Too much success can be a bad thing – if you are African-American

Greenwood, OK was a district of Tulsa organized in 1906. By 1921, it was home to 10,000 Black residents.  Greenwood Avenue ran only through the Black area so they had it all to themselves. It was home to the Black commercial district that included grocery stores, banks, libraries, billiard parlor, barber shop, pool hall, a dozen churches, and a funeral home. On the street were the offices of African-American attorneys, real-estate agents, dentists, doctors and entrepreneurs.

One of the first businesses was A.O. Gurley’s rooming house.  He expanded from there to three two-story buildings, five residences and an 80-acre farm as well as founded what is today the AME church. Another Black entrepreneur and lawyer, J.B. Stradford, came in 1899 and bought large tracts of land that he sold only to Blacks.  He later built the Stradford Hotel, the largest Black-owned hotel in the U.S.  By 1921, Gurley was one of the richest Black men in America and Greenwood was one of the most affluent African-American communities. It became known as “Black Wall Street.”

Such visible Black success did not sit well with the white citizens. When Black women walked down the street in the white area, whites would rip off their jewelry or furs.

The attack

The residents of Greenwood did not often go into Tulsa but on May 30, 1921, 19-year-old Dick Rowland did.  When he entered the elevator of a building, he tripped and to stop himself from falling, he grabbed the arm of the elevator operator, a 17-year-old girl.  She then reported that he had attacked her and he was arrested.  Echoes of Emmitt Till and most recently Amy Cooper of the Central Park dog walker infamy reverberate today.

The afternoon paper spread the news quickly and talk of lynching followed with a mob of white men gathered outside the jail. To protect Rowland, a group of African-Americans who had been soldiers in WWI went down to the courthouse. As they were leaving, a white man approached one of them and tried to take his gun. The Black man refused and in the ensuring tussle, the gun went off.  As O.W. Gurley said, then “all hell broke loose.”

The white mob fired on the Black men.  Outnumbered by more than 20 to one, the Blacks fought back and retreated to the Greenwood district.  The sheriff deputized 500 men and told them to get a gun and shoot a Black person though he did not use those words.  Police distributed what guns they had and then the men broke into pawn shops and stole more.

Not until 11 p.m. on May 31 was the National Guard called but they only made things worse.  They mounted a machine gun on the back of a truck and mowed down Blacks. A dozen planes flew overhead dropping explosives including flaming balls soaked in turpentine onto roof tops to start buildings on fire.

Some of us can remember 1985 when the only other air bombing of an American city happened in Philadelphia. The police bombed a house in a Black neighborhood that was occupied by MOVE.  They killed 11 people including five children and burned down 65 homes in the Black community.

As the Blacks fled from Greenwood, the white mob systematically looted their homes and then set them on fire. Recently, a young Black criticized about looting said, we learned it from you.

The city shut down the telephone and rail lines making it hard for the Blacks to escape.  Similarly during recent protests in Chicago, the police shut off public transit, announced a curfew, and told uprisers they had to be home when of course they had no way to get there.

By the morning of June 1, 1921,  the rioting mob of whites and National Guard troops had grown to 15,000-20,000.  At 11:29 a.m., Oklahoma’s governor declared martial law in Tulsa, citing among other reasons the pervasive control of the courts by the Ku Klux Klan.

What happened afterward?

Greenwood was destroyed.  Up to 300 African-Americans had been murdered by city and state officials. Every church, school, and business had been set on fire. Thirty-five square blocks of property were burned, 191 businesses, and 1,256 homes were destroyed, property worth approximately $21,743,016 in 2005 dollars ($2 million in 1921 dollars) was lost, and 10,000 African-Americans were left homeless.

Six thousand African-Americans had been held at gun point in the fairgrounds and then forced to clean up the mess made by the white people.  Whites made “postcards” of riot photos and sold them as they did of other lynchings. Today whites re-enacted the murder of George Floyd and put their grinning photos on Facebook.

No investigations were ever done.  No one was ever charged for the murders or damages. The city denied they had anything to do with it rather they claimed the African-Americans had started it and issued indictments against them.  This is a common pattern as well.  Kenneth Walker, the innocent boyfriend of Breonna Taylor murdered by Louisville, KY police, was then charged though charges have since been dropped.  Many Black Panthers were charged for murder in the 1970s when it was the police who shot the people, often Panther comrades.  Some are still in prison or in exile.  Ironically the charges against Rowland were dropped. The authorities had achieved their mission.

The Lawsuits

Insurance companies refused to pay for the buildings destroyed. In Redfearn v. American Central Ins. Co, 1926 OK 22, 243 P 929 116 Okla. 137 (1926) the plaintiff sued to recover for a theatre and hotel.  The insurance policy however had a clause that they did not have to pay if the damage was caused by a riot.  The company put on evidence that the damage was indeed caused by a riot.  The court described the event and not to subtlety blamed the Blacks – it was Blacks who got excited because another Black was going to be lynched, and it was Blacks who armed themselves. These armed Negroes drove around, parked their cars, and marched single file down the road.  Shots were fired and one white man was killed. The court admits the Negros left and returned to their part of the city.

But then the whites armed up and went to the Black part of town to “guard the city.”  But after a bunch of shooting, a number of men (no race mentioned) were  killed. Fires started breaking out and the men prohibited the fire department from helping.  Blacks said no fire department ever came at all.  The court did state that men wearing badges went into the buildings and after they left, fires broke out. Seems pretty clear who started them. So this was a riot said the court, and thus the insurance company had to pay nothing.

The plaintiffs argued that it was a fact question for the jury, the there was no proof how this particular fire started, it could have been an intervening cause (a nearby burning train car), or the police could have started it themselves which is illegal but not a riot. The court said there was no evidence the police set fire though the court itself had said the police went in, came out, fires started – res ipsa loquitur (the thing speaks for itself).  The company was absolved of having to make any payments.

Banks refused to release money if customers did not have their bank book, claiming they had no record of that persons. Of course the bank book was burned up in the fires. When the Blacks refused to sell their property at bargain basement prices, the city used eminent domain to take it.  The city rezoned the area and ran a highway through the town that displaced people and forced them north.  They also required new buildings to be fireproof thus making them prohibitively expensive to rebuild.

Though over 100 lawsuits were filed by victims, all were dismissed.  The only ones ever compensated were the white gun shop owners who recovered damages for the guns taken to murder Blacks.  When slavery ended, the only ones compensated were the southern plantation owners for their lost “property.”  History does repeat itself.

Not until 1997 did Oklahoma commission a study of the riot. After four years, the commission released its report.  It confirmed that public officials had provided firearms and ammunition to the white mob. It confirmed that the National Guard had participated in the abuse and mass arrests. It confirmed details of the deliberate torching of homes and businesses by governmental agents.  The state legislature then adopted many of the Report’s findings. The documentation made a strong case that the local municipal and county officials failed to take action or themselves engaged in the violence as well as deputizing others to kill.

In 2003, the victims filed a lawsuit in federal court asking for the return of the $2.8 million that had disappeared and the $50-$100 million in property damage.  Tulsa said they were not responsible.  In the case, Alexander v. Oklahoma, 382 F. 3d 1206 (2004) the district court held that the complaint was time barred and the appeals court held that the claims could not withstand scrutiny under either an accrual analysis or equitable tolling principles and affirmed that dismissal.  The decision was appealed to the U.S. Supreme Court that denied cert and the case was dead.

In the 2003 lawsuit, the victims argued that the conspiracy of silence outlined in the Commission report meant the ability to sue did not arise until the release of the report.  They pointed out that the grand jury at the time had exonerated the white mob and brought indictments against Blacks.  The court disagreed and said the victims knew the city was involved.  After all they filed over 100 lawsuits in 1921 and one even went to the Supreme Court in 1923.  They probably did know, but could not get the proof at that time and since all 100 lawsuits were dismissed, it was obvious the court was not available for them.

In addition, the District Court said that if a defendant deliberately conceals facts, they should not be able to use the statute of limitations to escape liability i.e. you cannot profit from your own wrongdoing. The commission report said the city did just that and the disappearance of documents and files from the Oklahoma National Guard, the County Sheriff, and the Tulsa Police Department was more proof.   Knowing all that, the court ruled against the plaintiffs anyhow. The appeals court admitted that all the lawsuits were dismissed and not one African-American recovered one dime and that is “tragic,” but it wasn’t relevant to the case. The courts were still closed to them.

The plaintiffs argued detrimental reliance on the city who promised to rebuild and since the victims were waiting for that to happen, they were entitled to tolling (stopping) of the statute of limitations. The court laughed that one off by saying that the city imposed zoning restrictions shortly after the riot to cripple the ability to rebuild. Even after the Supreme Court declared these restrictions illegal, the city refused to pay compensation. The city was the one who exonerated the white mob and arrested Blacks. The court made it clear they thought the victims must be fools to ever believe anything white people promised them.

The court did agree that the victims were powerless against the white majority at the time, meaningful access to the courts was denied, as was any ability to obtain damages for their property losses. The court admitted that widespread fear of reprisals pervaded the African- American community in the aftermath and for several decades thereafter.  Right there, the appeals court admitted that the victims were denied access to the courts. That means the statute of limitations should have been tolled.  But no.

The court did agree there were extraordinary circumstances which is another reason to toll the statute of limitations but in this case, those circumstances miraculously disappeared in the 1960s, 1970s and 1980s when civil right statutes passed therefore achieving complete equality between Blacks and whites. Besides, in 1982 a book, Death in A Promised Land, was published with information about the city and state’s involvement in the riot and the victims should have sued then.

The United States District Court for the Northern District of Oklahoma dismissed the claims on March 19, 2004;The United States Court of Appeals for the Tenth Circuit affirmed the District Court’s ruling on September 8, 2004; it denied Victims’ request for rehearing en banc on December 13, 2004.The United States Supreme Court declined to grant a writ of certiorari in this case on May 16, 2005.  All legal avenues were exhausted.

A recently found manuscript of Buck Colbert Franklin (1879-1960) tells his personal story.  He was a lawyer whose office was burned down.  He set up shop under a canvas tent.  He said no fire department ever came.  When the city tried to prohibit the Blacks from rebuilding, he fought the case all the way to the Supreme Court. According to Franklin, by 1925, Greenwood was again a thriving Black business district. Others disagree and say it never recovered. Today the Black Wall Street Memorial has been established so as not to let this crime be forgotten again.  https://blackwallstreetmemorial.comMay 31 was the deadline for purchasing a brick in the Wall.

International Lawsuit

Due to the failure of the lawsuits in the United States, a claim was filed on October 26, 2005 in the Inter-American Commission on Human Rights, Organization of American States by Global Rights and Charles Ogletree of the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School on behalf of the victims of the riot.

The United States has not signed the Inter-American Convention on Human Rights but as members of the Organization of American States, we are bound by the Declaration of the Rights of Man (sic) and thus subject to the jurisdiction of the Commission.  Such a case can only be filed when all other remedies have been tried and failed as they have here.  The complaint alleges that the riot was part of a broader pattern of systemic racial discrimination and the victims were denied any remedy. Electronic copy available at: http://ssrn.com/abstract=993646

The claimants argue that there is no statute of limitations (timeline) on international crimes.  Further, a statute of limitations cannot run before an effective remedy is available.  U.S. domestic law cannot undermine the rights of the Declaration, and the rights violated are protected in the Declaration and other treaties.  The U.S. has a legal duty to prevent, investigate, and punish human rights crimes.  The claim charges that the victims’ rights to life, liberty and security were violated; they were discriminated against on race; their homes were invaded; their health and well-being attacked; their legal rights denied; their property destroyed; and they were arbitrarily arrested.

A second line of argument is that the crimes committed in 1921 are violations of jus cogens (the principles that form the norms of international law and cannot be set aside).  These are norms prohibiting racial discrimination and, as such, are not subject to any statute of limitations.  They are also crimes against humanity that likewise have no statute of limitations.

The U.S. government responded that the victims should have filed in 1921. Of course they did and got nowhere. The complainants’ response to the U.S. answer  was filed in 2007. That document can be downloaded from The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=993645

In addition to the arguments above, the response noted that the violations described did not end in 1921 but are continuing harms to this day so the litigation is still ripe. In 1921, the victims could not gather the evidence needed because of the government’s successful cover-up of its pivotal role in the riots.  The schoolbooks in Oklahoma continue to erase the riot from the State’s history or to misrepresent governmental involvement.  These international cases take a very long time to resolve and many if not all of the victims will have died before they see a resolution.

2001 Tulsa Race Riot Commission

The Commission found that Tulsa’s Klan chapter was one of the nation’s largest and most powerful. Many of the biggest men in business and government were members. They moved quickly to hide evidence. Victims were buried in unmarked graves. Documents vanished. They sought to eliminate the event from history and nearly succeeded. People born and raised in Tulsa, including the Mayor in 1996, said he had never heard of it.

The report finally released in 2001 revealed information that had never been made public before.  Despite that and the legislatures adoption of most of the report, the city and State have not abided by the recommendations that reparations should be made. The failure of the government to admit its role means healing cannot begin and the Black community continues to suffer.

Reparations

The National Commission on African American Reparations,(NAARC) https://ibw21.org/reparationwas established in April 2015.  The NAARC is a group of distinguished professionals from across the country with outstanding accomplishments in the fields of law, medicine, journalism, academia, history, civil rights and social justice advocacy. They are united in a common commitment to fight for reparatory justice, compensation and restoration of African American communities that were plundered by the historical crimes of slavery, segregation and colonialism and that continue to be victimized by the legacies of slavery and American apartheid. Convener of the NAARC is Dr. Ron Daniels, veteran civil and human rights activist and Distinguished Lecturer Emeritus, York College, City University of New York.

Reparations and reparative justice are more than money but require systemic change from local to national.  Such changes incude in health and mental health, redlining, educational segregation, employment discrimination, racial profiling, mass incarceration, and a myriad of injustices from four centuries of enslavement, violence, and abuse. Some suggestions are that Blacks are automatically registered to vote when they turn 18, all get free college, and confederate iconography is removed.  Some of that has happened over the last few weeks.

As Brian Stevenson from the Justice Initiative made clear, in every other kind of law, we require a remedy – in tort, tax, contract, or criminal – the wrongdoer has to do more than say “I won’t do it again.” They have to compensate the injured person for what they did and often have to pay punitive damages as well to send a message to others that they should not think about doing it either.

The Rosewood Massacre is an example. Rosewood was a Black town in rural Levy County, Florida that was destroyed during the first week in January in 1923 by a racially motivated white riot.  At least six Blacks and two whites were killed though estimates have been up to 150.  The town was destroyed like Greenwood.

Before that, it had been a quiet, primarily Black, self-sufficient small town.  In December 1922 a white woman in nearby Sumner claimed she had been assaulted by a Black drifter, a story as old as slavery and continuing up to this day. They lynched a Rosewood resident who was undoubtedly innocent.

The story, like Greenwood, had been forgotten until the 1980s when several major media outlets covered it.  Survivors and their descendants sued the state and were far more successful than the Greenwood victims. In 1993 the Florida Legislature commissioned a report and as a result, the state was the first to compensate survivors and their descendants for damages due to racial violence.  It can be done and Oklahoma should do it.

Congresswoman Sheila Jackson Lee’s bill:  H.R. 40

The purpose of H.R. 40 is to examine the event and legacy of slavery and make recommendations for compensation.  It was filed by Congresswoman Sheila Jackson Lee  on January 3, 2019. The description of the bill is:

Commission to Study and Develop Reparation Proposals for African-Americans Act

This bill establishes the Commission to Study and Develop Reparation Proposals for African-Americans. The commission shall examine slavery and discrimination in the colonies and the United States from 1619 to the present and recommend appropriate remedies. Among other requirements, the commission shall identify (1) the role of federal and state governments in supporting the institution of slavery, (2) forms of discrimination in the public and private sectors against freed slaves and their descendants, and (3) lingering negative effects of slavery on living African-Americans and society.

Official Title as Introduced

To address the fundamental injustice, cruelty, brutality, and inhumanity of slavery in the United States and the 13 American colonies between 1619 and 1865 and to establish a commission to study and consider a national apology and proposal for reparations for the institution of slavery, its subsequent de jure and de facto racial and economic discrimination against African-Americans, and the impact of these forces on living African-Americans, to make recommendations to the Congress on appropriate remedies, and for other purposes.

On January 3, 2019, the bill was introduced into the House, referred to the House Committee on the Judiciary and then the Subcommittee on Constitution Civil Rights and Civil Liberties.  On June 19, 2019 a hearing was held. Congressmember Lee plans to hold another on Juneteenth in 2020.  The need grows more pressing day by day, murder by murder.  What is significant is that the bill doesn’t question whether slavery was unjust, cruel, brutal and inhumane – it’s clear it was. It doesn’t ask whether reparations should be paid, only how much and to whom and in what manner.

The bill has 127 co-sponsors in the House, all Democrats.  The only Arizona representative is Raul Grijalva who signed on July 12, 2019.  We need to contact the other Democratic representatives and insist they co-sponsor this bill before Juneteenth.  (Gallego, O’Halleran, Kirkpatrick, Stanton). The companion bill in the Senate is S. 1083 introduced by Cory Booker with 16 co-sponsors, 15 Democrats and one independent.  It was referred to the Judiciary on April 9, 2019.  No Arizona Senator is a co-sponsor.

The conclusion to this sad story is yet to be written.  But there are actions we can take to move it forward.  Please contact your Congressional representative and ask her/him to become a co-sponsor to H.R. 40.  Sign the change.org petition to support reparations for Greenwood. www.change.org/tulsareparations Learn about the National Commission on Reparations and join in support.