Beyond Reparations: An American Indian Theory of Justice.

Source: (2004) Ohio State Law Journal. 66: 1-104. Downloaded 14 October 2005.

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 talkâ€? 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,â€? 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 “wholeâ€? 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. Author’s abstract.