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IN RE AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION

July 6, 2005.

IN RE AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION.


The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

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.

I. INTRODUCTION

  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. at 48-53.

  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 For instance, Article I, Section 9 of the United States Constitution has been traditionally understood to limit Congress' power to regulate slavery.*fn2 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 as aforesaid.
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.

  D. Slavery and Morality

  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 conflict.

  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 war.

  F. The Civil War

  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 deaths. Id.

  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, 436 (1998).

  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 reparations).

  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 slaves).

  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 (1944) (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. (2001).

  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 law.

  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

  A. Parties

  1. Plaintiffs

  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.

  2. Defendants

  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 Corporation.*fn17

  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. ¶¶ 142-43.

  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 ...


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