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Vernellia R. Randall
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The University of Dayton

 

   
   

 

 

Robert Westley

excerpted from:  MANY BILLIONS GONE: IS IT TIME TO RECONSIDER THE CASE FOR BLACK REPARATIONS? , 40 Boston College Law Review 429-476 (1998) (citations omitted)

Editor's note: This article has over 170 footnotes. The footnotes have been edited out for presentation in this forum. I encourage you to see the original article for not only the scholarly documentation but the extensive explanations that Professor Westley  provided in his footnotes.

A. Japanese Americans

In 1942, under the authority of President Franklin D. Roosevelt, 120,000 people of Japanese ancestry from the West Coast were ordered to be evacuated, relocated and interned by the U.S. military. Approximately two-thirds of those interned were native-born American citizens. The internment order was issued in direct response to the bombing of Pearl Harbor by the Japanese Empire. The research of Professor Peter Irons revealed that the government fraudulently concealed its actual reasons for internment of Japanese-American citizens from the Supreme Court in initial litigation challenging the internment order. Subsequent litigation efforts have overturned cases upholding the government's authority to enforce the internment order. History has shown that greed, prejudice and "race" hatred had more to do with the internment of Japanese Americans than concern for national security.

The indignities suffered by Japanese Americans due to their internment were not confined to their loss of freedom. They lost both real and personal property. They lost businesses and employment income. They lost pets and farm animals. They were forced to wear identification tags, and many endured living conditions unfit for animals. They suffered the disruption of familial life and customs. They suffered disease and hardship from exposure to the elements, poor sanitation and poor diet. They lost all rights to privacy, even to the extent of performing ordinary bodily functions. They suffered shame. They lost educational opportunities. They lost freedom of expression and the ability to communicate freely with others outside the camps. They were denied the right to use the Japanese language or read Japanese literature other than the Bible and the dictionary. They lost control over their own labor. Even the moral conscience of Japanese Americans was invaded by conditioning release on swearing an oath of loyalty to the United States. Many internees, especially the elderly, endured these conditions for as long as four years. Many died. Upon release, hostility towards Japanese Americans continued, though the majority had neither homes nor businesses nor jobs to which to return.

Despite their tremendous collective losses, the government initially provided only minimal assistance to help those who had been interned return to normal life. Most received train fare and $25. In 1948, Congress enacted the American-Japanese Evacuation Claims Act. This piece of legislation remained the only official attempt by Congress to compensate Japanese-American property losses for over forty years. It was flawed primarily for the following reasons. First, it required the Attorney General to limit any award to $100,000 upon a showing that damage or loss of property was "a reasonable and natural consequence of the evacuation or exclusion ...." Second, it required that compensation be paid only for loss of property that could be proved by records. Finally, once a claim had been paid under the Act, the claimant waived his or her right to make any further claims against the United States arising out of the evacuation.

On August 10, 1988, President Reagan signed the Civil Liberties Act of 1988 into law. In doing so, he set in motion the statutory means by which Japanese Americans would begin to receive federal reparations payments. Although deficiencies remain in how the government has implemented this legislation, the importance of the legislation lies in the precedent established for compensation of wronged groups within the American system. Crucially, the Civil Liberties Act pays compensation to the group (surviving internees and their next of kin) on the basis of a group criterion. The Act acknowledges that Japanese Americans were harmed as a group; that they should be compensated as a group; and that they should be made whole economically for the injuries they suffered on the basis of group membership. In addition to monetary compensation, the law also authorized institutions by which the injustice done to Japanese Americans may be memorialized.

Memorializing injustices committed in the past is not only an obviously important way of preventing those same injustices from occurring in the future; it also provides public recognition of suffering, a chance for victims and their ancestors to mourn their loss in a social space that symbolizes respect, and a constant reminder to potential aggressors or the destructively indifferent that history will not overlook grievous abuses of human dignity.

Perhaps there are some lessons in the Japanese-American reparations experience for those seeking reparations for Black Americans. In Racial Reparations: Japanese American Redress and African American Claims, Professor Yamamoto suggests that Japanese-American claims succeeded, as did those of Blacks who were the survivors of the Rosewood massacre, because they, unlike the reparations claims of Black Americans generally, fit tightly within the individual rights paradigm of the law. He proposes that successful claims must fit the traditional individual rights paradigm of the law by satisfying the demand for identifiable victims and perpetrators, direct causation, damages that are limited and certain, and acceptance of payment as final. The demand for identifiable victims and perpetrators and direct causation is difficult (if not impossible) to meet from a class whose reparations claims include acts that occurred hundreds of years ago, and many of whose members were not yet born when the most egregious violations were occurring.

Importantly, however, a tight fit with the individual rights paradigm may be considered a legal prerequisite to success only in the context of judicially imposed redress. A tight fit is not a moral prerequisite, nor is it a legal barrier to legislative redress. It is noteworthy that even Japanese-American claims were denied by courts and ultimately awarded by Congress. Additionally, the survivors of the Rosewood massacre received reparations as a result of the action of the Florida legislature. In the context of legislative action, the demand for a tight fit may be a practical or political, rather than a legal, prerequisite to success. Political realities change. As in the case of reparations for Japanese Americans, political realities changed partly as a function of the passage of time (allowing an abatement of anti-Asian hostility), partly as a function of concerted effort by community activists who challenged the status quo (demanding that American society live up to its professed ideals), and partly as a function of shifts in international relations (at the time that Japanese-American reparations were approved, Japan had become an important U.S. ally and a major economic force). Standing alone, a tight fit with the individual rights paradigm of the law could not persuade American courts to award group reparations even to identifiable victims of racial injustice.

B. European Jews

If, arguendo, the example of the Japanese-American internment, followed by legislation enabling Japanese Americans to receive reparations and public recognition of their suffering, can serve as a limiting case of the United States' willingness to redress wrongs committed against a group with group remedies, then the example of Wiedergutmachung for the Jewish survivors of the Holocaust should be considered the model from which it is drawn. The Nazi attempt to exterminate European Jewry stands as the centerpiece of the twentieth century conception of genocide. In this regard, we can say with confidence that all the suffering Japanese Americans endured at the hands of the white American establishment, European Jews certainly suffered under the viciously corrupt government of Nazi Germany.

While the number of Jews who lost their lives as a result of the Nazi campaign of genocide is staggering, the methods employed by the Nazis to accomplish their goals evince an irredeemable degree of hatred and cruelty. But the shocking and gruesome means by which the Nazis slaughtered millions of Jews cannot distract our observation of Jewish material and economic losses. Those losses too were staggering.

Germans plundered Jewish property in a variety of ways. Jews were forced to hand over their jewelry and other valuables, their bank accounts were frozen, they were not allowed to inherit, and they were subjected to collective levies and fines. Jews, fearing their property would be seized, tried transferring it--in toto or in part--to non-Jews by fictitious sales or else sold it at prices far below its real value. Others, deprived of their source of livelihood and in need of wherewithal to go on living, were forced to sell off their belongings. After the greater part of their property had been taken from them in the guise of a "Flight Tax" (Reichsfluchtsteuer), those who emigrated could only take a small sum of German money and that too was converted to foreign currency at the lowest possible rate. Fleeing Nazi persecution, tens of thousands of Jews abandoned homes, businesses and personal property. Germans confiscated Jewish possessions by concentrating the Jews in ghettos and other sealed-off areas. At the point that the Germans began deporting Jews to concentration camps, they often had very little left.

Even before the end of World War II, plans were being formulated by Jewish organizations and personalities outside Germany for compensation to individuals and reparations to the Jewish people as a whole. The eventual claimants who signed the Luxemburg Agreements in September, 1952 were the State of Israel, on behalf of the half-million victims of the Nazis who had found refuge in its borders, and the Conference on Jewish Material Claims against Germany [hereinafter the Claims Conference], on behalf of the victims of Nazi persecution who had immigrated to countries other than Israel and of the entire Jewish people entitled to global indemnification for property that had been left heirless. The Luxemburg Agreements became the basis of an unprecedented piece of legislation known as Wiedergutmachung.

Wiedergutmachung was unprecedented in several respects. First, international law did not require Germany to make reparations payments to victims of the Holocaust. Nor did the Allied Powers exert pressure on Germany to accede to the Luxemburg Agreements. The treaty obligation by which Israel was to receive the equivalent of one billion dollars in reparations from West Germany for crimes committed by the Third Reich against the Jewish people reflected Chancellor Konrad Adenauer's view that the German people had a moral duty to compensate the Jewish people for their material losses and suffering. Secondly, the sums paid not only to Israel, but also to the Claims Conference, showed a genuine desire on the part of the Germans to make Jewish victims of Nazi persecution whole. Under Protocol No. 1 of the Luxemburg Agreements, national legislation was passed in Germany that sought to compensate Jews individually for deprivation of liberty, compulsory labor and involuntary abandonment of their homes, loss of income and professional or educational opportunities, loss of (World War I) pensions, damage to health, loss of property through discriminatory levies such as the Flight Tax, damage to economic prospects, and loss of citizenship. The elderly, the needy and the disabled were to receive priority in payment. Near heirs were eligible to assert the claim of a persecutee who died without receipt of payment. Real property was to be restored, with extremely limited protection of "good faith" purchasers, and identifiable personal property was also to be restored or compensated. In matters of proof of possession, equitable consideration was given to persecutees whose files and documents had been lost or destroyed.

Finally, Wiedergutmachung was remarkable and unprecedented for the principle it established. As David Ben Gurion was to say after signing of the Agreements: There is great moral and political significance to be found in the Agreement itself. For the first time in the history of relations between people, a precedent has been created by which a great State, as a result of moral pressure alone, takes it upon itself to pay compensation to the victims of the government that preceded it. For the first time in the history of a people that has been persecuted, oppressed, plundered and despoiled for hundreds of years in the countries of Europe a persecutor and despoiler has been obliged to return part of his spoils and has even undertaken to make collective reparation as partial compensation for the material losses.

The principle, then, was that when a State or government has through its official organs--its laws and customs--despoiled and victimized and murdered a group of its own inhabitants and citizens on the basis of group membership, that State or its successor in interest has an unquestionable moral obligation to compensate that group materially on the same basis. Jews were persecuted and oppressed in Germany as a group. Germany sought to compensate them both individually and as a group. Much of the impetus behind the Jewish demand for group compensation was the realization that, because so many of the Nazi's Jewish victims had perished, the new German State would reap the material benefits of Nazi crimes. Like abandoned Japanese property on the West Coast which escheated to the state and was auctioned off, heirless Jewish property in Germany provided yet another classic example of unjust enrichment. Wiedergutmachung in the form of reparations to the entire Jewish people significantly diminished the extent of this injustice.

It is unlikely that David Ben Gurion, in stating that the Luxemburg Agreements represented a "first" in the history of human society, was unaware of the situation of Black people in the United States. Blacks have never received any group compensation for the crime of slavery imposed upon them by the people and government of the United States. As in the case of the Japanese, Jews received not only material compensation for their losses, but their victimization was also publicly memorialized in Germany, Israel and in the United States (even though there was no legitimate claim of oppression or genocide that Jewish survivors of the Holocaust might assert against the United States). The only "memorial" dedicated to the suffering of Black slaves and the survivors of slavery in the United States is contained in a series of legislative enactments passed after the Civil War. The history of Black Reconstruction shows how these enactments were successively perverted by the courts, and by Congress itself.

C. Black Americans

After the hostilities of the Civil War ended, Congress pursued a legislative program calculated to secure the social and political equality of the freedmen. In pursuance of its enforcement power under the Fourteenth Amendment, Congress passed the Ku Klux Klan Act of 1871. Congress also passed the Civil Rights Act of 1875 under the Fourteenth Amendment. Its preamble stated: [W]e recognize the equality of all men before the law, and hold that it is the duty of government in all its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political...[and that it was] the appropriate object of legislation to enact great fundamental principles into law.

In pursuance of its enforcement power under the Fifteenth Amendment, Congress also passed the Civil Rights Act of 1870. This Act essentially reiterated the provisions of the 1866 Act, adding criminal penalties for violation of the law, a conspiracy section, and sought to effectuate the right of free suffrage.

At the same time, Congress sought to ensure the future economic independence of Black people. Of the Freedmen's Bureau Acts passed for the economic independence of Black people, the most important aspects were the land and education provisions. Under the first Act, Congress made no appropriation for the duties assigned to the Bureau. The Bureau's income was derived from abandoned lands rented to freedmen and refugees. As President Johnson pursued his policy of pardoning ex-Confederates and restoring their land to them, however, the Bureau was gutted of its only source of funding. More importantly for the freedmen, their hope of buying this land from the federal government evaporated.

Congress acted again in the summer of 1866, this time not through Freedmen's Bureau legislation, but by extending the hope of land to the freedmen through the Southern Homestead Act. Under the Act, lands in Alabama, Arkansas, Florida, Louisiana and Mississippi were opened for settlement in eighty-acre plots. Ex-Confederates could not apply for homesteads before January 1, 1867. This gave the freedmen roughly six months to purchase land at reasonably low rates without competition from white Southerners and Northern investors.

Because of their destitution and depressed economic conditions in the South, most freedmen were unable to take advantage of the homesteading program. The majority of the homesteads were taken up by Blacks in Florida, but even there the total number was only a little over three thousand. The lands provided by the Homestead Act were generally inferior for farming purposes. Often the lands were distant not only from transportation lines but also from employment centers where freedmen needed to work until they could become self- supporting. Most homesteaders lacked both the means for a few months' subsistence and the most elementary farming equipment. The homesteading program was thus a miserable failure.

The work of educating the freedmen was first taken up during the war by the benevolent societies of the North, such as the Edward L. Pierce group, the American Tract Society, and the American Missionary Association. By January, 1865, 75,000 Black children in the Union-occupied South were being taught by approximately 750 teachers. Nearly all those who received compensation for teaching Black pupils in the South during this time were supported by private charities.

Under the Freedmen's Bureau Act of 1866, Congress provided $500,000 for rent and repair of school and asylum buildings, and decided that the Bureau might "seize, hold, lease or sell for school purposes" any property of the ex- Confederate States. To meet the need for permanent schools, the Bureau in most states paid for completion of buildings that the freedmen themselves began constructing. Often these structures were located on land that the freedmen had purchased for themselves. Additionally, in order to obtain financial assistance from the Bureau, school organizations were required to ensure that the buildings would always be used for educational purposes and that no pupil would ever be excluded because of race, color, or previous condition of servitude. By March, 1869, the Bureau had either built or had helped to build 630 schoolhouses. It had spent $1,771,132.25. In the next three years, its appropriation for educational expenses amounted to another $2,000,000.

From 1867 to 1870, the Bureau furnished $407,752.21 to twenty institutions of higher learning for freedmen and $3,000 to a school for white refugees. Of this amount, $25,000 went to Howard University in the nation's capital. By 1871, there were eleven colleges and universities and sixty-one normal schools in the nation which were especially intended for Blacks.

For the safekeeping of the freedmen's savings and the investment of their wartime bounties, Congress also chartered the Freedman's Bank under the Freedman's Saving and Trust Company Acts. The bank was a miserable failure, which, in the end, deprived many of its trusting depositors of their savings.

Although no federal plans for reparations to the former slaves were ever considered, even by the most "radical" members of Congress, the lands provision of the first Freedmen's Bureau Act was intended to make good on a promise that had first been planted in the minds and hearts of Black people by General Sherman. While the Freedmen's Bureau Act of 1865 had promised to purchasers of the lands only "such title thereto as the United States can convey," once the government assigned plots and collected rents and gave options, the radical politicians would be able to argue that it was morally bound to pay reparations to the freedmen. The government could hardly take back for the sake of slave masters and traitors, they would say, what it had given to freedmen and loyalists.

The purpose of the land redistribution plan, as with many of the programs instituted during Reconstruction, was not only to punish the Confederates, but to create among the freedmen a landowning yeomanry, to indebt the freedmen politically to the Republicans, and to ensure the future economic independence of the freedmen. The purpose of land redistribution, however, was not by any means to pay reparations to Blacks for their loss of freedom and uncompensated labor. Ironically, during its first year of operation, the freedmen financed the efforts of the Bureau with the rents they paid and they were expected to buy the lands that the Union had confiscated. Even more tragically, President Lincoln had supported, both before and during the war, a plan to pay slaveowners for their lost "property" as a means of ending slavery.

Opponents of land redistribution, rejecting the radical analogy of Blacks to the Indians, stated: There are many reasons why Congress may legislate in respect to the Indians which do not apply.... The Indians occupy towards this Government a very peculiar position. They were in possession of the public domain; they had what the Government recognized as a possessory right....

Congressional critics of Freedmen's Bureau legislation also objected that the position of the freedmen within the American polity was not sui generis, and therefore "class legislation" on their behalf wasneither justified nor in the spirit of the American Constitutional system.

The desire for landownership was both natural and strong among the freedmen. They had cultivated the land on Southern plantations for generations. They had fought in the war to gain their own freedom. Despite the abuses they endured from white Southerners, they thought of the South as their home. In fact, the desire for land was so strong, the belief that the government would deliver so great, and the freedmen's knowledge of government protocol so poor, that carpetbaggers were able to sell fake land deeds to the former slaves. The freedmen were sometimes sold painted sticks which supposedly had been distributed by the government for the purpose of staking out the negroes' forty acres. One spurious land deed proclaimed: Know all men by these presents, that a naught is a naught, and a figure is a figure; all for the white man, and none for the nigure. And whereas Moses lifted up the serpent in the wilderness, so also have I lifted this [damned] old nigger out of four dollars and six bits. Amen. Selah! Given under my hand and seal at the Corner Grocery in Granby, some time between the birth of Christ and the death of the Devil.

There is no need to recount here the horrors of slavery. Suffice to say that, if the land redistribution program pursued by Congress during Reconstruction had not been undermined by President Johnson, if Congress' enactments on behalf of political and social equality for Blacks had not been undermined by the courts, if the Republicans had not sacrificed the goal of social justice on the altar of political compromise, and Southern whites had not drowned Black hope in a sea of desire for racial superiority, then talk of reparations--or genocide--at this point in history might be obtuse, if not perverse.

As things stand, however, the South pursued a policy of racial separation with the sanction of the Supreme Court and the silent consent of Congress for a century after the official abolition of slavery. The expedient of the lynch mob secured for white supremacists the twin goals of control and exploitation of Blacks on the one hand, and extermination of Blacks on the other. Since Blacks (or "disloyal" whites) could be lynched, beaten, castrated, or burned to death with basic impunity, usually on the pretext of rape of a white woman, the twin goals were met. Total annihilation was never forced to an issue. Even during Reconstruction, Blacks had very little to say about what was owed to them as a group that the white man was bound to respect. That situation has changed remarkably little.

The material bases of the claim for group reparations to Blacks are (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. As Boris Bittker argued succinctly in 1973, the claim for reparations cannot be limited to the outrageous exploitation of Blacks perpetrated during slavery. The ugly facts of the recent past and contemporary life also require redress and compensation. The legacy of Jim Crow is still with us, as the statistics from Pettigrew quoted earlier demonstrate. The psychological inheritance of slavery still exercises the image of the Black in the white mind.

Though slavery officially ended, the attitudes toward intrinsic Black character, based on ideologies of race, persisted. One of the best contemporary articulations of this persistent belief in the duality of Black character occurs in James Baldwin's Notes of a Native Son, in the essay, Many Thousands Gone. There Baldwin writes: In our image of the Negro breathes the past we deny, not dead but living yet and powerful, the beast in our jungle of statistics. It is this which defeats us, which lends to interracial cocktail parties their rattling, genteel, nervously smiling air: in any drawing room at such a gathering the beast may spring, filling the air with flying things and an unenlightened wailing.... Wherever the Negro face appears a tension is created, the tension of silence filled with things unutterable.

Blacks deserve reparations not only because the oppression they face is "systematic, unrelenting, authorized at the highest governmental levels, and practiced by large segments of the population," but also because they face this oppression as a group, they have never been adequately compensated for their material losses due to white racism, and the only possibility of an adequate remedy is group redress.

Part III: HOW BLACK REPARATIONS FULFILL THE  ANTIRACIST AGENDA OF THE BLACK FREEDOM STRUGGLE
 
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A Moral Justification For Affirmative Action and Reparations ] African American Middle Class and the Cost of Discrimination ] Black America and Reparations ] Developing Legal Strategies to Advance Reparations ] Does a Prima Facie Case For Reparations Exist? ] Dominant Perspectives on Reparations ] Governmental Reparations for Slavery ] JP Morgan Chase Manhattan Bank and Slavery ] Political Autonomy as a Form of Reparations ] The Role of the Federal Government in Slavery and Jim Crow ] Slavery and Tort Law ] Reparations and the Failure of the Constitutional Amendments ] Reparations as Redistribution ] Slavery Segregation and Reparation ] Slavery Segregation and Reparations ] The Mass Tort Analogy and African American Reparations ] The Case Against Black Reparations ] Unjust Enrichment and Reparations for Slavery ] The Cultural War over Reparations for Slavery ] The Case for Black Reparations Redux ] The Case for Black Reparations ] The Origins of the Tulsa Riot and its Damage ] The Race-Skewed Notion of Victimhood ] Transforming Public Perceptions of Reparations ] Uncivil Wars and Reparation ] WCAR-New Avenues for Slavery Reparations ] White America and Reparations ] Slavery, Reproductive Abuse, and Reparations ] Statutes of Limitations and Reparations ] Takings Clause Solution to Reparations ]
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