The claims of Black Americans for reparations for the injuries of slaveholding, Jim
Crow era discrimination and race-motivated violence and dispossession are ongoing,
and have created a new area of legal doctrine. This week, a state-appointed task force
in California issued its long-anticipated report recommending compensation for an
array of atrocities and harms, which if adopted in its entirety could require payment of
approximately $800 billion.
Novel legal theories based on historical and group harms show promise, but there are
also long-established theories that provide analogies, and may allow for recovery
with less risk of reversal upon judicial review. In addition, advocates may utilize the two-
prong approach of litigation paired with legislative pressure. As the battle for same-sex
marriage and the reversal of reproductive health protection have illustrated, for better
or worse, such a dual strategy can be effective in moving a policy agenda.
Reparations and restitution have often been used interchangeably, but the terms have
different meanings. Derived from international human rights law and norms,
reparations redress violations of human rights by providing a range of material and
symbolic benefits to victims or their families as well as affected communities.
Remedies include compensation, rehabilitation, restitution, and the cessation of continuing violations, truth-seeking, search for the disappeared person or their
remains, recovery, reburial of remains, public apologies, judicial and administrative
sanctions, memorials, and commemorations.
Restitution is one of the subcategories of reparations. According to the US High
Commission on Human Rights, restitution
restore[s] the victim to their original situation before the violation occurred, e.g.restoration of liberty, reinstatement of employment, return of property, return to one’s place of residence.
Restitution has been employed in a variety of circumstances, and has been sought
successfully by the families of Holocaust victims On June 30, 1998 thirty-nine
countries signed a joint pledge to identify art stolen from Holocaust victims and to
compensate their heirs. An advisory panel recommended the return of 6,292 art
objects to their legal owners, most of whom were Jews. The famed “Woman in Gold” by Gustave Klimt were among the works that were returned to descendants who could prove their relationship to a victim.
As he described in a recent visit to students at the University of Miami Law School,
the model of restitution was one legal and policy precedent on the mind of George
Fatheree III, an attorney with Sidley & Austin, as he considered how to counsel the
descendants of the family who had owned, and been wrongfully deprived of Bruce’s
Beach, a recreational property on the coastline in Los Angeles County.
The battle of the Bruce family to reclaim their family’s beach property had been hard
fought for almost 100 years. Located in the present-day Manhattan Beach near Los
Angeles, Bruce’s Beach housed Bruce’s Lodge, a refuge for Black tourists in Southern
California, free from the rampant discrimination and harassment present at the time.
Willa and Charles Bruce took ownership of the property in 1912 and faced obstacles
placed by the local government at every turn. The police limited parking on the beach
to ten minutes, and local business owners no-trespassing signs forced patrons to walk
half a mile to access the lodge. The Ku Klux Klan vandalized the properties, and set
fires to frighten beachgoers and the owners of the popular resort.
Still Bruce’s Beach thrived, attracting a huge number of patrons. Then in 1924, the
City of Manhattan Beach seized the beach using its power of eminent domain. It
claimed the area was needed for development as a public park. Plat maps of the period
show that the only properties to be taken under eminent domain were not contiguous,
but they did share one thing in common—they were all owned by the Bruce family and
used for its resort purposes.
Fatheree came to learn of Bruce’s Beach after working with a group of clients to
acquire a trove of documents and photographs detailing Black social history in the U.S.
The Bruce’s Beach story particularly disturbed him, and while the Bruce family heirs
already were represented by legal counsel, they agreed to work with him in an effort to
get the land back.
While litigation crawled along, a remarkable development allowed speedy resolution
of the claim. In Summer 2020, after the murder of George Floyd and the expressions of
grief and anger that followed nationally, a member of the Los Angeles Board of
Supervisors became aware of the land takings at Bruce’s Beach. The Board of
Supervisors was persuaded to unanimously vote to return the beach property to the
descendants of the Bruce family.
A state bill, SB 796, was introduced to return the property to the descendants.
Through Fatheree’s ongoing work crafting details of the bill, including provisions to
insulate the heirs from enormous tax bills, tolling of statutes of limitation, and other
steps, the bill was enacted, and the Bruce family heirs finally received their land back
in June of 2022.
As Mr. Fatheree stated "There was really no precedent or playbook for what [the effort
was] trying to accomplish.” Despite the long history of human rights abuses against the
Black American community in this country, this is the first instance of land repatriation for the
victims of anti-Black racism in the United States, and restored intergenerational wealth
that had wrongfully been taken by state action from the heirs. It was important, he
explained, to get the statute and settlement “exactly right,” so as to not risk foreclosing
other groups similar claims.
No two situations are the same. The case for restitution of particularized property and,
on a more modest reparations payments for slave labor and human rights crimes to
relatives of victims of the Holocaust was aided by the massive post-war settlement
with Germany over an array of war crimes. The descendants of Japanese-Americans
interned during the Second World War have received monetary settlements and an
apology from the US Government, but the settlements were not on par with their
financial losses in current dollar value. The scale of compensation for crimes against
Black enslaved persons, victims of lynching, massacre, or property expropriations are
more massive but also harder to particularize.
Reparations for enslavement face substantial legal barriers including standing and
timeliness. Professor Eric Miller’s statement to a Congressional committee examining
the challenge of reparations explains why these claims are difficult to successfully
prosecute:
In suing on behalf of formerly enslaved people, for example, all formerly enslaved persons have been dead for at least a generation; no Americans living today have directly injured African Americans by enslaving them; descendants of slaves cannot often cannot show harms directly attributable to contemporary individuals; and it is difficult to determine who should get what and how much
Statement Before the House Judiciary Committee Subcommittee on the
Constitution, Civil Rights, and Civil Liberties Hearing on HR40 and the Path to
Restorative Justice June 19, 2019
The Bruce’s Beach case shows how, in a case where the harm and the proper plaintiffs
can be particularized, a two-pronged effort that combines litigation with political
pressure may at times be more effective than litigation alone.
It is useful to compare the Bruce’s Beach case to other efforts in this space. A
multidistrict case against the U.S. Department of Agriculture for discrimination in
loans to Black farmers ; litigation to obtain reparations to the families of victims of the
Tulsa Race Massacre; a modest settlement authorized by the Florida Legislature to the
families of victims of the Rosewood Massacre in rural Florida and an agreement by
Georgetown University to make partial amends for the sale of 272 enslaved people
during early years by providing admissions preferences to the descendants of those
affected have been the result of protracted efforts. These cases have been hard-fought,
and in some instances there have been countersuits.
Of these well-publicized examples, the claims by victims and their descendants in the
Tulsa Race Massacre provide the closest analogy to the Bruce’s Beach case. The
settlement with the family of victims of the Tulsa massacre relied, in part, on a report
commissioned pursuant to an act of the Oklahoma legislature, acknowledgment of
state action in conjunction with the Tulsa murders; and the fact that there are today
descendants of the victims who can directly trace their family ties to those victims.
Advocates for reparations should take note of the foundational benefits of working on
behalf of the claims of persons with specifically identifiable takings and land theft
claims; and Fatheree’s insight that state legislative action can be a useful complement
to litigation, perhaps speeding the resolution in that case.
The heirs to the Bruce family in 2023 resold the land at Manhattan Beach to LA County for $20 million. The step has attracted ire from some, who viewed the victory as one which
should be valorized, and its fruits preserved on behalf of the entire Black American
community. But with counterlitigation threatened, unfriendly neighbors lurking still,
and the barrier to development due to state and national coastal development
regulation, the family, who no longer live in California, chose to monetize the asset:
just what owners do.
In this, their actions are very similar to the families who received back Nazi-looted art;
in almost all cases, the works were promptly resold.
The remarkable result in the Bruce’s Beach case opens the door for other efforts by
Black Americans to receive land back in areas across the country by creating a
pathway—combining legal advocacy with the lobbying of local officials—for those
efforts to be successful. Eventually, it could be a cornerstone for a wider settlement of
historical claims. While this model is not a one-size-fits-all solution, and any
successful effort is going to require intimate knowledge of local policy, the success of
the Bruce family heirs offers groups and individuals across the country a pathway
towards reparations for the injustices they suffered.