The Magazine

"Forty Acres and a Lexus"

California governor Gray Davis weighs in on behalf of slave reparations.

May 27, 2002, Vol. 7, No. 36 • By DEBRA J. SAUNDERS
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SAN FRANCISCO
California is the last place that ought to be embroiled in the slave reparations controversy. Slavery was never legal in the state. There were no plantations. Its ports were not slave trade centers--wrong coast.

Nonetheless, California has become the first state to step into the reparations game. The legislature two years ago passed, and Democratic governor Gray Davis signed, a bill requiring insurers doing business in the state to provide information on any slave policies they or predecessor companies had issued. The state's imprimatur lends undeserved credibility to the long-shot effort by race demagogues to shake down corporations for damages incurred in pre-Civil War America.

On May 1, California's insurance commissioner, Harry Low, made public data from the Slavery Era Insurance Registry. Low's office noted that 92 percent of insurers complied with the measure--with most claiming they had no hard evidence of slave policies (some had conveniently destroyed old documents). Only 8 out of more than 1,300 insurers provided comprehensive answers. Aetna, for example, produced the first names of 16 slaves covered by policies payable to the slaveowners in the event of damage to or death of the slaves.

At an April 24 press conference with Jesse Jackson, Davis said the reparations law he signed was important, because "clearly we want to right any wrongs and do justice to people who were taken advantage of." Later, his staff tried to spin that statement into meaning that Davis supported the collection of information, but that he has no position on paying reparations. As Davis eyes reelection and then the White House, his staff is hoping America won't notice that he is now the highest-ranking elected official in America to take a stand in favor of reparations.

There are two schools of thought as to who should pay slave reparations. One school--the Reparations Coordinating Committee, which includes Harvard law professor Charles Ogletree, writer Cornel West, formerly at Harvard, and O.J. attorney Johnnie Cochran--wants the U.S. government to pay damages, since the American government for its first four score and seven years countenanced the insidious trade in human beings.

The other school believes that private entities--corporations, banks, and universities--that can be shown to have retained the profits of human bondage should disgorge them. It was with this in mind that then-state senator Tom Hayden drafted legislation in 2000 calling for a University of California colloquium "to draft a research proposal to analyze the economic benefit of slavery that accrued to owners and the businesses, including insurance companies and their subsidiaries, that received those benefits." Davis signed that measure, which Hayden had introduced as a companion to the insurance bill.

It seems unlikely that the state of California will use the slave registry information to levy any sort of fine against insurers, but that's not the problem. The slave registry has provided ammo to private litigants who are suing companies for damages. Reparations attorney Bruce Nagel told the Boston Herald that the California data provide "further proof that these companies were an integral part of the slave trade."

And proof is a useful commodity. In March, Nagel, Ed Fagan, and a small army of lawyers filed suit in federal court in Brooklyn against three named companies--Fleet Boston Financial Corporation, Aetna, and CSX--and one hundred "corporate (John) Does." The suit provided no specific sum for the damages of slavery, but the attorneys noted that the present value of the profits from slave labor amounts to $1.4 trillion. While the suit specified the three companies' background in the slave trade, it also noted that "all industries: raw market, retail, financial, insurance, and transportation, benefited from the reduced costs of slave-produced goods." Thus any company in business before 1865, or that bought a business that operated while slavery was legal, is liable in the eyes of reparations advocates.

Aetna provides a good example of why insurers might not want to bare all before the California Insurance Commissioner. Activist Deadria Farmer-Paellmann first approached Aetna to ask the company if it had sold any slave policies. Aetna historians checked, verified those few policies, and the company apologized for this stain on its past. Later Farmer-Paellmann became a major plaintiff in the Brooklyn reparations suit.

On May 1, Richard E. Barber--a grandson of slaves--filed suit against three other companies, including New York Life Insurance. New York Life admitted issuing slave policies but told the California insurance commissioner that after two years of selling slave policies, its trustees had voted to end the sale of all such policies in 1848.

When California released the slave data, the story could have been a poignant reminder about the inhumanity of slavery. It is a sobering lesson in American history to read through the lists of souls known only by their first names, whose identities were compressed into John, steam boat fireman, or Bella, house servant, policy number (s)615-1316.

But in the context of reparations litigation, newspapers concentrated on slave descendants who hoped to track down their ancestors, mindful of the potential for a payment. "Everybody hopes that it's going to be one of their ancestors on that list," the president of the California African American Genealogical Society told a reporter.

What these seekers probably don't realize is, first, that under existing liability law, none of these lawsuits has a prayer of succeeding. But of course, facing sufficient bad publicity, some corporations might want to settle. Then will come another rude awakening for those whose ancestors were enslaved: The private reparations lawsuit in Brooklyn doesn't seek to award damages to actual slave descendants. Newspapers don't understand that either. They repeatedly refer to reparations as a movement to make the government or companies "pay damages to slaves' descendants" (to cite the Philadelphia Inquirer).

Wrong. As Jesse Jackson told the San Francisco Chronicle, reparations "will not be, 'Rowena, pick up your check at the register.'" The documentation is simply too thin. And if it were possible to track down descendants, the payout would be too small. It wouldn't be worth a lawyer's time to track down the 40 descendants of a slave once covered by a $300 premium.

And so Fagan's lawsuit, as well as groups that champion reparations to African Americans, supports payment of damages to--groups that champion African Americans. As writer Earl Ofari Hutchinson explained in the San Francisco Chronicle, forcing insurers that profited from slavery to pump money into AIDS/HIV education, remedial education, and job training would "help the black poor, not tap taxpayer dollars, and finger all whites as culpable for slavery." Not dead, slave-owning whites, or some whites, but "all whites."

And it still wouldn't be enough to wipe the slate clean. The term "reparations," after all, implies that payment for slave profits would repair the damage of slavery. But if African Americans deserve compensation for their ancestors' enslavement, why would African Americans settle for someone else getting the money? Or as Eva Paterson of the Lawyers' Committee for Civil Rights told the San Francisco Chronicle, "The high-road side of me says this should go to a fund of some kind. But another side says give me my money. As the saying goes: If not 40 acres and a mule, then 40 acres and a Lexus."

But wait, there's more. According to Jackson, the payment of reparations shouldn't end with African Americans. Chinese Americans have cause for grievance, as the "coolie" labor of their grandparents helped build the railroads. In fact, Manhattan Life volunteered to Harry Low that it had "insured shippers for their cargo of 700 Chinese coolies on a journey from China in 1854." So it's probably only a matter of time before Chinese-American reparations lawsuits are filed. Ditto Mexican Americans who worked for substandard wages because they lacked citizenship.

YOU MIGHT THINK that Gray Davis's GOP challenger Bill Simon would be railing against Davis until his voice goes hoarse for Davis's role in promoting this Great American Shakedown. One day Simon could address the concept of holding companies accountable for crimes committed more than a century ago--or, rather, for legal but immoral long-ago deeds. Because of course the scandal of the slave insurance policies is that the law countenanced them--one more reason the lawsuits are just grandstanding. The next day Simon could explain how these bills might chase businesses out of California. And then perhaps he might ask how the millions of African Americans who today are employed by and own stock in these insurance companies will benefit from the shakedown.

Camp Simon has been slow to see the issue's significance. At first the Simon campaign refused to give a statement on reparations. More recently, Simon strategist Jeff Flint has said that the reparations bills provide "another example of Gray Davis failing to do anything for the African American, so he's trying to make up for that by pandering to Jesse Jackson." That was the best he could do. Then again, he was following the Dubya playbook. When asked about reparations, White House spokesman Ari Fleischer responds, "The president does not weigh in on any matters in the private sector involving litigants."

And yet, far from being a matter in the private sector, the injustice of slavery is an issue of the profoundest national importance. And the deep understanding of most Americans is that reparations were paid in the years 1861-1865, although there remained plenty to atone for thereafter. Today's political leaders may want to dodge the topic, but they could do worse than to cite Abraham Lincoln, who eloquently confronted the issue of reparations in his Second Inaugural address: "Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away," Lincoln said. "Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn by the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, 'The judgments of the Lord are true and righteous altogether.'"

Today the Bush and Simon teams clearly do not understand what average voters feel in their bones and what Davis aides themselves know all too well: Reparations is the ultimate wedge issue. Reparations cut to the very core of what is just and unjust. If the state sanctions suits designed to, as Earl Ofari Hutchinson said, "finger all whites"; if it doesn't matter that working people and their immigrant parents had to scrape and sacrifice for everything they have; if it doesn't matter that over 100,000 Union soldiers died in battle and millions of other Americans sacrificed and suffered to end slavery; if California can punish individuals for what their long-dead ancestors did somewhere else; and if a group of lawyers and demagogues can win government-sanctioned retribution for crimes committed a century or more ago--then Sacramento might as well be Palestine and California might as well be Bosnia.

If California agencies or California courts punish companies for distant crimes, they will be penalizing hard-working shareholders, consumers, and workers for sins they abhor, never committed, and never had an opportunity to stop. To punish innocent people in the name of justice would be a travesty.

Debra J. Saunders is a columnist for the San Francisco Chronicle.