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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. |
