and the payment of these damages meant finality.

The descendants of the Japanese-Americans interned during WWII have been monetarily compensated twice within the last fifteen years for the loss of their property. In 1948, President Harry S. Truman signed the Japanese American Evacuation Claims Act allowing reimbursements. Some 23,689 claims were filed asking for $131,949,176. By the time these claims outlasted federal procedures which required itemized claims and receipts, the federal government recompensed Japanese Americans $38,000,000 or about 29 cents for every dollar claimed. On September 17, 1987, the U.S. House of Representatives passed a law including a formal apology to Japanese Americans for the internment and providing $1.2 billion in compensation.


The plight of the slaves' descendants is most similar to that of the Korean women who filed suit in the Tokyo District Court against the Japanese government for crimes during WWII. Between 1932 and 1945, Japan forced Korean women into slavery and prostitution in Manchuria, China, the Philippines, and Thailand, among other regions of the Pacific. The resulting experience of this treatment was similar to that experienced by African-Americans after abolition: discrimination, higher unemployment, fewer educational opportunities, substandard housing and political oppression.

Most recently, the Japanese government awarded these women reparations. Their legal strategy, arguing that Japan violated international law by perpetrating crimes against humanity, is unlike those of the Japanese-American internees, but presents a viable possibility for African-Americans who suffer as a result of the treatment of their ancestors.

Holocaust survivors have been the most successful in gaining, not only apologies, but also monetary compensation for their experience as forced laborers and slave laborers. The sources of the reparation funds have come from not only Germany, but also from banks and private and government-owned companies spanning the four corners of Europe.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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