65 Pages Posted: 9 Mar 2004
The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations - a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them - likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims of medical experiments, racial violence, and lending discrimination; a barrage of lawsuits demanding reparations from slavery profiteers is on the dockets of several courts, and more are expected. In the U.S. circa 2004, reparations is the stuff not only of litigation but legislative proposals, academic and popular articles, news editorials, town hall meetings, campus demonstrations, television programs, office water cooler debates, dinner table conversations, and cyberchat groups. If reparations is not a uniquely American remedy, it is no stretch to say that in the U.S. reparations talk is very much with us. Still, although advocates maintain that reparations is the first step in recovering history and fashioning a more equitable collective future, critics describe a divisive and retrospective movement threatening to widen racial and ethnic fault lines running through the American body politic. Consequently, reparative justice is hotly contested on doctrinal, political, and practical grounds: opponents reject the notion of collective harm and responsibility for ancient wrongs, deny linkages between the relative socioeconomic status of aggrieved racial minority groups and past injustices, and cling to limiting doctrines that deny remedies for acts and omissions that were lawful centuries ago. Reparations thus fuels unresolvable debates over the nature of minority disenfranchisement, the adequacy of civil rights legislation, the constitutionality of group entitlements, the ideal racial distribution of socioeconomic power, and the appropriate channel to pilot between the pursuit of racial justice and the preservation of social peace. Moreover, because a successful reparations movement might awaken other dormant claims, reparations debates generate resistance and backlash. Nevertheless, even if it can be realized only at the price of social unrest and the painful reopening of old wounds, reparations may well be the appropriate remedy in the case of specific meta-wrongs, foremost among them slavery. A significant element in the slavery reparations claim is the lost value consequence of the unpaid labor extracted from slave ancestors and thus it is logical that, with few exceptions, proponents of slavery reparations equate the remedy with financial compensation. Although money cannot undo history, it can ameliorate the socioeonomic conditions of the descendants of former slaves, and money is the lodestar of most reparationists. However, justice is not a one-size-fits-all commodity, and the potential suitability of compensatory remedies to the harms absorbed by any particular group is not dispositive of, nor even instructive in regard to, the question of whether reparations is appropriate for other claimant groups. Slavery is not the sole, nor the first, nor even, arguably, the most egregious historical injustice for which the U.S. bears responsibility. Moreover, cash is not the primary, or even an important, objective of some aggrieved groups. Non-monetary modes of redress may be more effective in inducing the national government to accept moral responsibility, in restoring the dignity and autonomy of injured groups, and in healing, reconstituting, and relegitimizing the nation. In other words, the specific claims posed by each aggrieved group bear examination and evaluation on their unique merits. Although the interests of groups may converge on particular issues and proposals emerging in reparations debates, what suffices to make one group whole may be wholly inadequate for, or even harmful to, another. Prevailing theories of justice, even those drafted in good-faith with the intent that they be universally applicable or at least readily malleable in transit from one application to another, may in fact be so bounded by the cultures and worldviews in which they were incubated that they are unable to recognize, capture, and remedy all the injuries inflicted upon the aggrieved group. Without judging its value as a remedy in general, reparations, as well as other theories of justice sketched and pitched at a high level of abstraction but without a comprehensive analysis of the context and history of the claims of the particular group in question, may, when applied, be useless at best and damaging at worst. Just as all politics is local, so is all (in)justice. For the indigenous people who have inhabited, since time immemorial, the lands within the external borders of the U.S., remediation of historical injustice is a pressing issue. Despite this, reparations would fail to advance, and might even frustrate, important Indian objectives, primarily the reacquisition of the capacity to self-determine as autonomous political communities on ancestral lands. Because the immense injustice at the core of U.S. national history is neither broadly acknowledged nor deeply understood, Part I of this Article provide some historical foundation and briefly sketches the necessary factual predicate to the Indian claim for redress. Part II presents and evaluate several theories of justice with respect to this claim. Part III counters the shortcomings and omissions of these theories with an indigenist theory that propounds a program of land restoration and above all legislative reform intended to accord the full measure of relief to Indian claimants consistent with the requirements of justice for all individuals and groups.
Keywords: Federal Indian law, constitutional law, jurisprudence, moral philosophy, remedies, reparations, restorative justice, indigenous rights
Suggested Citation: Suggested Citation
By Brian Leiter
By Joseph Raz