In re African-American Slave Descendants Lit.

• Decision Date: 26 January 2004
• Docket Number: No. MDL 1491.,No. 02 C 7764.,MDL 1491.,02 C 7764.
• Citation: 304 F.Supp.2d 1027
• Court: U.S. District Court — Northern District of Illinois
• Parties: In re AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION

304 F.Supp.2d 1027

In re AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION

No. MDL 1491.

No. 02 C 7764.

United States District Court, N.D. Illinois, Eastern Division.

January 26, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lionel Jean-Baptiste, Jean-Baptiste and Raoul, Evanston, IL, Benjamin Obi Nwoye, Mendoza & Nwoye, P.C., Chicago, IL, Roger S. Wareham, Thomas Wareham & Richards, Brooklyn, NY, Bryan R. Williams, New York, NY, Morse Geller, Forest Hills, NY, Diana E. Sammons, Nagel, Rice, Dreifuss & Mazie, Livingston, NJ, Pius Akamdi Obioha, Law Offices of Pius A. Obioha, New Orleans, LA, Gary L. Bledsoe, Law Offices of Gary L. Bledsoe, Austin, TX, Harry E. Cantrell, Jr., Cantrell Law Firm, New Orleans, LA, Dumisa Buhle Ntsebeza, Cape Town, South Africa, for plaintiff.

Andrew R. McGaan, Douglas Geoffrey Smith, Kirkland & Ellis LLP, Thomas F. Gardner, Susan Lynn Winders, David Michael

Kroeger, Jenner & Block, LLC, Chicago, IL, Heidi K. Hubbard, Andrew W. Rudge, Williams & Connolly, Washington, DC, Christina M. Tchen, Ryan James Rohlfsen, Skadden Arps Slate Meagher & Flom, LLP, Chicago, IL, Gary DiBianco, Andrew L. Sandler, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, Jack E. McClard, Maya M. Eckstein, Hunton & Williams, Richmond, VA, Frank E Emory, Jr., Hunton & Williams, Charlotte, NC, James A. Fletcher, Fletcher & Sippel, LLC, Michael J. Barron, Chicago, IL, Debra Torres, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, John Niblock, O'Melveny & Myers, Washington, DC, for defendant.

OPINION AND ORDER

NORGLE, District Judge.

Before the court is Defendants' Joint Motion to Dismiss. For the following reasons, the motion is granted.

I. INTRODUCTION

This case arises out of the institution of human chattel slavery as it existed in the North American colonies and the latter-formed United States of America. The allegations in Plaintiffs' First Amended and Consolidated Complaint ("FACC" or "Complaint") retell the generally acknowledged horrors of the institution of slavery, and the malignant actions of the sovereigns, entities and individuals that supported that institution. Plaintiffs' Complaint asks the courts to reexamine a tragic period in our Nation's history and to hold various corporate defendants liable for the commercial activities of their alleged predecessors before, during and after the Civil War in America. Defendants acknowledge that slavery marked a deplorable period in our Nation's history. However, they assert that Plaintiffs' claims, which arise from that period, cannot be heard in 2004 in a court of law.

II. HISTORICAL OVERVIEW OF SLAVERY IN AMERICA

In essence, Plaintiffs' Complaint is a claim for reparations rooted in the historic injustices and the immorality of the institution of human chattel slavery in the United States. To elucidate the nature of this institution, the court undertakes an analysis, necessarily brief, of the historical events surrounding slavery, including the monumental event that ended the institution of slavery in the United States, the Civil War.

A. A Definition of Slavery

In January of 1865, General William Tecumseh Sherman of the Union forces, along with Secretary of War Edwin Stanton, met with former slaves. Ira Berlin, Generations of Captivity: A History of African-American Slaves 2 (2003). The conversation focused on two questions: from the point of view of the freed slave, what was the nature of slavery, and what was the nature of freedom? Id. Garrison Frazier, a sixty-seven year old former slave, explained that "[s]lavery ... is receiving by the irresistible power the work of another man, and not by his consent." Id. Freedom, Frazier indicated, "is taking us from the yoke of bondage, and placing us where we could reap the fruits of our own labor, take care of ourselves and assist the Government in maintaining our freedom." Id. Frazier's definition reminds us of the essential unfairness of slavery: the slaveowner takes, by sheer violence and force, the slave's freedom and labor in order to place himself at the top of a society's economic hierarchy. Id. at 3.

B. A Brief History of Slavery in the New World

While slavery seems to have been a part of human history since the "dawn of civilization," African slave trafficking in the New World began in the year 1502. Robert William Fogel, Without Consent or Contract: The Rise and Fall of American Slavery 17-18 (1991). Europeans were historically drawn to Africa for two reasons: gold and slaves. Edward Reynolds, Stand the Storm. A History of the Atlantic Slave Trade 28 (1985). Those who journeyed to Africa seeking slaves for the New World sometimes simply kidnapped individuals who appeared before them by happenstance. Herbert S. Klein, The Atlantic Slave Trade 103 (1999). However, historical evidence indicates that a great deal (perhaps even the majority) of the slave trade was made possible by African leaders who sold African slaves to European slave traders. Id.; see also Reynolds, supra at 33-46 (providing a detailed explanation of the African slave market, and the economic mechanisms used to facilitate the sale of slaves from local African chiefs to slave traders). Local African leaders acquired these slaves in several different ways: captives were taken in local wars or raids, those imprisoned for crimes or indebtedness were often forced into slavery, and large states would exact slaves as "tribute" from smaller tribes under their control. See Klein, supra at 117.

Upon their sale to slave traders, slaves were shipped to the New World in what became known as the "Middle Passage." Slaves' heads were shaved, their bodies were branded and stripped naked, and their ankles were shackled. See Reynolds, supra at 47. They were then led into the holds of slave ships, where they were laid down alongside each other for the journey to the New World. Id. at 48. The prevalence of disease, lack of sufficient food and water, and constant confinement took its toll, with up to one-quarter of the slaves on any given ship dying during the "Middle Passage." Id. at 48-53.

African slaves in the New World were initially sold into small sugar production operations in Brazil, Mexico, Peru, Cuba, Haiti, Jamaica, the British West Indies, and Dutch Guyana. Id. at 20-21. Other African slaves were set to work producing such crops as cocoa, coffee, hemp, tobacco and rice. Id. at 21. By the 1680s, the small farm with its traditional methods of operation had given way to more efficient means of production, and the concept of the large "plantation" was born. Id. at 23. Inefficient methods of farming had been "replaced by large gangs of slaves, working in lock step, and moving methodically across vast fields." Id. With this change came an increase in the size of slave operations. By the early part of the 1800s, many plantations in Jamaica and the West Indies contained up to two hundred and fifty slaves. Id.

Slavery in North America began more slowly than slavery in South America and the Caribbean. In 1680, there were 7,000 slaves in the British North American colonies. Id. at 29. Slavery as an economic institution in North America, however, rapidly gained momentum over the next fifty years. By the 1730s, roughly 120,000 slaves had been brought to the colonies and forced to work in such industries as farming, tobacco production and domestic service. Id. By the middle of the 1700s, the institution of slavery in the United States began to concentrate in the Southern states. It was in these states that plantations emerged, ready to take advantage of the inexpensive labor slaves provided in the production of such crops as tobacco, rice, sugar and cotton. Id. at 31.

During the years 1780 to 1810, the rapid expansion of these industries was accompanied by a significant increase in the number of slaves imported from Africa. Id. at 32. The increase in the importation of slaves, along with the natural increase in the slave population, soon gave the United States a dubious distinction. By 1825, the population of slaves in the United States was roughly 1,750,000, making the United States the "leading user of slave labor in the new world." Id. at 33. Slavery had become the dominant economic force in the Southern United States. Historians cite numerous factors for this development, but it seems that two factors are the most significant. First, slave labor was inexpensive compared to other sources of labor. Id. at 34. Second, slave masters in the Southern states were willing to expend an "enormous, almost unconstrained degree of force ... to transform ancient modes of labor into a new industrial discipline." Id. This "new industrial discipline" was based on a division of labor scheme, enforced by brutality, and legally sanctioned.

C. Slavery and American Law

This violent and oppressive system was supported by the United States legal system for a long period of time. Thus slavery was historically more than simply a social and economic institution. It was also an established legal institution.¹ For instance, Article I, Section 9 of the United States Constitution has been traditionally understood to limit Congress' power to regulate slavery.² It is thought that this Article meant that Congress was denied the power to regulate the "internal slave trade, leaving only importation from Africa to be prohibited after 1808." Walter Berns, The Constitution and the Migration of Slaves, 78 Yale L.J. 198 (1968). Also, in 1850, Congress passed a statute supporting the rights of slaveowners to capture escaped slaves. The Fugitive Slave Act provided that:

[W]hen a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such labor or service shall be due ... may pursue and reclaim such fugitive person ... [and may] take and remove...