Title

The Breach of the Common Law Trust Relationship between the United States and African Americans – A Substantive Right to Reparations

Abstract

Domination and elaborate control of Africans in colonial America, and later the United States, were exerted to provide the requisite framework for the economically profitable Trans-Atlantic slave trade. Proponents of slavery characterized the aims of slavery in pseudo-paternalistic terms to “train” and “civilize[e] the untutored savage.” Even after the formal end of slavery, the U.S. and local governments continued to exercise its domination and elaborate control by enforcing a national system of racial segregation and discrimination. That system of government-sanctioned laws was so pervasive and commonly accepted that it has been personified as “Jim Crow.” As a result, racial hierarchy is firmly entrenched in American society. That hierarchy, and the lingering vestiges of slavery, is evident in current American education, justice and economic systems. The nearly 400 year old injury caused by institutionalized racial supremacy and discrimination in America has yet to heal. Reparations as a remedy for those injustices have been sought for nearly as long.

This Article aims to add to the reparations scholarship through an exploration of how the common law trust relationship created between the United States government and African Americans is similar to the government’s common law trust relationship with Native Americans. That common law trust relationship can and should be a vehicle for establishing an equitable right to African American post-slavery reparations claims. In order to secure those damages, a viable waiver of sovereign immunity must be established. This Article will also explore the establishment of a waiver of the government’s sovereign immunity by the United States for the disbursement of slave reparations. The existing Native American trust case law supports the argument that a common law trust relationship and any subsequent breach of those resulting duties provide plaintiffs a right to an accounting from the government as well as a substantive right to monetary damages.

Keywords

Slavery, Reparations, Sovereign Immunity, Common Law Trust Relationship, African American

Publication Date

2014

Document Type

Article

Place of Original Publication

New York University Review of Law & Social Change

Publication Information

39 New York University Review of Law & Social Change 525 (2015)

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COinS Ayesha Bell Hardaway Faculty Bio