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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)


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.