Excerpted From: Kerri M. Gefeke, America to Me--A Public Nuisance Reparations Framework Through the Lens of the Tulsa Massacre, 55 UIC Law Review 681 (Winter 2022) (274 Footnotes) (Full Document)


KerriMGefekeBlack Americans have been held down, subjugated, and exploited within the colonial roots of the nation and the trans-Atlantic chattel slavery system as a racial caste. The post-emancipation period did not bring about harmony between the slaveholding class and the formerly enslaved. Instead, immediate gains toward racial equity as exemplified by the passage of the civil rights amendments were short-lived and followed by ninety years of continued oppression under Jim Crow. While the 1950s and 1960s is known as the Civil Rights era, and there were key judicial and legislative victories towards racial equality in the United States, the racial caste system did not dissolve, disappear, or fade away. Instead, it evolved and persists in its current form--mass incarceration.

In short, there have been 400 years during which Black men, women, and children have not enjoyed the benefit of “liberty and justice for all.” Black Americans built the institutions that are the face of this Nation and powered the economic engine allowing for its growth and success. Yet, the violence that has been inflicted upon them as individuals, families, communities, and as a people, has been profound. The whippings, beatings, rapes, castrations, brandings, executions, auctions, and family separations under slavery have been well-documented. The Ku Klux Klan's (“KKK”) role using cross-burnings, and lynching as mechanisms of fear and large-scale social control under Jim Crow are equally well-known.

Another common mechanism of social control has been the so-called race riot. These were violent uprisings along racial lines which often resulted in the loss of Black lives, homes, and businesses. The riots occurred under the apathetic gaze of the white power structure (the local, state, and/or federal government), and sometimes with its direct assistance. The Tulsa Massacre of 1921 is just one of many such race riots that has gained recent notoriety with the HBO series, Watchmen.

Whether discussing slavery or race riots, the government at various levels was not merely a bystander or an unwitting accomplice, but an active participant in setting the environment and fomenting the discord which led to violence. Additionally, government agents, be they police officers, mayors, governors, or National Guardsmen, have directly participated in and perpetrated these events. Throughout the United States' history, the government has done so because it was politically, economically, and socially expedient.

Thus, the Black survivors and descendants of this country's racial caste system--instituted and maintained by slavery, Jim Crow, race riots, and mass incarceration--have not experienced an America where “opportunity is real, and life is free, [e]quality is in the air we breathe.” Moreover, none of them have been made whole for their suffering. This Comment will explore one such mechanism meant to make victims whole: reparations.

Specifically, this Comment will analyze whether a public nuisance lawsuit is an effective path to recovery for slavery and race riot reparations advocates. Part II will address what reparations are; the types of reparations historically provided in the United States; their due as a result of the racial caste system built into the Constitution and systematically upheld through slavery and Jim Crow; past reparations efforts for Black Americans that failed; the current reparations lawsuit; and public nuisance doctrine. Part III analyzes these reparations lawsuits through the lens of the Tulsa Massacre of 1921 and explores whether a public nuisance lawsuit for reparations can succeed where these earlier lawsuits failed. Finally, Part IV assesses whether this public nuisance framing of reparations-based lawsuits is an effective advocacy strategy. Because, while “[b]ootstrapping isn't going to erase racial wealth divides,” reparations can begin to try.

[. . .]

“In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot--we dare not--let the Fourteenth Amendment perpetuate racial supremacy.” These words from Justice Blackmun, written forty-two years ago in the dissenting opinion of a case where the Supreme Court was already dismantling the states' ability to use affirmative action programs, are as applicable today as when they were written.

There is no clear cut or easy path for the United States to fully atone for its past sins. The wrongs of generations--past and present--still significantly impact the daily lives of millions of Black Americans keeping them from equal employment, equal healthcare, equal education, and equal justice. Although the past cannot be rewritten, measures can be enacted so even footing can eventually be achieved. Public nuisance lawsuits provide a localized to state-level avenue to provide reparations for past harm. These, combined with the changing public sentiment following the public violence against Black Americans in 2020, may be enough to prompt a true national legislative effort at reparations. It is true that “power concedes nothing without a demand,” so we must demand it. Now.

Kerri M. Gefeke, Juris Doctor May 2022, UIC School of Law.