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Excerpted From: Deborah N. Archer, Reparations and the Right to Return, 45 New York University Review of Law and Social Change 343 (2021) (153 Footnotes) (Full Document)

DeborahNArcherSlavery was a system of theft. It was theft of life as people were stolen, enslaved, and brutalized. It was theft of property and product through forced labor. It was theft of identity and home, as people were repeatedly ripped from the communities and cultural practices that are central to the human experience. It was theft of happiness, dignity, and potential. Long after emancipation, the theft that began with slavery continued as Black people were systematically robbed of their property and their emotional, cultural, and economic investments in their communities through systems of white supremacy. This “extraction ... of wealth” from Black bodies and Black communities occurred through government action and inaction, a century of racial terror, and outright theft. Indeed, as stated by reparations scholar Randall Robinson, “no race, no ethnic or religious group, has suffered so much over so long a span as [B]lacks have, and do still, at the hands of those who benefited, with connivance of the United States government, from slavery and the century of legalized American racial hostility that followed it.”

Land ownership has always been a priority for Black people. In the days before emancipation, a group of formerly enslaved Black people met with General Sherman and told him what they needed to make a new life in the United States: “The way we can best take care of ourselves is to have land.” However, many promises by the U.S. Government to provide land to formerly enslaved Black people never came to be.

As Reconstruction ended and the age of Jim Crow began, formerly enslaved Black people and their heirs owned a significant amount of land. Indeed, despite constant and comprehensive efforts--both legal and extrajudicial--to dispossess them of their land, by 1910, Black people owned nearly 16 million acres of land in the United States, an area roughly the size of West Virginia. Many of these Black-owned acres were farmland, and by 1920 there were an estimated 925,000 Black farms. In 1920, Black people constituted 9.9% of the U.S. population, but owned 14% of the farms in America.

This success was met with a “white-supremacist backlash” around the country. One historian has explained, “[t]here is this idea that most [Black people] were lynched because they did something untoward to a young woman. That's not true. Most [B]lack men were lynched between 1890 and 1920 because whites wanted their land.” The United States has condemned similar land theft as a crime when committed by other countries, yet has failed to condemn the practice here. By 1975, only 45,000 Black farms remained. Today, Black people are only one percent of rural landowners in the United States, and of the one billion acres of arable land in America, Black people only own just over one million acres.

The story of the theft of Black land is not just about farmland. The driving out of Black people from their homes and communities; the theft of their farms, their businesses, and their livelihoods--these are all part of the history of American ethnic cleansing. The countless violent acts of “racial cleansing” throughout the 19th and early 20th centuries are also part of white America's always-evolving and never-ending efforts to exile and exclude Black people in order to claim communities and property as their own. Sometimes these efforts focused on destroying thriving Black communities or stealing sources of Black wealth. Other times, these efforts involved violence that kept Black people from moving into formerly all-white communities. In all of these scenarios, white people, driven by white supremacy and hatred for Black people, used violence, intimidation, the law, and deception to rid their communities of Black people and separate Black people from their property.

The resulting impact on Black people was about more than the loss of land, assets, or access to communities with better educational and economic opportunity. Nor was the impact limited to the reduced ability of Black communities to build wealth. Black people also lost their homes and livelihoods, their culture and communities, and their sense of place and belonging. One Black farmer describes losing his family's farm in 2015 after years of discrimination, harassment, intimidation, and fraud: “They took my livelihood, my family's legacy .... They took what I love.”

The renewed momentum in the century-long fight for reparations offers America the opportunity to grapple with how to address the full legacy of the land theft and displacement born from slavery. However, Government-sponsored efforts to redress land theft, exile through terror, and government actions that drove Black people from their homes have been few and sporadic. This Article argues that, to help redress America's systemic racial exclusion and theft of Black peoples' life, land, wealth, home, and culture, reparations should include a “right to return” for the victims of dispossession. The concept of the right to return has traditionally been used in international law to protect refugees driven from their homes through violent conflict or social exclusion. More recently, the concept has been expanded and applied to the right of individuals to return to their homes after being forced out because of government or private development efforts, gentrification, and natural disasters.

The right to return offers an internationally understood framework that can provide a strong policy and moral argument to advance reparations for Black people who lost their land or were forced from their homes. Furthermore, a right to return can also justify specific remedies to families whose home or land was destroyed or stolen, whose businesses were stolen, or who were driven out of their communities. Displaced people or their descendants might not be able to return to the exact homes that were stolen from them, but they could receive compensation for the value of lost homes and assistance to rebuild their lives in those communities. Recognizing a right to return would be a modest step towards recognizing and redressing the theft and violence of slavery, racial terror, Jim Crow, and decades of government-sanctioned housing and property discrimination.

This Article provides a starting point for discussing what should and can be done. It proceeds in three parts. Part II discusses reparations generally as well as the specific need for reparations in the context of housing discrimination and land theft. Part III explores the American system of racial cleansing and the exile of Black people in an attempt to claim and protect “white spaces.” This Part pays particular attention to the use of violence and intimidation to keep Black people in “their place,” physically and economically. Part IV connects that history with the right to return, exploring applications of the right to return in both international and domestic contexts. This Part concludes with a brief discussion of the opportunities to advance justice by adopting a right to return as a component of Black reparations.

[. . .]

The call for reparations reflects an insistence that this country provide compensation and reparative measures that will help to finally make the idea of America held and experienced by white people real for Black people. This demand was eloquently expressed by Langston Hughes in his poem Let America be America Again:

O, let America be America again--
The land that never has been yet--
And yet must be--the land where every man is free.
The land that's mine--the poor man's, Indian's, Negro's, ME--


O, yes,
I say it plain,
America never was America to me,
And yet I swear this oath--

America will be!

Our national conversation about reparations offers an important opportunity for America to redress its history of land theft, exile, and displacement that was born from slavery and that continues through a century of racial terror. As a moral demand and policy framework, a right to return could be an important step forward in the construction of reparations for Black people. A right to return could be used to give Black people the opportunity to regain the value of stolen homes and land, live in previously forbidden communities, and create meaningful opportunities to rebuild lost wealth.

Professor of Clinical Law and Co-Faculty Director, Center on Race, Inequality, and the Law, New York University School of Law, and President of the American Civil Liberties Union.

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