Slave Wages

The lawsuit reads more like a lesson in black history than it does a class action in federal court. Its pleadings tell the sad tale of Andrew Jackson Hurdle, a 10-year-old slave who was torn from his family in 1855 and sold to a Texas cotton farmer who purchased him as a playmate for his master's lonely son. But the plaintiff in the lawsuit, which was filed in Galveston in January, is not Hurdle, who died a free man and father to 25 children; it's his great-granddaughter Ina Hurdle McGee, a retired Dallas teacher who is seeking reparations on behalf of all black descendants of Africans enslaved in America.

The lawsuit, one of several class actions filed across the country, is part of a burgeoning slavery reparations movement, which insists on a national conversation about slavery to heal the country and make African-Americans whole. Part of that conversation is aimed at setting up a truth commission to fully examine slavery and the role its legacy of racial discrimination continues to play in society. The more controversial part is an attempt through litigation to fix blame and assess damages against government and corporate defendants who allegedly profited from the slave trade. Bolstered by the success of Japanese-Americans and American Indians in pursuing their historic grievances against the government, an influential cadre of African-American lawyers, academics and activists has identified the black descendants of slaves and convinced many of them to sue.

Ina McGee is not just asking for a dialogue regarding the "crimes against humanity" perpetrated against her great-grandfather. In her lawsuit, she also claims that as the descendant of slaves she is entitled to damages for the vestiges of slavery: racism, segregation, racial profiling and many of the social ills that disproportionately plague blacks. McGee has sued, among others, Union Pacific and JPMorgan Chase, claiming that through their "predecessors-in-interest," the companies unjustly enriched themselves by "the profits and products" derived from slave labor.

The litigation has its critics, even within the African-American community. Some argue that it's unconscionable to hold one generation accountable for the crimes of another; others say that proving 200-year-old damage claims is legally implausible, particularly when the victims and the perpetrators are both dead; still others claim they have done nothing for which they should be held responsible. And McGee has no proof that her ancestors worked for the named defendants.

"The key here is that what happened 150 years ago was under a totally different set of social and moral circumstances that have nothing to do with our company today," says Union Pacific spokesman Mark Davis. "This lawsuit raises public policy questions that should be resolved by Congress and not by lawyers."

These arguments hold no sway with 69-year-old McGee, whose slave heritage compelled her to "fight racism" from the time she was a young girl in Greenville. "You know about Greenville, don't you?" she says. "The town that bragged it had the blackest soil and the whitest people."

Known as the "civil rights twins," Ina and her sister, Nina, showed their early defiance of Jim Crow laws when they would flagrantly drink from "whites only" water fountains. Although they won the "identical twins contest" at the State Fair five years running, they found it disturbing that blacks were only permitted to attend the fair for one day each year. But what incited her activism was the packaging on laundry detergent that featured the "'gold dust twins'--two black children who were only too happy to do your chores," she says. "Well, it was degrading to black children, degrading to Nina and I because white people would call us the gold dust twins." Both sisters wrote angry letters to manufacturer Colgate-Palmolive. "That was the beginning of our civil rights protests," she says.

Inspired by Martin Luther King Jr., whom they met during his visit to Dallas in the mid-'60s, they became active on a national level, attending demonstrations and rallies in Atlanta, North Carolina and Washington, D.C. Locally they marched against the Ku Klux Klan, protested against the lead smelters in West Dallas and demanded the release of Lenell Geter, an African-American engineer wrongly convicted for a spate of robberies.

Ina McGee has always felt her family was owed a debt, some kind of acknowledgement that her slave ancestors had been terribly wronged. "We had family reunions since 1945 and we joked with each other, 'Have you got your 40 acres and a mule yet?'" The joke referenced the first promise of reparations made to emancipated slaves by Union General William Tecumseh Sherman, a promise that was later retracted.

Despite the unrequited efforts of Michigan U.S. Representative John Conyers Jr. to enact legislation to study reparations, the notion of recompensing African-Americans for the sins of slavery has never gathered much political momentum. Within the past few years, however, the reparations movement has gained ground, led by a powerful group of African-Americans who have organized themselves into the Reparations Coordinating Committee. Because Congress has refused to act, they have taken their fight to court, devising alternative theories of liability, which seek to hold not just the government accountable but also corporations that may have profited from the slave trade.

"These lawsuits face enormous legal hurdles," says SMU law professor George Martinez, who teaches complex federal litigation. "Not the least of these is the statutes of limitations." Since memories fade and evidence becomes difficult to gather, courts favor finality, a time limit on bringing new litigation. "But there is no statute of limitations for a crime against humanity," defends Robert Notzon, one of McGee's attorneys.

Then again courts may find the damages too speculative or vast to reduce to a dollar figure. It's one thing to compensate a slave laborer for his lost wages, quite another to put a price tag on the harm caused by the legacy of slavery. "Courts can decide as a matter of public policy that the causation between the defendant's alleged wrongdoing [enslavement] and the harm to the plaintiff [the legacy of slavery] may be too attenuated, too remote," Martinez says. "But none of these obstacles is insurmountable in front of the right judge."

Even if these lawsuits fail to return staggering verdicts for their plaintiffs, they may have some strategic value. Vulnerable companies with some history of slave involvement may decide that from a public relations standpoint they had better settle. Already Aetna has publicly apologized for writing insurance for slave owners on the lives of their slaves. "Our conservative judiciary won't have much stomach for this kind of litigation," says David Bositis, senior analyst with Washington-based Joint Center for Political and Economic Studies, an African-American think tank. "But no company wants to be known for building its business on the backs of slaves." Settlement funds could then be used to support African-American organizations, underwrite college scholarships, fund social services.

Attorney Notzon similarly envisions creative settlements, which might include setting up a commission to study the effects of slavery and distributing settlement funds to ameliorate those effects.

Ina McGee maintains, however, that she should be compensated for the scars of what she calls the second wave of slavery. "I have the psychological scars caused by the Jim Crow laws and a lack of opportunity and education."

Not only does McGee want her lawsuit to fund a trust for those suffering from the legacy of slavery, she also wants a check. "America owes us a promissory note," she says. "The Bible tells us that the sins of the parents shall be visited upon their children to the third and fourth generation."

"Which pretty much sums up our litigation in a nutshell," adds Notzon.