They owe us more than they could ever pay. . . . They stole us from our mothers and fathers and took away our names from us.
Every generation of African Americans has its reparations struggle. Collective memory of chattel slavery grows dimmer as the years since Emancipation pass. But the drumbeat for restitution—to amend the intergenerational devastation wrought by racialized human bondage—persists, sounding with renewed intensity in each decade, despite historical amnesia. By the end of the twentieth century, the double helix had become a part of this call for reparations.
The genetics zeitgeist is sweeping. Our DNA hopes are more boundless than we often fully apprehend or dare to admit. In 2004, geneticist Kittles, whose ambitions for ancestry testing have always included racial justice and social transformation, found his company’s techniques engaged in an effort to obtain slavery reparations. African Ancestry’s matrilineal and patrilineal DNA analyses were engaged as twenty-first-century tools that might offer new leverage in the long-waged battle over the repayment of a debt now four centuries overdue.
This novel reparations strategy was born out of a collaboration between Kittles’s African Ancestry company and an African American lawyer named Deadria Farmer-Paellmann. The two met as graduate students at George Washington University in the late 1990s. Kittles was pursuing a doctoral degree in molecular biology; Farmer-Paellmann was working toward a master’s degree in political management and lobbying. Soon to be known as the “Rosa Parks of the reparations litigation movement,” Farmer-Paellmann would conceive a legal plan for restitution for slave descendants that highlighted the connection between inheritance and genealogy and employed DNA to draw these links. The introduction of plaintiffs’ genetic-ancestry-testing results as evidence in Farmer-Paellmann v. FleetBoston was a strategy that became necessary as the case winded its way from lower to higher courts.
Yet this maneuver was also consistent with the growing utility of genetics across contemporary society—the social life of DNA. Indeed, the use of DNA evidence in this case had two prior, necessary touchstones: The first, discussed previously, was the use of genetics, at the end of the twentieth century, in an array of efforts to rectify past injury to social groups and communities. Forensic inquiries in post-junta Argentina, post-apartheid South Africa, and elsewhere married genetic technology and justice claims and were carried out under the banner of international human rights frameworks that would be adopted by reparations activists.
In the United States, there was also growing awareness of the successes of the Innocence Project, a nonprofit legal-advocacy organization established in 1992 that uses DNA evidence to liberate wrongfully convicted persons, including many African Americans. These high-profile exonerations played a role in alleviating blacks’ apprehension about genetic science. As Pat, the genealogist introduced in an earlier chapter, who had worked as an analyst in a crime lab, would say to me: “I’m not question[ing] about DNA. . . . Given my experiences, there is no reason to doubt the technology.” Pat articulated what many African Americans expressed to me about the promise of DNA to set black people free—literally and figuratively. Lending a heroic cast to genetics, the Innocence Project offered the double helix as a winding path toward justice and not merely an invidious “back door to eugenics.” But concerns about abuses of the new technology are warranted. Discriminatory law enforcement practices in the United States have yielded the largest and most disproportionately black and brown prison population the world has ever known. DNA databases have swelled as a result of a wider range of contact with police, who can collect DNA when making an arrest, sometimes before charging a person with a crime. Law enforcement can also conduct “familial searches” that target not only criminals but their family members. Such practices potentially threaten the civil liberties of innocent people.
Second, the sociopolitical backdrop against which the decoding of the human genome unfolded also played a role in the use of genetics in reparations politics. As we have seen, the Human Genome Project (HGP), completed in 2003, was a technological watershed that ushered in DNA’s eventful social life. The project carried mixed ideological messages about the simultaneous irrelevance and salience of race. The human genome comprised the DNA contributions of women and men of different backgrounds, suggesting that our humanity is fundamentally shared and, indeed, interchangeable. Yet, on the other hand, the analogous Human Genome Diversity Project (HGDP) was premised on the belief that there were genetically isolated and distinct racial and ethnic groups to which researchers should urgently attend. Although these distinct projects, the HGP and the HGDP, were not formally linked, they embodied two trains of thought about human difference that would find their confluence in debates about the significance of race after the genome was decoded.
Irrelevant or salient? Scholars across the sciences and social sciences continue to debate the issue. What is certain is that while race may be spoken of in the language of biology, it is fundamentally a political category. It is a way to sort human communities in such a way as to justify social inequality; this sorting is neither natural nor inevitable. What this post-genomic moment did accomplish was the foregrounding of genetics as a lexicon for racial politics. DNA analysis was perceived as a new language of social justice, as the moral authority of “inadequate and besieged civil rights discourses” waned. In a climate in which many wished to believe that racial inequality no longer existed, why not then try to use genetics to bolster justice claims?1
What began in the late 1990s in Buenos Aires and Johannesburg as forensic projects of identity recovery for the cause of human rights was, by the early 2000s, an endeavor that put genetic identification into the service of a campaign for racial justice, of which reparations for slavery was a facet. The slavery-reparations legal case was, among other things, an attempt to articulate the depths and persistence of racial inequality at a moment when it was said to be nonexistent. Prospects for slavery reparations have always been tenuous, but this was perhaps never so true as at a historical juncture when bold proclamations were being made about race being a non-factor in American life. New strategies were needed.
The 2002 class-action suit for reparations for slavery extended a centuries-long struggle. In the immediate antebellum period, the federal government acknowledged that a debt was owed to the newly emancipated blacks who had worked in bondage and without pay. “The debt”—to use reparations activist Randall Robinson’s succinct phrasing—begins to accrue with the arrival of the first enslaved Africans at Jamestown, Virginia, in the seventeenth century. A plan for reparations was put in place by the state in 1865. Today’s protracted struggle for slavery reparations was inaugurated with the callous breaching of this social contract. At the close of the Civil War, General William Sherman issued “Special Field Order No. 15,” a directive that set aside a large swath of land—confiscated by the federal government from Confederate soldiers—including portions of the southern states of Florida, Georgia, and South Carolina. This land was to be divided into forty-acre segments and redistributed to newly emancipated slaves, some of whom had fought in the Union army. By the summer of 1865 “some 40,000 freedmen had been settled on 400,000 acres of ‘Sherman land,’ ” and plans were in place to distribute another 450,000 acres of land as restitution. In addition to land, each formerly enslaved family was leased or loaned a mule. Accordingly, the refrain that emancipated men and women were promised reparations in the form of “forty acres and a mule” for the discounting of their humanity and their loss of wages would soon and for long after travel in African American communities.2
Within a few months, African Americans’ march toward recompense came to an abrupt end. In September 1865, following the assassination of President Abraham Lincoln, newly elevated president Andrew Jackson overrode Sherman’s order and commanded that the land allotted to freed blacks be returned to Confederate soldiers, who would be pardoned in exchange for pledging their allegiance to the United States. This White House decree, called Howard’s Circular 15, was drafted by and named for Freedmen’s Bureau commissioner Oliver Otis Howard, to whom would fall the task of seeing that this prejudicial policy reversal was carried out. Howard’s change of duties was a bitterly ironic development, because the Freedmen’s Bureau was now asked to implement the disenfranchisement of the very black Americans it had been created to aid and support.
African Americans challenged this breach of contract from the start. Historian Eric Foner recounts the rueful scene at a meeting in South Carolina where Howard was dispatched to explain the policy change to formerly enslaved men and women, who were recent recipients of forty-acre parcels of land:
When [Howard] rose to speak to more than 2,000 blacks gathered at a local church, “dissatisfaction and sorrow were manifested from every part of the assembly.” Finally, a “sweet-voiced negro woman” quieted the crowd by leading it in singing the spirituals “Nobody Knows the Trouble I Seen” and “Wandering in the Wilderness of Sorrow and Gloom.” When the freedmen fell silent, Howard begged them to “lay aside their bitter feelings, and to become reconciled to their old masters.” He was continually interrupted by members of the audience: “No, never,” “Can’t do it,” “Why . . . do you take away our lands?”3
As this account conveys, Howard did not only announce the end of the reparations plan, he also recommended social backsliding, encouraging freedmen and freedwomen to be “reconciled to their old masters.” This suggestion was quite the opposite of the racial reconciliation that was desperately needed in the wake of a fractious war in a nation built upon human captivity.
Adding insult to injury, Howard mandated that a committee of recently emancipated black men devise the process by which they would be divested of their land and these plots returned to Confederate soldiers. (In cases in which the transfer of land could not be negotiated, African Americans were violently evicted from the land the state allotted to them.) The black men asked to join this committee voiced the deep sense of betrayal felt by their communities in a formal complaint:
We were promised Homesteads by the government . . . if the government having concluded to befriend its late enemies and to neglect to observe the principles of common faith between its self and us its allies in the war you said was over, now takes away from them all right to the soil they stand upon save such as they can get by again working for your late and their all time enemies . . . we are left in a more unpleasant condition than our former. . . . You will see that this is not the condition of really freemen.4
The government’s abandonment of its reparations policy left African Americans in “a more unpleasant condition” of destitute poverty and subjugation to both those who enslaved them and to those with whom they fought in supposed solidarity. This betrayal did not go unchallenged. In subsequent decades, the outrage voiced here would gather intergenerational force, becoming a peculiar bequest passed down to descendants from ancestors. The African American reparations movement was born from this acrid cauldron of disloyalty and disappointment.
Since this time, attempts to compel the United States—a nation literally and figuratively formed through the economy of slavery—to pay its debt to African descendants have continued. The topic of this chapter, Farmer-Paellmann v. FleetBoston, a historic slavery-reparations lawsuit against multinational corporations, that in another first would engage genetic ancestry tests as evidence, is but a recent milestone of a much longer journey for racial reconciliation and economic restitution.5 Twenty-first-century activists see themselves engaged in a struggle to right wrongs dating back to the era of plantation slavery, but this politics now includes contemporary social challenges that stem from the history of racialized human bondage, with both past and present now viewed through a global prism, articulated through the language of international law and the discourse of human rights, and pursued through diverse strategies.
US history is punctuated with instances in which bondsmen and bondswomen and their descendants have endeavored to receive restitution for the forced, unpaid labor of their ancestors and the corollary damage of plantation slavery. These demands have taken many forms, including moral appeals, economic calculations, legislative efforts, and lawsuits. Despite advancing varied strategies toward achieving recompense, over the last 150 years, prospects for the payment of reparations have never been promising. Nevertheless, from the lobbying efforts of a late-nineteenth-century grassroots movement of ex-slaves to the use of DNA analysis by a group of slave-descendant litigants in the early twenty-first century, each campaign has advanced with dogged ingenuity in the face of a recalcitrant nation.
African Americans’ antebellum disappointment was soon channeled into organized efforts to seek compensation for the formerly enslaved. The multifaceted Ex-Slave Mutual Relief, Bounty and Pension Association led one such campaign. Established in 1894 in Nashville, Tennessee, by Isaiah Dickerson and Callie House, this chapter-based national organization had two central aims. The first was the practical task of offering emancipated blacks the social welfare support that the Freedmen’s Bureau no longer provided after Congress disbanded it in 1872. To this end, the organization’s local chapters, which partly functioned as mutual aid societies, collected monthly dues from its membership that were redistributed to members in times of need (e.g., infirmity, disability, for funeral expenses, etc.). Second, working on the national stage, the group contended that formerly enslaved persons were entitled to pensions such as those paid to former Union soldiers. For more than two decades, the Ex-Slave Association would raise public awareness around the pension issue and lobby politicians to support related legislation. Notably, pension proponents included not only this group of formerly bonded persons, but also prominent and often paternalistic whites, such as Dickerson’s former employer, newspaperman and Confederate veteran William Vaughn, who had begun to advocate for pensions several years before the formation of the Ex-Slave Association in the hopes that the plan would produce financial stimulus for the impoverished South.6
Besides Dickerson, the Ex-Slave Association’s most prominent and important leader was House. A former slave, a widow, and a mother, House traveled the United States organizing emancipated blacks and garnering support for her organization and its reparations goals. During her travels, she also petitioned members of Congress to support the passage of HR 11119, a bill that would establish a pension plan for the formerly enslaved. The bill did not move beyond the congressional Committee on Pensions, where it was tabled. Given that congressional leaders never took the activists and their allies seriously, this was unsurprising. Indeed, one government official freely admitted that there was not “the remotest prospect” that the pension bill would be passed into law.
In 1915, with the organization’s legislative strategy for reparations effectively stalled, House quietly spearheaded a class-action lawsuit filed by four former slaves against William McAdoo, then secretary of the Treasury. The litigants traced and calculated the economic gains to the state that resulted from the labor of black enslaved workers. The African American plaintiffs contended that their labor yielded cotton that in turn produced tax income for the federal treasury in excess of $68 million during a six-year span from 1862 to 1868. This sum was the least the US government should pay, the litigants argued, for more than a century of expropriated labor. The case went to appeal. In 1916, an appellate court ruled that in naming McAdoo as the suit’s defendant, the plaintiffs were effectively suing the US government by proxy. Under the principle of governmental or “sovereign” immunity, however, the federal government could not be sued. As the court ruled, “the United States cannot be made a party to this suit without its consent.”7 The Supreme Court would uphold this decision. Legislative and judicial defeats, and the US government’s harassment and intimidation of House—who would be convicted on questionable federal mail-fraud charges the following year, a fate shared with the black nationalist leader Marcus Garvey—effectively marked the end of the Ex-Slave Association.8 But its work has carried forward.
Estimated to have had a membership of several hundred thousand people at its height, the Ex-Slave Association’s multifaceted approach to reparations advocacy, which tacked from grassroots organizing to political lobbying and from economic calculation to courtroom sparring, illustrates the resourcefulness necessary to advance an unpopular cause. While the Ex-Slave Association was not the only organization of its time devoted to securing slavery reparations, its innovative, wide-ranging activism planted the seeds for future movements.
The group’s rise and fall also foreshadowed the barriers that subsequent reparations activists would face, callous indifference and dogged harassment among them. More materially, the Ex-Slave Association’s path revealed the legal constraints that would daunt any future claims for reparations, including sovereign immunity, the legal doctrine that renders a sovereign state immune from civil suit or criminal prosecution. Indeed, detouring around sovereign immunity was the challenge confronting reparations activists a century later; in Farmer-Paellmann v. FleetBoston plaintiffs would pursue restitution from private corporations that benefited from the transatlantic slave trade rather than seek repayment from the state.
By the mid-twentieth century, the cause of reparations was a well-developed focus of African American social justice activism. The efforts of the “Queen Mother” Audley Moore are a case in point. Moore, the Louisiana-born granddaughter of slaves, was an activist and organizer for more than seven decades. She got involved in racial politics in 1919 after attending a lecture by the black nationalist leader Marcus Garvey. “It was Garvey who brought the consciousness to me,” Moore would later recall.9 She joined Garvey’s Universal Negro Improvement Association (UNIA) and soon after moved from New Orleans to New York City to work on behalf of the organization. In Harlem, Moore became engaged in a wide range of political activities including reparations activism. “Ever since 1950, I’ve been on the trail fighting for reparations,” she said. In addition to stolen wages and lost wealth, mid-century reparations activists like Moore, who carried out their work three generations removed from bondage, began to shed light on the damage of racial slavery in the present, including the loss of kin and heritage. As Moore explained, “They owe us more than they could ever pay. They stole our language, they stole our culture. They stole us from our mothers and fathers and took away our names from us.”10
This wider perspective also allowed Moore a broader geopolitical vantage for her reparations activism. Understanding the struggle for black liberation through reparations as a transnational issue amenable to international political remedies, Moore presented petitions to the United Nations in 1957 and 1959 on behalf of slave descendants, charging that “genocide” had been perpetrated against black Americans. Adopted by the UN following World War II, the Convention on the Prevention and Punishment of the Crime of Genocide defined genocide as including practices that were norms of plantation slavery, such as “killing members of the group,” “causing serious bodily or mental harm to members of the group,” “inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” “imposing measures intended to prevent births within the group,” and “forcibly transferring children of the group to another group.”11 Moore believed that the transatlantic slave trade comprised genocide and demanded that amends be made to black Americans in the form of land and money. The turn to international statutes reflected lessons learned from the failures of earlier reparations activists using domestic law as well as the ingenuity now characteristic of reparations activism.
Around the same time, Moore read an essay explaining that international law held that “enslaved people [are deemed to be] satisfied with their condition” if they “do not demand recompense after 100 years have passed.”12 This information gave her reparations work a particular urgency. In 1962, a few years shy of the one-hundredth anniversary of the Emancipation Proclamation, Moore demanded reparations for blacks in a White House meeting with John F. Kennedy during which she presented the president with a petition of one million signatures in support of restitution. In the same year, Moore founded the Reparations Committee of Descendants of United States Slaves.13 The organization was a crucial forerunner in the work of “grassroots education on reparations” in African American communities and would propagate the cause among a new, younger generation of activists.14
Indeed, it was Moore who would stir a passion for the reparations cause in Harvard legal scholar Charles Ogletree, during a chance encounter when both were traveling to Tanzania in the 1970s; he would go on to cochair the Reparations Coordinating Committee (RCC) with TransAfrica Forum leader Randall Robinson and Adjoa Aiyetoro, lead counsel for the National Coalition of Blacks for Reparations in America (N’COBRA).15 A legal think tank composed of activists, established in 2000, the RCC was devoted to finding a strategy for reparations that could be carried forward in a US courtroom or before an international body. As Ogletree explained, the outcome sought by the group was not financial restitution so much as “a change in America.” He elaborated, “We want full recognition and remedy of how slavery stigmatized, raped, murdered and exploited millions of Africans through no fault of their own. . . . The country has never dealt with slavery. It is America’s nightmare. A political solution would be the most sensible, but I don’t have a lot of faith that’s going to happen. So we need to look aggressively at the legal alternative.”16
At the same time, Deadria Farmer-Paellmann was working on a parallel strategy to that of the RCC, building momentum to bring the class-action suit that bears her name to trial. Among the hallmarks of Queen Mother Moore’s championing of reparations was the expansion of it from a domestic issue to a global one in African American politics, by laying claim to international human rights law available after the formation of the UN in 1948. This framework would be central to the RCC strategy and to the Farmer-Paellmann v. FleetBoston litigation, categorizing slavery as a “crime against humanity” and, in so doing, appealing to the UN for restitution and reconciliation.
The Republic of New Afrika (RNA), founded in 1968 by brothers Imari Obadele (formerly Richard Henry) and Gaidi Obadele (formerly Milton Henry), also foregrounded the larger geopolitical terrain of reparations activism. Imari Obadele would play a founding role in the important reparations organization N’COBRA.17
While Queen Mother Moore and the RNA had an international frame of reference, the context for the “Black Manifesto” was decidedly domestic. James Forman Sr., a former leader of the Student Nonviolent Coordinating Committee, took up the baton in the race for racial recompense in the black power era. On May 4, 1969, he disrupted Sunday services at New York City’s historic Riverside Church in order to make an audacious pronouncement demanding reparations for African Americans. (Forman was one of a national network of black activists, working in concert, who interrupted religious services across the United States to deliver the Black Manifesto on this day.)18 Speaking on behalf of the National Black Economic Conference, whose members had collectively drafted the manifesto in Detroit one month prior, he asked that $500 million in restitution be paid to black Americans by “Christian churches and Jewish synagogues” that were said to be “part and parcel of the system of capitalism” that had contributed to the global exploitation of black people.19 The Black Manifesto, which would be published in the New York Review of Books, reflected the revolutionary rhetoric of the time in seeking reparations in the form of access to education, job training and employment, land in the South to support cooperative farming, and an expanded welfare benefits system. In Ta-Nehisi Coates’s widely read 2014 long-form essay, “The Case for Reparations,” he maintains that the “compounding moral debts” since slavery—black codes, segregation, economic marginalization—and the nation’s lack of an ethical response to this suffering, rather than slavery per se and solely, are what is at issue in the politics of reparations. As the facets of the Black Manifesto make clear, Forman and his collaborators knew this well. Here reparations claims based on the abuses of slavery and its aftereffects further evolved to implicate capitalism and racism.
In the final decade of the last century and the first years of the new millennium, reparations politics reached an apex. By the late twentieth century, more than one hundred years after the formal end of slavery in the United States, the reparations movement sought to respond to the historical erasure of the trauma of slavery. Beginning in 1989, US Representative John Conyers introduced bill HR 40—the Commission to Study Reparation Proposals for African Americans Act. This bill, named to resonate with the “forty acres and a mule” that were promised but that went undelivered to newly emancipated African Americans, is a moderate piece of legislation. Its passage would merely mandate the creation of a commission to study slavery and its present-day impacts, and make suggestions about possible remedies.20 In more than twenty-five attempts, HR 40 has never made it out of the House Judiciary Committee. The lack of support for the Conyers legislation effectively means that the United States “has never authorized an examination of this nation’s participation in the enslavement of Africans and the segregation and labor exploitation of their descendants.”21
Herein lies the rub. Why avoid the mere discussion of reparations? Coates advises that “the idea of reparations is frightening not simply because we might lack the ability to pay. The idea of reparations threatens something much deeper—America’s heritage, history, and standing in the world. . . . Reparations—by which I mean the full acceptance of our collective biography and its consequences—is the price we must pay to see ourselves squarely.”22 In other words, at this moment, acknowledgment and racial reconciliation are what is at stake, and these are perhaps more important than monetary reparations. Historical amnesia is a lynchpin of today’s “post-racial” politics—out of sight, out of mind—and bringing the history of racial discrimination into view has become one of the principle jobs of genetic ancestry testing.23
In 1994, California was the site of the first slavery reparations lawsuit since Johnson v. McAdoo almost one hundred years prior. In the words of the court, in Cato v. United States the plaintiffs sought “damages due to them for the enslavement of African Americans and subsequent discrimination against them, for an acknowledgment of discrimination, and for an apology.”24 In keeping with the resourcefulness exercised in 130 years of reparations struggles, the attorneys for Cato invoked the legal precedent of a case involving Native Americans. In Oneida Nation v. State of New York, the Oneida community won a US Supreme Court case in which they were awarded restitution for “wrongful possession of their lands.” The plaintiffs in Cato drew a parallel to enslaved men and women as wrongfully possessed human property. However, the statute of limitations and sovereign immunity—the hurdles that doomed prior slavery reparations trials—remained. Thus, the fate of Cato was not a surprise. More recently, in Obadele v. United States, the Court of Claims dismissed this case seeking slavery reparations based on the model with which restitution was paid to Japanese Americans who were interned during the Second World War. (Notably, the plaintiff in this case was N’COBRA cofounder Imari Obadele.) The plaintiff contended that not to allow African Americans to make use of the Civil Liberties Act of 1988 was unconstitutional because it denied them equal protection. The case was decided against Imari Obadele, with the court noting, however, that the act could apply to other groups. The legal hurdles faced in the Cato and Obadele decisions would be encountered in any future litigation to obtain reparations.25
In 2000 the anti-apartheid activist and Harvard Law School graduate Randall Robinson published the best seller The Debt: What America Owes to Blacks. The book is an expansive and impassioned argument for why blacks deserve reparations. Like Michelle Alexander’s influential book The New Jim Crow, which would be published a decade later, Robinson’s book set the agenda for black politics in its moment. He advocated payment in the form of a national trust fund that would finance social, economic, and educational empowerment for African Americans. Importantly, and anticipating how the Farmer-Paellmann case would evolve, Robinson argued that the reclamation of lost history was as important as monetary payment. He used the analogy of recent international reconciliation events to press his point, writing that “we make only the claims that other successful group complainants have made in the world. Put simply, we too are owed.”26 Like Coates, he stressed the importance of merely opening up a national conversation about the history of racial slavery: “The catharsis occasioned by a full-scale reparations debate . . . could launch us . . . into a surge of black self discovery. . . . We could disinter a buried history . . . and give healing to the whole of our people, to the whole of America.”27 The Debt, which can be considered a twenty-first-century manifesto for racial reparations by Robinson, who cochaired the RCC with Ogletree, galvanized interest in financial restitution for black Americans. By 2001, the New York Times described the reparations struggle as a movement of “substantial force” that was “gaining steam.”28 The ebb and flow continued.