The opinion of the court was delivered by: CHARLES NORGLE, District Judge
Before the court is Defendants' Joint Motion to Dismiss
Plaintiffs' Second Consolidated and Amended Complaint. For the
following reasons, the motion is granted with prejudice.
This case arises out of the institution of human chattel
slavery as it existed in the North American colonies and the
later formed United States of America. The allegations in
Plaintiffs' Second Consolidated and Amended Complaint ("SCAC" or
"Complaint") retell the generally acknowledged horrors of the
institution of slavery, and the malignant actions of the
sovereigns, entities, and individuals, foreign and domestic, that
supported that institution. Plaintiffs' Complaint asks the courts
to reexamine a tragic period in our Nation's history and to hold
various corporate defendants liable for the commercial activities
of their alleged predecessors before, during, and after the Civil
War in America. Defendants acknowledge that slavery marked a
deplorable period in our Nation's history. However, they assert
that Plaintiffs' claims, which arise from that period, cannot be
heard in 2005 in a court of law. II. HISTORICAL OVERVIEW OF SLAVERY IN AMERICA
In essence, Plaintiffs' Complaint is a claim for reparations
rooted in the historic injustices and the immorality of the
institution of human chattel slavery in the United States. To
elucidate the nature of this institution, the court undertakes an
analysis, necessarily brief, of the historical events surrounding
slavery, including the monumental event that ended the
institution of slavery in the United States, the Civil War. The
court also undertakes a brief analysis of the present day slave
reparations movement, in order to illuminate the larger political
context into which this case falls.
A. A Definition of Slavery
In January of 1865, General William Tecumseh Sherman of the
Union forces, along with Secretary of War Edwin Stanton, met with
former slaves. Ira Berlin, Generations of Captivity: A History
of African-American Slaves 2 (2003). The conversation focused on
two questions: from the point of view of the freed slave, what
was the nature of slavery, and what was the nature of freedom?
Id. Garrison Frazier, a sixty-seven year old former slave,
explained that "[s]lavery . . . is receiving by the irresistible
power the work of another man, and not by his consent." Id.
Freedom, Frazier indicated, "is taking us from the yoke of
bondage, and placing us where we could reap the fruits of our own
labor, take care of ourselves and assist the Government in
maintaining our freedom." Id. Frazier's definition reminds us
of the essential unfairness of slavery: the slaveowner takes, by
sheer violence and force, the slave's freedom and labor in order
to place himself at the top of a society's economic hierarchy.
Id. at 3. B. A Brief History of Slavery in the New World
While slavery seems to have been a part of human history since
the "dawn of civilization," African slave trafficking in the New
World began in the year 1502. Robert William Fogel, Without
Consent or Contract: The Rise and Fall of American Slavery 17-18
(1991). Europeans were historically drawn to Africa for two
reasons: gold and slaves. Edward Reynolds, Stand the Storm, A
History of the Atlantic Slave Trade 28 (1985). Those who
journeyed to Africa seeking slaves for the New World sometimes
simply kidnapped individuals who appeared before them by
happenstance. Herbert S. Klein, The Atlantic Slave Trade 103
(1999). However, historical evidence indicates that a great deal
(perhaps even the majority) of the slave trade was made possible
by African leaders who sold African slaves to European slave
traders. Id.; see also Reynolds, supra at 33-46
(providing a detailed explanation of the African slave market,
and the economic mechanisms used to facilitate the sale of slaves
from local African chiefs to slave traders). Local African
leaders acquired these slaves in several different ways: captives
were taken in local wars or raids, those imprisoned for crimes or
indebtedness were often forced into slavery, and large states
would exact slaves as "tribute" from smaller tribes under their
control. See Klein, supra at 117.
Upon their sale to slave traders, slaves were shipped to the
New World in what became known as the "Middle Passage." Slaves'
heads were shaved, their bodies were branded and stripped naked,
and their ankles were shackled. See Reynolds, supra at 47.
They were then led into the holds of slave ships, where they were
laid down alongside each other for the journey to the New World.
Id. at 48. The prevalence of disease, lack of sufficient food
and water, and constant confinement took its toll, with up to one-quarter of the
slaves on any given ship dying during the "Middle Passage." Id.
African slaves in the New World were initially sold into small
sugar production operations in Brazil, Mexico, Peru, Cuba, Haiti,
Jamaica, the British West Indies, and Dutch Guyana. Id. at
20-21. Other African slaves were set to work producing such crops
as cocoa, coffee, hemp, tobacco, and rice. Id. at 21. By the
1680s, the small farm with its traditional methods of operation
had given way to more efficient means of production, and the
concept of the large "plantation" was born. Id. at 23.
Inefficient methods of farming had been "replaced by large gangs
of slaves, working in lock step, and moving methodically across
vast fields." Id. With this change came an increase in the size
of slave operations. By the early part of the 1800s, many
plantations in Jamaica and the West Indies contained up to two
hundred and fifty slaves. Id.
Slavery in North America began more slowly than slavery in
South America and the Caribbean. In 1680, there were 7,000 slaves
in the British North American colonies. Id. at 29. Slavery as
an economic institution in North America, however, rapidly gained
momentum over the next fifty years. By the 1730s, roughly 120,000
slaves had been brought to the colonies and forced to work in
such industries as farming, tobacco production, and domestic
service. Id. By the middle of the 1700s, the institution of
slavery in the United States began to concentrate in the Southern
colonies. It was in these colonies that plantations emerged,
ready to take advantage of the inexpensive labor slaves provided
in the production of such crops as tobacco, rice, sugar, and
cotton. Id. at 31. During the years 1780 to 1810, the rapid expansion of these
industries was accompanied by a significant increase in the
number of slaves imported from Africa. Id. at 32. The increase
in the importation of slaves, along with the natural increase in
the slave population, soon gave the United States a dubious
distinction. By 1825, the population of slaves in the
United States was roughly 1,750,000, making the United States the
"leading user of slave labor in the new world." Id. at 33.
Slavery had become the dominant economic force in the Southern
United States. Historians cite numerous factors for this
development, but it seems that two factors are the most
significant. First, slave labor was inexpensive compared to other
sources of labor. Id. at 34. Second, slave masters in the
Southern states were willing to expend an "enormous, almost
unconstrained degree of force . . . to transform ancient modes of
labor into a new industrial discipline." Id. This "new
industrial discipline" was based on a division of labor scheme,
enforced by brutality, and legally sanctioned.
C. Slavery and American Law
This violent and oppressive system was supported by the
United States legal system for a long period of time. Thus slavery was
historically more than simply a social and economic institution.
It was also an established legal institution.*fn1
instance, Article I, Section 9 of the United States Constitution
has been traditionally understood to limit Congress' power to
It is thought that this Article meant
that Congress was denied the power to regulate the "internal slave trade, leaving only importation from Africa to be
prohibited after 1808." Walter Berns, The Constitution and the
Migration of Slaves, 78 YALE L.J. 198 (1968). Also, in 1850,
Congress passed a statute supporting the rights of slaveowners to
capture escaped slaves. The Fugitive Slave Act provided that:
[W]hen a person held to service or labor in any State
or Territory of the United States, has heretofore or
shall hereafter escape into another State or
Territory of the United States, the person or persons
to whom such service or labor may be due . . . may
pursue and reclaim such fugitive person . . . [and
may] take and remove such fugitive person back to the
State or Territory whence he or she may have escaped
The Fugitive Slave Act, ch. 60, § 6, 9 Stat. 462 (1850). This Act
also provided for fines and/or imprisonment for those who aided
escaped slaves, and stipulated that both law enforcement
personnel and ordinary citizens were bound by law to aid in the
capture of escaped slaves. Id. Finally, in the infamous case of
Dred Scott v. Sandford, Scott, a slave, brought suit to gain
his freedom. 60 U.S. 393
(1856). The Supreme Court of the
United States held that since Scott was a "negro, whose ancestors were
imported into this country, and sold as slaves," he could not be
a citizen of the United States, and hence had no standing to
bring suit in a United States court. Id. at 403-04.
The immorality of the institution of slavery is obvious.
However, scholars have attempted to explain exactly what it is
about this institution that offends moral sensibilities. Two
moral indictments of the institution are significant. First,
"slavery permitted one group of people to exercise unrestrained
personal domination over another group of people." Fogel, supra
at 394. The slave was subject to abject cruelty, both physical and
psychological, by his or her masters in order for the master to
maintain domination. Id. In one sense, "[t]he extreme degree of
domination required by this system . . . is the essential crime."
Id. Second, the slave was denied the fruits of his or her
labor. Id. at 395. Slaves were forced to work at physically
grueling tasks for very long hours without pay, thus it was
impossible for the slave to improve his or her economic position
within society. Id. The slave simply had no resources or
"opportunity . . . to rise on the economic ladder by acquiring
land, labor skills, and other forms of capital." Id.
E. Slavery as a Cause of the Civil War
Historians have long debated whether slavery was the single
driving force behind the regional tensions in the United States
that eventually led to the Civil War. "Although some scholars
have held that slavery was the cause [of the Civil War], others
have developed complex analyses that draw distinctions between
immediate and ultimate causes and that explore a variety of ways
other than war that could have settled or at least contained the
issue of slavery." Id. at 411. This much, however, is clear: by
1861, tensions between the North and the South had escalated to
the extent that maintaining peace would have required that the
Northern states allow the permanent "existence of an independent
confederacy dedicated to the promotion of slavery." Id. at 413.
In other words, by 1861, tensions between the North and the South
had increased to such a pitch that the only way slavery would be
abolished throughout the entire nation was through armed
A great deal of the tension between the North and the South had
to do with the Northern states' promulgation of Personal Liberty
Laws. "In his annual message to Congress of December 3, 1860, [President] James Buchanan warned that the
South `would be justified in revolutionary resistance to the
Government of the Union' if northern states did not repeal their
Personal Liberty Laws." Thomas D. Morris, Free Men All: The
Personal Liberty Laws of the North 1780-1861 202 (1974). These
laws were devised and implemented by many Northern states to make
it very difficult for slave owners to capture escaped slaves who
had taken up residence in those states.
The court does not claim objective knowledge of the ultimate
cause of the Civil War. Certainly, however, tensions marked by
the North's moral outrage at the institution of chattel slavery,
and the South's indignation at the North's promulgation of
Personal Liberty Laws, contributed significantly to the advent of
Fort Sumter, located in the Charleston harbor, South Carolina,
was one of just four Federal fortifications left in Confederate
territory in 1861. Shelby Foote, The Civil War, A Narrative:
Fort Sumter to Perryville 44 (Vintage Books 1986) (1958). The
government of South Carolina had made protests to Washington
regarding the presence of a Federal fortification within its
borders, but those protests were ignored. Id. Instead,
Washington decided to reinforce Fort Sumter with men and
supplies. Id. However, when local gunmen opened fire on a Union
steamer attempting to bring these reinforcements to Fort Sumter,
the steamer was forced to turn away. Id. By March of 1861, Fort
Sumter was surrounded by Confederate forces, and was cut off from
fresh supplies. Id. By April of that year, the Federal forces
inside Fort Sumter were in danger of starving to death. Id. at
48. The time had come for Washington to make a decision abandon Fort Sumter, or again attempt to resupply it. Washington
was aware that another attempt to bring supplies to Fort Sumter
might well provoke an attack on the fort itself. Id. at 47.
This time, however, the attack would not come from local gunmen,
but from Confederate forces. Id. Washington decided not to cave
in to Confederate pressures, and attempted to bring fresh
provisions and reinforcements to the fort. Id. at 47. On the
morning of April 12, 1861, with Union supply ships within sight
of Fort Sumter, the Confederacy fired the first shot of the Civil
War. Id. at 49.
The four-year Civil War was fought by means of a series of
pitched battles, each one seemingly more horrific than the last.
The first true battle of the war, the battle of Bull Run,
resulted in the deaths of roughly 2,700 Union soldiers and 2,000
Confederate soldiers. The Price in Blood, Casualties in the
Civil War, at http://www.civilwarhome.com/casualties.htm. Other
battles, at places like Gettysburg, Antietam, Fredericksburg,
Wilson's Creek, Spotslyvania, Cold Harbor, and Franklin took the
lives of tens of thousands of Union and Confederate soldiers.
Id. The final campaign of the war, fought in the vicinity of
Appomattox, Virginia, resulted in a combined 17,500 battle
Following the Appomattox campaign, on April 9, 1865, Union
General Ulysses S. Grant received Confederate General Robert E.
Lee at Appomattox Courthouse, where the two generals agreed upon
the terms of Lee's surrender. Shelby Foote, The Civil War, A
Narrative: Red River to Appomattox 945-51 (Vintage Books 1986)
(1974). Shortly thereafter, Grant rode out towards his
headquarters, where Union batteries were firing in celebration.
Id. at 950-51. Grant insisted the batteries stop firing,
worried that the noise might spark a skirmish between his troops
and the nearby, and still armed, Confederate soldiers. Id. at
951. There was, however, another more important reason Grant considered it "unfitting" for his troops
to be firing their weapons at that point: "`The war is over,' he
told his staff. `The rebels are our countrymen again.'" Id.
All in all, approximately 620,000 Americans died in the Civil
War; Union forces fighting to end slavery suffered 360,000 of
these deaths. James M. McPherson, Battle Cry of Freedom: The
Civil War Era 854 (Oxford University Press 1988). There were
178,975 African-American Union troops that fought in the Civil
War, and 36,000 of those troops died during the war. The Price
in Blood, Casualties in the Civil War, at
http://www.civilwarhome.com/casualties.htm. An analysis as brief
as this cannot do justice to the tremendous sacrifices made by
both Union and Confederate soldiers in this war. Since the Civil
War, America has been involved in a number of armed conflicts,
but, by some estimates, the fatalities America suffered in the
Civil War exceeds the total number of fatalities America has
suffered in all its other wars. Id. The Civil War, the war that
ended the institution of chattel slavery in the United States,
was truly America's bloodiest war.
G. The Abolishment of Slavery
On January 1, 1863, in the midst of the Civil War, President
Abraham Lincoln issued the Emancipation Proclamation. That
document reads in part: "I do order and declare that all persons
held as slaves within said designated States . . . are, and
henceforward shall be free. . . ." Abraham Lincoln, The
Emancipation Proclamation, Exec. Proclamation No. 17 (Jan. 1,
1863), reprinted in 12 Stat. 1268 (1863).
Following the war, Congress acted to formally abolish slavery
by proposing the Thirteenth Amendment to the United States
Constitution. That Amendment was ratified on December 6, 1865. Section 1 of that Amendment reads: "Neither
slavery nor involuntary servitude, except as punishment for crime
whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their
jurisdiction." U.S. Const. amend. XIII, § 1.
Also, the Fourteenth Amendment to the United States
Constitution was ratified on July 9, 1868. Section 1 of that
Amendment reads: "All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside."
U.S. Const. amend. XIV, § 1. In effect, the Fourteenth Amendment
overruled the Dred Scott decision, making freed slaves citizens
of the United States.
Following the Civil War, the South was bankrupt, and an
estimated four million African-Americans assumed the
responsibilities of freedom as nationalism emerged. These
lingering effects led to the Reconstruction era, a significant
period in our Nation's history, which addressed the numerous
issues raised by the abolition of slavery and the war fought to
achieve that end.
H. The Modern Slave Reparations Movement
Plaintiffs' Second Consolidated and Amended Complaint falls
within the broader context of a present and ongoing social and
political movement for slave reparations in America. In order to
properly place this suit within the context of that movement, the
court offers a brief analysis of recent efforts undertaken by
various groups to gain reparations for the historic injustices of
slavery. 1. A Definition of "Reparations"
A complete definition of the term "reparations" will answer, at
least, the following questions. What political, moral, or legal
justification is there for the assertion that descendants of
slaves are owed some sort of reparations? What are the arguments
against reparations? Assuming reparations are justified, what
form should these reparations take? Which specific individuals or
groups will pay these reparations? To which specific individuals
or groups will these reparations be paid?
In general, reparations advocates argue that reparations are
justified because America itself owes a debt to the descendants
of slaves. America owes this debt, advocates assert, simply
because the slaves themselves were never paid for their labor.
"[B]lack people worked long, hard, killing days, years, centuries
and they were never paid. . . . There is a debt here."
Randall Robinson, The Debt: What America Owes to Blacks 207
(2000). In other words, the basic moral principle of fairness,
and the fundamental legal principle that parties must repay their
debts, justifies reparations. "[B]elief in the fairness of
reparations requires at the intellectual level acceptance of the
principle that the victims of unjust enrichment should be
compensated. Under reparations, Blacks more readily may position
themselves as creditors seeking payment of an overdue debt,
rather than as racial supplicants seeking an undeserved
preference." Robert Westley, Many Billions Gone: Is It Time to
Reconsider the Case for Black Reparations?, 40 B.C.L. REV. 429,
Other advocates argue that reparations are justified as a way
to "repair a country by creating a sense of mutual, interracial
trust, respect, and shared destiny." Note, Bridging the Color Line: The Power of African-American Reparations to
Redirect America's Future, 115 HARV. L. REV. 1689, 1689-90
(2002) (hereinafter, "Note"). Still others argue that reparations
for descendants of slaves are justified because other groups that
have suffered historical harms have been able to obtain
reparations. See Alfred L. Brophy, Some Conceptual and Legal
Problems in Reparations for Slavery, 58 N.Y.U. ANN. SURV. AM. L.
497, 499 (2003) (hereinafter "Conceptual and Legal Problems")
(noting that "Native Americans, Holocaust victims, [and] Japanese
Americans interned during World War II" have obtained
However, opponents of slave reparations identify a number of
reasons, they assert, that reparations are unjust or unwise.
Alfred L. Brophy, The Cultural War over Reparations for
Slavery, 53 DEPAUL L. REV. 1181, 1201-02 (2004) (hereinafter
"Cultural War"); see also David Horowitz, Uncivil Wars:
The Controversy over Reparations for Slavery 12-16 (2002)
(identifying ten separate arguments against reparations). The
court will briefly summarize what seem to be the most cogent of
these arguments. Some assert that there is no genuine moral or
legal liability on the part of those who are currently asked to
pay the reparations. Cultural War, supra, at 1202-06. This
argument focuses on the fundamental notion that "one should be
liable only for the harms one causes. . . ." Id. at 1202. Since
today's Americans do not hold slaves, the argument goes, today's
Americans are not morally or legally liable for the evils of
slavery. Id. Others argue that the reparations asked for have,
in fact, already been paid.
Since the passage of the Civil Rights Act and the
advent of the Great Society in 1965, trillions of
dollars in transfer payments have been made to
African-Americans in the form of welfare benefits and
racial preferences (in contracts, job placements and
educational admissions). . . . It is said that
reparations are necessary to achieve a healing
between African-Americans and other Americans. If trillion-dollar restitutions and a wholesale
rewriting of American law (in order to accommodate
racial preferences) is not enough to achieve a
"healing," what is?
Horowitz, supra, at 14; see also CHICAGO, ILL., ORDINANCE
2-92-420 et seq. (providing that "Minority-owned business[es],"
including those businesses owned by African-Americans, are to
receive at least twenty-five percent of the dollar value of any
contract, purchase order, or agreement awarded by the City of
Chicago). Some also argue that the Civil War itself was payment,
in blood and human lives, for slavery. Cultural War, supra,
at 1208; see also Horowitz, supra, at 15 ("If not for the
sacrifices of white soldiers and a white American president who
gave his life to sign the Emancipation Proclamation, blacks in
America would still be slaves"). Finally, a common argument made
against reparations is that reparations talk is divisive, and
continues to enmesh African-Americans in a culture of victimhood.
Cultural War, supra, at 1209-10 ("[talk of reparations] makes
blacks think that whites as a group are their oppressors; it
makes whites who have no responsibility for the sins of the past
feel like oppressors and plays on feelings of guilt").
Advocates of reparations differ in their assessments of exactly
what form reparations ought to take. Some reparations advocates
assert that reparations should start with a formal apology from
America, as well as the establishment of "truth commissions" to
investigate the complicity of various groups or organizations in
slavery. Cultural War, supra, at 1185-1189; see also
CHICAGO, ILL., ORDINANCE 2-92-585 (requiring parties entering
into contracts with the city to search company records, and
provide "full and accurate disclosure to the public about any
slavery policies sold by any companies, or profits from slavery
by other industries (or their predecessors) who are doing
business with the city"); S. Res. 39, 109th Cong. (2005)
(formally apologizing for the Senate's failure to enact anti-lynching
legislation, and expressing sympathy to the descendants of
victims of lynching). Apologies, "truth commissions," and local
ordinances requiring companies to disclose ties to slavery, are
thought by some to be a first step along the road to full
reparations. "By preparing people to understand the nature of the
harm and why reparations are needed, they are a way of making the
claim before the public." Cultural War, supra, at 1188.
Most commonly, however, the term "reparations" simply means
some sort of financial compensation for descendants of slaves.
Some reparations advocates have proposed that reparations take
the form of a "trust . . . established for the benefit of all
Black Americans." Westley, supra, at 470; see also
Robinson, supra, at 244-45. This trust "should be financed by
funds drawn annually from the general revenue of the
United States," and the funds would "be expendable on any project or
pursuit aimed at the educational and economic empowerment" of
African-Americans. Westley, supra, at 470. Specifically,
advocates of reparations assert that trust funds should be used
to finance the creation of special schools for black children
found to be "at risk in unhealthy family and neighborhood
environments." Robinson, supra, at 244-45. These funds could
also be used to finance the work of black political and advocacy
groups. Id. at 245-46. Other reparations advocates propose that
reparations take "the form of subsidies to black-owned
businesses, investment in education programs and scholarships for
black youths, training programs for black workers, affirmative
action programs, resources for community-based organizations in
predominantly black communities, and development and
implementation of programs designed to educate the country about
the legacy of slavery." Note, supra, at 1690. The reparations movement has thus moved towards the notion that
reparations should be directed towards certain groups of people,
rather than specific individuals. "Pro-reparation positions more
readily see harm to entire groups and want to repair that
economic and psychological harm." Conceptual and Legal
Problems, supra, at 509; see also Robinson, supra, at
244-46 (advocating group reparations). The group entitled to
receive reparations would obviously consist of descendants of
slaves, and determining exactly who is and is not a member of
this group could be done in a number of different ways. See
Kevin Hopkins, Forgive U.S. Our Debts? Righting the Wrongs of
Slavery, 89 GEO. L.J. 2531, 2542 (2001) (proposing that
genealogical research, blood testing, or genetic mapping could be
used to determine whether one is a legitimate descendant of
However, there may well be no perfect method of determining
exactly who is a descendant of a slave, and thus a member of the
group entitled to receive reparations. See id. at 2542-2547.
Genealogical research "often fails to provide significant
information about a person's ancestry." Id. at 2543. The blood,
or "one-drop," test (whereby anyone with any trace of African
ancestry is deemed part of the group entitled to receive
reparations) "fails to differentiate between descendants of U.S.
slaves and those of other nationalities with African
heritage. . . ." Id. at 2544. Genetic mapping, or DNA testing,
is more promising than the above two methods, but "alone is
insufficient to provide a decisive link to a homeland. . . ."
Id. at 2547.
The question of who ought to pay the reparations is also
complex. The value of slaves' unpaid labor, reparations advocates
argue, was scattered amongst numerous entities: "plantation
owners, northern entrepreneurs, state treasuries, the
United States government." Robinson, supra, at 207. In the case presently before the court, the Plaintiffs
have chosen to bring suit against private entities, the
corporations who allegedly held slaves, and their successors in
interest. For example, the first named Defendant is FleetBoston
Corporation, which Plaintiffs allege is a successor in interest
to Providence Bank, which allegedly financed and profited from
the slave trade. SCAC, ¶¶ 116-126. Many reparations advocates,
however, focus their attention on the United States government as
the proper party to pay reparations. See Note, supra, at 1700
("Reparations are not intended to hold individual Americans
living today morally responsible for the acts of their
forefathers, but rather to insist that the country apologize for
its wrongful acts and take the necessary steps to bridge the
racial divide and to alleviate the economic and social
disparities that resulted from those acts."); see also
Hopkins, supra, at 2551-52 (advocating that the United States
government pay these reparations).
The following general definition of slave "reparations" thus
emerges. "[R]eparations mean truth commissions that document the
history of racial crimes and the current liability for those
crimes, apologies that acknowledge liability, and payments to
settle the account." Cultural War, supra, at 1190. These
payments may be made in the form of a trust, with the descendants
of slaves named as trust beneficiaries, or other forms of
subsidies given to the descendants, and could be made by private
entities who have allegedly profited from slavery (as the
plaintiffs in the instant suit urge). The reparations movement
more commonly insists, however, that the United States government
should make these payments. Reparations are justified, advocates
argue, on several grounds, including that of an alleged moral and
legal debt owed to descendants of slaves, and the historical
precedents of reparations for the victims of other historical
injustices. However, there are a number of cogent arguments
against reparations, including the arguments that present day Americans are not morally or legally liable for
historical injustices, that the debt to African-Americans has
already been paid, and that reparations talk is divisive,
immersing African-Americans in a culture of victimhood.
2. Previous Attempts at Slave Reparations
Reparations advocates identify five different time periods
during which reparations for slavery were seriously discussed in
one form or another. See Vincene Verdun, If the Shoe Fits,
Wear It: An Analysis of Reparations to African Americans, 67
TUL. L. REV. 597, 600 (1993). First, during and immediately after
the Civil War, both Congress and President Lincoln attempted to
confiscate property from former slaveowners, and to redistribute
that land to former slaves. Id. at 600-01. These attempts
ultimately failed in 1865, when President Johnson ordered that
lands be returned to their "pre-Civil War owners." Id. at 602.
The second period of attempts at slave reparations, occurring
near the turn of the century, included attempts to establish
pension funds for former slaves. Id. at 602-03. The third
attempt at reparations, occurring during World War II, was not a
proposal to pay African-Americans a sum of money; the proposal
was rather to "provid[e] for the migration and colonization of
negroes to newly acquired territories." Id. at 603. The fourth
period of attempts at reparations coincided with the civil rights
movement of the 1960's. Id. Various black activists such as
James Forman, Audley Moore, and Dr. Martin Luther King, Jr.,
demanded, or in some cases, hinted at, slave reparations for
African-Americans. Id. at 603-05. For example, in his
celebrated "I Have a Dream" speech, Dr. King asserted that
"America has given the Negro people a bad check, which has come
back marked `insufficient funds.'" Id. at 604. Finally, the fifth, and current period of attempts at slave
reparations began with the Civil Liberties Act of 1988. Id. at
605-06. This Act provided $20,000, and a formal apology from the
United States government to Japanese-Americans who were interned
during World War II. Pub.L. No. 100-383, 102 Stat. 903 (1988);
see also Korematsu v. United States, 323 U.S. 214
(upholding the constitutionality of military and executive orders
issued during World War II which excluded individuals of Japanese
descent from the West Coast, and provided for the detention of
those individuals in "assembly or relocation centers"). Seizing
on what appeared to be Congress' willingness to right the wrongs
of history, reparations activists began their efforts anew.
Numerous grassroots organizations formed to advocate slave
reparations. Verdun, supra, at 606 nn. 26-27. In 1989, U.S.
Representative John Conyers introduced a bill that would have
established a commission to study the effects of slavery on
present day African-Americans, and to study whether reparations
would be appropriate. H.R. 3745, 101st Cong. (1989). The preamble
to Conyers' proposed legislation stated that its intent was
to acknowledge the fundamental injustice, cruelty,
brutality, and inhumanity of slavery in the
United States and the 13 American colonies between 1619 and
1865 and to establish a commission to examine the
institution of slavery, subsequent de jure and de
facto racial and economic discrimination against
African Americans, and the impact of these forces on
living African Americans, [and] to make
recommendations to the Congress on appropriate
remedies, and for other purposes.
Id. Conyers has introduced similar legislation to each Congress
since 1989, but none of these bills has made it out of committee.
See, e.g., H.R. 40, 108th Cong. (2003), H.R. 40, 107th Cong.
3. The Legislature as the Proper Forum to Achieve Slave
Reparations Despite Representative Conyers' lack of success before
Congress, some reparations activists today still assert that the
legislature, rather than the courts, is the best forum in which
to introduce their claims. See, Westley, supra, at 436 ("It
is Congress, and perhaps the legislatures of the former slave
states, that must be persuaded to enact reparations"); Note,
supra, at 1704 ("There are concrete benefits of working in the
legislative branch rather than the judicial branch"). Activists
acknowledge that there are significant problems involved with
bringing the issue of reparations for slavery before a court of
The specific problem with bringing this issue before a court is
that courts are equipped for, and charged with the responsibility
of, "dealing with claims by well-identified victims against
well-identified wrongdoers. . . ." See Conceptual and Legal
Problems, supra, at 502. Claims asserting harms against groups
of long dead victims, perpetrated by groups of long dead
wrongdoers, are particularly difficult to bring in modern
American courts of law. "First, the victims are making claims
against people who are not themselves wrongdoers. Furthermore,
that defendant class may not have any current benefit from the
harm. . . . Often the perpetrators cannot be identified with
specificity or are no longer alive." Id. at 503. For these
reasons, plaintiffs in reparations suits will inevitably face the
conceptual problems of standing and statutes of limitations.
Westley, supra, at 435. However, reparations advocates who
bring their claims before legislatures face no such problems.
"[L]egislatures may hold hearings, make findings, and pass
resolutions or laws on any matter affecting the public interest
and within the scope of constitutional power. Substantively,
legislatures provide a friendlier forum than courts for racial
remedies." Id. In addition to reparations offered to Japanese individuals
interred during World War II, at least one state legislature has
passed a bill authorizing reparations for past racial injustices.
See C. Jeanne Bassett, House Bill 591: Florida Compensates
Rosewood Victims and Their Families for a Seventy-One-Year-Old
Injury, 22 FLA. ST. U.L. REV. 503 (1994). In January 1923, the
small town of Rosewood, Florida, inhabited entirely by
African-Americans, was burned to the ground by a group of whites
after a white woman claimed she had been raped by an
African-American man. Id. at 505-07. In addition, at least
eight African-Americans were murdered. Id.; see also Martha
Minow, Not Only for Myself: Identity, Politics, and Law, 75 OR.
L. REV. 647, 679 (1996). In 1994, Florida passed House Bill 591,
which authorized compensation for the victims of this massacre,
and their direct descendants. Bassett, supra, at 517-18. The
compensation included up to $150,000 for each survivor, and
college scholarships for their descendants. Id.
Legislatures, both federal and state, are thus sometimes
inclined to award compensation to victims of historical
injustices. See Pub.L. No. 100-383, 102 Stat. 903 (1988)
(awarding compensation to Japanese individuals interred during
World War II); see also Bassett, supra, (describing how the
Florida legislature awarded compensation to victims and
descendants of victims of the 1923 Rosewood, Florida massacre).
Courts of law, however, are constrained by judicial doctrine and
precedent, including concepts of standing, statutes of
limitations, and the political question doctrine. Legislatures,
both state and federal, face no such conceptual and doctrinal
constraints. For that reason, advocates of slave reparations may
resolve to bring their concerns and demands to the legislative
and executive branches of the government, rather than the
adjudicative and adversarial judicial branch. III. OVERVIEW OF THE PROCEEDINGS
Beginning in 2002, a number of lawsuits were filed by
descendants of slaves seeking reparations from private
corporations that were alleged to have unjustly profited from the
institution of slavery. On October 25, 2002, the Judicial Panel
on Multidistrict Litigation transferred these actions to this
court for coordinated or consolidated pretrial proceedings
pursuant to 28 U.S.C. § 1407. See In re African-American Slave
Descendants Litigation, No. 1491, 231 F. Supp. 2d 1357 (Jud.
Pan. Mult. Lit., Oct. 25, 2002). This litigation then consisted
of nine individual lawsuits. As directed by the court, the
individual Plaintiffs filed a consolidated complaint, which, upon
later review, the court dismissed without prejudice. The court
held that the Plaintiffs had failed to state a cause of action,
had no standing to bring the suit, and that the suit was barred
by the political question doctrine and statutes of limitations.
See In re African-American Slave Descendants Litigation, No.
1491, 304 F. Supp. 2d 1027 (N.D. Ill. 2004). The court then
granted Plaintiffs leave to file a second amended complaint.
Plaintiffs have since filed their Second Consolidated and Amended
Complaint, which also consists of nine individual suits. See
SCAC.*fn3 The Plaintiffs in the SCAC include the following: Deadria Farmer-Paellmann,*fn4 Mary Lacey
Madison,*fn5 Andre Carrington,*fn6 John Bankhead, as
administrator of the Estate of Edlee Bankhead,*fn7 Richard
Barber, Sr.,*fn8 Hannah Hurdle-Toomey, as administrator of
the Estate of Andrew Jackson Hurdle,*fn9 Marcelle Porter, as
administrator of the Estate of Hettie Pierce,*fn10 Julie Mae
Wyatt-Kervin,*fn11 the Estate of Emma Marie Clark,*fn12
Ina Bell Daniels Hurdle McGee,*fn13 Cain Wall Sr., and seven
other individuals who assert they were formerly
enslaved,*fn14 and Antoinette Harrell Miller.*fn15
These named Plaintiffs (hereinafter collectively referred to as
"Plaintiffs"), on behalf of themselves and the classes they seek
to represent,*fn16 seek reparations on behalf of all
"formerly enslaved Africans and their descendants," and all living "former enslaved African-Americans
and their descendants. . . ." See SCAC, ¶ 48. Specifically,
Plaintiffs seek an accounting, disgorgement of profits, the
creation of an "independent historical commission" to study
Defendants' actions, a constructive trust, restitution, and
compensatory and punitive damages arising out of the named
Defendants' alleged past and continued wrongful conduct relating
to the institution of slavery. See id. ¶ 3.
The named Defendants (hereinafter collectively referred to as
"Defendants") are seventeen present-day companies whose
predecessors are alleged to have been unjustly enriched through
profits earned either directly or indirectly from the
Trans-Atlantic Slave Trade and slavery between 1619 and 1865, as
well as post-Emancipation slavery.
Defendants include the following companies: FleetBoston
Financial Corporation, CSX Corporation, Aetna Inc., Brown
Brothers Harriman & Company, New York Life Insurance Company,
Norfolk Southern Corporation, Lehman Brothers Corporation,
Lloyd's of London, Union Pacific Railroad, JP Morgan Chase, R.J.
Reynolds Tobacco Company, Brown and Williamson, Liggett Group
Inc., Canadian National Railway, Southern Mutual Insurance
Company, American International Group ("AIG"), and Loews
Plaintiffs allege that FleetBoston, through its predecessor
bank, made loans to slave traders and also collected custom
duties and fees on ships engaged in the slave trade. See id.
¶¶ 125-26. Plaintiffs further allege that "FleetBoston engaged in
a self-concealed business enterprise so that the Plaintiffs and
others similarly situated would not be aware of the existence of
this enterprise," and, in more recent times, "made various
misleading statements to the Press from March 2000 to February 2002, attempting to disassociate its
predecessor company from its current company." Id. ¶ 128.
Plaintiffs allege that CSX "is a successor-in-interest to
numerous predecessor railroad lines that were constructed or run,
at least in part, by slave labor." Id. ¶ 129. Plaintiffs
further allege that "CSX engaged in a self-concealed business
enterprise as the plaintiffs and others similarly situated would
not be aware of the existence of this enterprise," and, in more
recent times, "withheld information or made a misleading
statement to the Press regarding their participation in and
profiting from slavery." Id. ¶¶ 131-33.
Plaintiffs allege that "Aetna's predecessor in interest,
provided the instrumentality of slavery by underwriting insurance
policies for slave owners against the loss of their African
slaves. . . ." Id. ¶ 136. Plaintiffs further allege that "Aetna
engaged in a self-concealed business enterprise as the plaintiff
class and/or plaintiff ancestors would not be aware of the
existence of this enterprise. . . ." and, in more recent times,
"withheld information or made a misleading statement regarding
their participation in and profiting from slavery." Id. ¶¶
Plaintiffs allege that Brown Brothers Harriman "is the
successor corporation to Brown Brothers & Co.," which "loaned
millions directly to planters, merchants and cotton brokers
throughout the South." Id. ¶¶ 145-46. Plaintiffs also allege
that "Louisiana court records dating back to the 1840's . . .
reveal the firm's ownership of at least two cotton plantations
totaling 4,614 acres and the plantations' 346 slaves. . . ."
Id. ¶ 148. Plaintiffs further allege that "Brown Brothers
Harriman engaged in a self-concealed business enterprise as the
plaintiff class and/or plaintiff ancestors would not be aware of
the existence of this enterprise. . . ." and, in more recent
times, "withheld information or made a misleading statement based
on press reports in an attempt to disassociate itself from its
predecessor's business." Id. ¶¶ 151-52.
Plaintiffs allege that "New York Life's
predecessor-in-interest, Nautilus Insurance, earned premiums from
its sale of life insurance to slave owners." Id. ¶ 155.
Plaintiffs further allege that "New York Life engaged in a self-concealed business
enterprise as the plaintiff class and/or plaintiff ancestors
would not be aware of the existence of this enterprise. . . ."
and, in more recent times, "withheld information or made
misleading statements regarding their participation in and
profiting from slavery." Id. ¶¶ 159, 162.
Plaintiffs allege that Norfolk Southern "is a
successor-in-interest to numerous railroad lines that were
constructed or run, in part, by slave labor." Id. ¶ 163.
Plaintiffs further allege that Norfolk "participated in the
institution of slavery in that it derived the benefits of unpaid
slave labor and it provided financial supports to slave owners
and slave traders." Id. ¶ 165.
Plaintiffs allege that the founder of Lehman Brothers, Henry
Lehman, and his brothers "grew rich as middlemen in the
slave-grown cotton trade." Id. ¶ 168. Plaintiffs further allege
that Lehman Brothers owned slaves. Id. ¶ 171.
Plaintiffs allege that Lloyd's of London "insured ships
utilized for the Trans-Atlantic slave trade." Id. ¶ 173.
Plaintiffs further allege that "Lloyd's engaged in a
self-concealed business enterprise as the plaintiff class and/or
plaintiffs' ancestors would not be aware of the existence of this
enterprise. . . ." Id. ¶ 174.
Plaintiffs allege that Union Pacific "is a
successor-in-interest to numerous predecessor railroad lines that
were constructed or run in part by slave labor." Id. ¶ 177.
Plaintiffs further allege that "Union Pacific engaged in a
self-concealed business enterprise as the plaintiff class and/or
plaintiffs' ancestors would not be aware of the existence of this
enterprise. . . ." and, in more recent times, "withheld
information or made a misleading statement regarding their
participation in profiting from slavery." Id. ¶¶ 178-79. Plaintiffs allege that "two of [the] predecessor banks that
merged to become J.P. Morgan Chase were behind a consortium to
raise money to insure slavery." Id. ¶ 181. Plaintiffs further
allege that "J.P. Morgan Chase engaged in a self-concealed
business enterprise as the plaintiff class and/or plaintiffs'
ancestors would not be aware of the existence of this
enterprise," and, in more recent times, "withheld information or
made a misleading statement regarding their participation in and
profiting from slavery." Id. ¶ 182.
Plaintiffs allege that R.J. Reynolds Tobacco Company, Brown &
Williamson, Liggett Group, and Loews Corporation (parent company
of Lorillard Tobacco Company) were all once part of the American
Tobacco Company. Id. ¶ 197. As parts of this larger enterprise,
Plaintiffs assert, these Defendants are "all beneficiar[ies] of
assets acquired through the forced and uncompensated labors of
enslaved African-Americans." Id. ¶ 185; see also id. ¶¶
201, 204, and 210.
Plaintiffs allege that Canadian National Railway "is the
successor-in-interest to seven predecessor railroad lines, that
were constructed and/or run in part by slave labor." Id. ¶ 213.
Plaintiffs further allege that "Canadian National engaged in a
self-concealed business enterprise as the plaintiff class and/or
plaintiff ancestors would not be aware of the existence of this
enterprise. . . ." Id. ¶ 215.
Plaintiffs allege that Southern Mutual Insurance "issued
policies on the lives of slaves in Louisiana." Id. ¶ 219.
Plaintiff further alleges that Southern Mutual "aided and abetted
those who engaged in the maintenance of slavery through the
intentional infliction of emotional distress." Id. ¶ 218. Plaintiffs allege that AIG's predecessors "provided
instrumentalities of slavery by selling insurance policy [sic] to
cover the lives of enslaved Africans with slave owners as
beneficiaries." Id. ¶ 221. Plaintiffs further allege that AIG's
predecessors "aided and abetted those who engaged in the
maintenance of slavery." Id. ¶ 223.
As evidenced by Plaintiffs' allegations, and as the court shall
further discuss, their SCAC is devoid of any allegations that
connect the specifically named Defendants or their ...