How A New and Potentially Successful Lawsuit Relating to a 1921 Race Riot In Tulsa May Change the Debate Over Reparations for African-Americans

On February 24, a lawsuit was filed in federal court in Tulsa, Oklahoma that may reshape the direction of the debate over reparations for African-Americans.

The Tulsa lawsuit is important for two reasons. First, its ambition is to remedy one of the ugliest civil rights violations of the 20^th Century. The plaintiffs are demanding monetary compensation (compensatory as well as punitive). They also seek injunctive relief, including the establishment of an educational fund to ensure that what happened in Tulsa will be taught and not forgotten.

Second, it may serve as a model of a new - and more legally successful - way to approach the question of reparations for slavery. So far, certain precedents and doctrines have hobbled lawsuits attempting to get either government or private defendants to compensate African-Americans for the injuries inflicted both during, and in the aftermath, of slavery. The new Tulsa lawsuit, however, may change that.

The Tulsa Riot and Its Perpetrators

There is no doubt events happened essentially as plaintiffs describe them in their complaint: On the day of the riot, the African-American residents of Greenwood, a large and bustling neighborhood of Tulsa, were terrorized by hundreds of armed white men.

The mob used machine guns, airplanes, trucks, and fire - as well as clubs and revolvers - to round up the men of the community, place them under "protective detention" in internment halls, and burn down the neighborhood. Many of the most violent acts were done by the Tulsa police; by men deputized by the Tulsa police; by National Guardsmen ordered into Tulsa by the Governor; or by men acting with the explicit or implicit permission of city and state officials.

In the end, up to 300 African-Americans were killed, hundreds more were injured, and eight to ten thousand people were left homeless by the destruction of 42 city blocks. Many of the plaintiffs in the lawsuit were children when the violations occurred. Accordingly, the complaint names only four who suffered physically injury. The rest are alleging that they lost family members; were forcibly removed from their homes; were illegally interned; were terrorized; or lost property.

The "riot" as historians have come to call it, calls to mind the ethnic cleansing inflicted by Serbians on Muslims in Bosnia. As was the case there, the men in the mob that rampaged through Greenwood were loosely associated with the government.

One Reason to Sue Now: A Wrong That Remains Unremedied

Why is the suit being brought now, eighty-two years after the fact? One answer comes from sheer injustice. The riot is a specific, massive civil rights violation that was denied and therefore not remedied when it occurred. Then, when it was finally admitted years later, it still remained unremedied.

Then, in 1997 - over seventy-five years after the riot - as a result of active pressure by community leaders and scholars, the State of Oklahoma finally created a Commission to study the events of 1921.

In 2001, the Commission delivered its report. Its conclusions agree, in essence, with the factual allegations in the lawsuit. In addition, the Oklahoma legislature passed the "1921 Riot Reconciliation Act of 2001," which was signed by the Governor. The Act says that the legislature "freely acknowledges its moral responsibility" to oppose racial subjugation, and creates an educational fund and a fund for a memorial.

The Governor at that time stated that he supported "direct payments" to the living survivors of the attacks. But the state has not yet authorized any reparations.

Another Reason to Sue Now: Aiding the General Movement For Reparations

There is also another reason that the suit may be being brought now: It is a good "test case" for the African-American reparations movement.

Beginning in the 1940's, Thurgood Marshall and the NAACP developed a strategy for litigating civil rights claims in the courts that was based on picking "easy" cases with an eye to eventually changing the legal environment so that "hard" cases could be won. For instance, the early public transportation and higher education cases were brought with an eye to one day attacking segregation in public schools. It is possible that the lawyers who are bringing the Tulsa case have the same kind of strategy in mind.

There is good reason to think, as I have noted in a prior column, that another of the reparations cases, recently filed in Brooklyn, will be a much harder case than the Tulsa case based on the 1921 reasons.

The Brooklyn suit is a class action suit against various corporations who allegedly profited from African-American slavery. (Ever since the Supreme Court's decision in Cato v. United States, it has seemed that the U.S. government is immune from suit for slavery; thus, the suit does not name federal government co-defendants, but only private corporations.)

The main problem with the Brooklyn suit derives from how long ago the relevant conduct occurred. Because of this fact, the relevant statutes of limitations probably also expired long ago. In addition, none of the potential plaintiffs were directly harmed by the corporate defendants; rather, they are descendants of those who were. Finally, the suit inherently raises such difficult questions as, how much of a given corporation's current wealth is the result of slave labor 150 years ago?

Moreover, the plaintiffs, though elderly, are still alive. The losses they allege they suffered--such as burned homes and property--are direct and easy to identify.

Meanwhile, the sovereign immunity issue that stopped the Brooklyn suit's plaintiffs from naming federal government co-defendants will not stop the Tulsa plaintiffs. Municipalities like Tulsa, and state governments like Oklahoma's, can be sued under the relevant federal civil rights statutes--Section 1981, Section 1983, and Section 1985.

What about the statutes of limitations? Again, the Tulsa plaintiffs are on stronger ground than their Brooklyn counterparts (though perhaps still on weak ground). In the Brooklyn suit, the corporate defendants likely feel quite confident that the suit will eventually be dismissed on statute of limitations grounds, and thus may not feel much incentive to settle early, if at all.

In the Tulsa case, however, the plaintiffs' statute of limitations argument is strong. Though the relevant statute of limitations is only two years long, the Tulsa complaint argues that two years is enough - for it was only after the publication of the 2001 Commission report, the complaint alleges, that the plaintiffs could sue.

Why? First, the plaintiffs contend that the efforts by the Commission brought to light information about the violation of the plaintiffs' civil rights that the plaintiffs themselves could not have been discovered through reasonable diligence.

Second, the plaintiffs contend that the report itself suggests that the Tulsan and Oklahoman officials previously had actively concealed information that would have allowed the plaintiffs to learn enough to have filed a suit.

Despite Problems, the Tulsa Suit Offers Strong Hope of a Settlement

Both of these statute of limitations arguments have their problems - given the amount of information that was publicly available before the Commission report. But there can be little question that they are, at least, stronger than the Brooklyn plaintiffs' arguments for extension of the statute of limitations (in legal parlance, "equitable tolling"). Also, a court will be much more likely to extend a statute of limitations to address a 1921 riot, than to address actions that occurred prior to, and during, the Civil War.

It is also important to remember that Oklahoma has already admitted culpability. That fact - as well as the fact that the Tulsa plaintiffs have at least reasonable arguments to extend the statute of limitations - may spur Oklahoma, Tulsa, or both, to settle early and for a large amount. Denying elderly people who suffered terrible wrongs money to which you have said they are entitled, is hardly a good public relations tactic.

If there is, indeed, a Tulsa settlement (or even a court victory), what larger effect will it have? Could it help the plaintiffs in the Brooklyn suit? Possibly.

Since Cato remains good law, a settlement won't put pressure on the federal government to settle, too. But a win in the Tulsa suit might put pressure on other states and municipalities who were involved in wrongs against African-Americans.

It might also hold out hope - hope that will affect settlement negotiations - that courts in Brooklyn and elsewhere will accept creative equitable tolling arguments, and extend statutes of limitations. (The Brooklyn plaintiffs, like the Tulsa plaintiffs, argue that they were at a huge information disadvantage until now - unable to gain access to corporate records, archives, and the like.)

It will be interesting to see how the Tulsa suit lawyers develop their case, and whether it will have a spillover effect onto cases like the Brooklyn class action. If it does, Thurgood Marshall may deserve a good part of the credit, for counseling that easier cases ought to be attacked before difficult ones are attempted.