Amicus Curiae Brief — Alexander v. Oklahoma

No. 04-1198

IN THE

Supreme Court of the United States

John Melvin Alexander, ef a/.,

Petitioners,

State of Oklahoma, et al.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

Brief of Amici Curiae National Lawyers Guild,

National Conference of Black Lawyers,

Center for Constitutional Rights and

National Association for the Advancement of

Colored People

Supporting Petition for Certiorari

Michael Avery

Counsel of Record

National Lawyers Guild

143 Madison Ave., 4" floor

New York, NY 10016

617-573-8551

Taylor Pendergrass

National Lawyers Guild

4710 Table Mesa Drive #B

Boulder, CO 80305

303-442-0802

Jeff Fogel

Center for Constitutional Rights

666 Broadway, 7th Floor

New York, NY 10012

(212) 614-6464

Ron Isaac

National Conference of Black

Lawyers

818 Malibu Drive

Silver Spring, MD 20901

202-326-3231

Angela Ciccolo

Interim General Counsel

Victor L. Goode

Assistant General Counsel

NAACP |

4805 Mt. Hope Drive |

Baltimore, Maryland 21215-

3297

(410) 580-5790

TABLE OF CONTENTS

TABLE OF AUTHORITIES. .........0...00.ccecccccccceeececcccc ili

INTEREST OF THE AMICI CURIAE.........0.6600-c000000000-...... l

SUMMARY OF ARGUMENT. ............cccccccsccescceececececccun. 2

PIE a vies suai ha eee ot Sy 2

NE aiiisatestiicce ts Lae el Soc sc 2

II. THE REALITY OF THE CONTINUING

EFFECTS OF RACISM AND WHITE

SUPREMACY IN THE UNITED STATES

DEMAND THAT THIS COURT REVIEW THE

FINDING OF THE COURTS BELOW THAT

THE EXCEPTIONAL CIRCUMSTANCES THAT

JUSTIFIED TOLLING THE STATUTE OF

LIMITATIONS WERE TERMINATED WITH

THE END OF THE JIM CROW ERA................00........... 2

A. Resolution of the Question of When Plaintiffs

Might Reasonably Have Been Expected to File

Suit Requires an Analysis of the Role of White

Supremacy in the Exceptional Circumstances in

snc RT oto) Pav es TON eae ea RED 3

B. The End of The Jim Crow Era Was Not Sufficient

to Dispel The Extraordinary Circumstances That

Prevented Plaintiffs From F iling This Lawsuit................... 5

III. THE DEFENDANTS’ CONSTRUCTION AND

PERPETUATION OF A FALSE HISTORICAL

NARRATIVE OF THE TULSA RACE RIOT,

IN THE LIGHT OF THE HISTORY OF RACISM

IN AMERICA, CREATED EXCEPTIONAL

CIRCUMSTANCES THAT WERE NOT

DISSIPATED UNTIL THE PUBLICATION OF

THE OFFICIAL REPORT OF THE TULSA

il

RACE RIOT COMMISSION. .........60.--c00cc00-000-00- 10

A. The Effects of Historical Narrative and Trauma

on Historical Memory.............00..ceccsccececcceeeeceeecccsc... 10

B. Truth Commissions Play an Essential Role in

Deligitimizing False Historical Narratives

Advanced by the State.........ccecccsecccccesceeeeeeecccc. 15

C. International Law Recognizes That The Effects

of Trauma and Historical Memory Require

Suspension of Statutes of Limitations........................... 18

BV. CONCLUSION... csi pakplana ee Gee 19

ill

TABLE OF AUTHORITIES

FEDERAL CASES

Alexander v. Oklahoma, 382 F.3d 1206 (10th Cir. 2004)..........15

City of Lockhart v. United States 460 U.S. 125,

IIIT ilcisnishcseblinsedineuibenedduhdishadadendessebnctinamacideeseaheneisiassbianenne 4

Grutter v. Bollinger, 539 U.S. 306 (2003) ........ccccccceceececeeseees 4,7,8

Hunter v. Underwood, 471 U.S. 222 (1985) v.ccccccccccccsseceececeeeeeeeoees 4

Louisiana v. United States, 380 U.S. 145 (1965) ....ccccccccccccccceseseees 4

Loving v. Virginia, 388 U.S. 1 (1967) .......cccccccccscsscsssesecesseeseceesesees -

Regents of the University of California v. Bakke, 438 U.S. 265

SunTairivinsticicsadashtealdesehaneabcipwasnidinbesdcddanibusistidains, distiibciatnanenihtiaciansnii 7

Reno v. Bossier Parish School Bd., 528 U.S. 320 ED ccctcnintobnas 4

United States v. Mississippi, 380 U.S. 128 (1965) ........cccccececeseeeees -

OTHER AUTHORITIES

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders, (4" ed. 1994) (DSM I'V)......... 1]

Amnesty International, Amnesty International Report

ST iis sstndhsveded obnantsskonsoushsncsenseaedbeesoessnauanse 17

Taunya Lovell Banks, “Exploring White Resistance to Racial

Reconciliation in the United States,” 55 Rutgers L. Rev.

DMM spiaditeaskbaddanadndSaeisasneesenkesidcahassnxeovad cos 8-11

Vv

David Colbun, Rosewood and Historical Memory, Public

lecture at the University of Colorado recorded by counsel

UE Bi asain nisnd ns scitasdnbcicen cnath dnnxdtcinceusiviusienstss 12

Harlon Dalton, Racial Healing, Confronting the Fear Between

I Ee Te Cc incakcainsaiccsisceasdamsnaekccdatannsazasen 5

European Convention on the Non-Applicability of Statutory

Limitations to Crimes against Humanity and War Crimes,

SESSA, 1S ELBE. SOR, BOR, 2a, TOP ecsiiccsnvcvccnnccsessascscases 19

John Hope Franklin, The Color Line: Legacy for the Twenty-

FE CF isd donaicinsitasenstbakeiiaicasiianesicseatal 6

Jonathan M. Golding, ed. Jntentional Forgetting (1998)...........11

Andrew Hacker, Two Nations, Black and White, Separate,

ROTTER, CRA Ca v0 tds ad cnsktcinucsscisstindendinaicenstel 6

Judge Higginbothom, Shades of Freedom: Racial Politics

and Presumptions of the American Legal Process (1996)....9-10

Sherrilyn A. Ifill, “Creating a Truth and Reconciliation

Commission for Lynching,” 21 Law & Ineq. (2003)........13-14

Ts BEE, FEE BTN COD ons sa nicds esa dcnscnncctasassassecanen 9

Rama Mani, Beyond Retribution: Seeking Justice in the

EE re iii oid ch incdisnsesnccuaminenscnassssenncen 15-16

Report of the Chilean National Commission on Truth and

IRIE: TINE ain dnnncuscsnnnehaasenucctinnssninnn 16-17

Randall Robinson, The Debt (2000)................ccccceeeeeeeeneeeees 9

Vv

Carl T. Rowan, The Coming Race War in America

SPs xcsisusasnnnkeasiedeseneapeaseiiaasaientnen aaa passim

John Torpey, ed., Politics and the Past: On Repairing

Historical Injustices (2003)...........cccccccscccccsccccccccccccsecce 15

United Nations Commission on Human Rights: Study

concerning the right to restitution, compensation and

rehabilitation for victims of gross violations of human

rights and fundamental freedoms. E/CN .4/Sub.2/1993/8

GO Gi, Sia ike Santvcadnceavaaasacc poised en 1]

United Nations Convention on the Non-Applicability of

Statutory Limitations to War Crimes and Crimes Against

Humanity. 40 UN Doc. a/7218........... 0. cece cc ecec eee eees 18-19

INTEREST OF AMICI CURIAE!

The National Lawyers Guild is a national non-profit legal

and political organization of lawyers, law students, legal workers

and jailhouse lawyers dedicated to using the law as an instrument

for attaining social justice. Founded in 1937 as an alternative to

the then racially segregated American Bar Association, the Guild

has been a major participant in the struggle for racial justice in the

United States and has historically provided legal services to the

civil rights movement and anti-racist activists.

The National Conference of Black Lawyers (NCBL) was

founded in 1968 to serve as the legal arm of the Black Liberation

Movement. It co-founded the National Coalition of Blacks for

Reparations in America (N’COBRA) in 1989. The eradication of

the vestiges of slavery cannot be accomplished absent full

disclosure of the resistance to racial equality experienced in the

public and private sectors. Alexander v. The State of Oklahoma is

an opportunity for the United States Supreme Court to prevent an

abuse of authority and require full disclosure of the role of the

state in the 1921 destruction of the homes and businesses as well

as the lives of the residents of “Black Wall Street” in Tulsa,

Oklahoma.

The Center for Constitutional Rights is a national non-

profit legal, educational and advocacy organization dedicated to

advancing and protecting the rights guaranteed by the United

States Constitution. Founded in 1966 during the Civil Rights

Movement, the Center has litigated numerous landmark cases on

behalf of civil rights activists (including H. Rap Brown and the

Chicago Seven). The Center recently succeeded in winning a

settlement from the Street Crimes Unit of New York Police

Department implementing an anti-racial profiling policy.

The National Association for the Advancement of Colored

People (NAACP), established in 1909, is the nation’s oldest civil

rights organization. The fundamental mission of the NAACP is

' This brief is filed with the written consent of all parties. No counsel for a

party authored the brief in whole or in part and no person or entity, other than

amici, their members and counsel made a monetary contribution to the

preparation or submission of the brief.

2

the advancement and improvement of the political, educational,

social, and economic status of minority groups; the elimination of

racial prejudice; the publicizing of adverse effects of

discrimination; and the initiation of lawful action to secure the

elimination of racial and ethnic bias. The NAACP has a long

history of working to address violence against African Americans

and to promote fairness in the administration of justice.

SUMMARY OF ARGUMENT

The doctrine of equitable tolling requires that the statute

of limitations be tolled in the case of extraordinary circumstances,

which existed in this case. The lower courts, however, failed to

recognize the broad and persistent consequences of racism and

white supremacy that affected the plaintiffs. By finding that

extraordinary circumstances terminated shortly after the Jim Crow

era, the Court failed to recognize that these conditions did not

terminate at that time.

The pervasive racism that dominated American society

during and after the time of the Tulsa Race Riot also engendered

and enabled the creation of a “false historical narrative” which

erased from historical memory the plaintiffs’ cause of action. In

conjunction with the recognized traumatic effects of human rights

abuses on the victims, the false narrative concealed the cause of

action from plaintiffs until the issuance of the Tulsa Race Riot

Commission Report in 2001.

As recognized in international jurisprudence and urged by

amici here, statutes of limitations should be tolled in cases of gross

human rights violations like the events in Tulsa in 1921.

Extraordinary circumstances persisted well beyond the Jim Crow

Era and prevented plaintiffs from filing their cause claims prior to

the issuance of the Commission Report in 2001. The question of

whether these realities amount to extraordinary circumstances is a

question that should have been answered by a jury, and the case

should be remanded for such a determination.

ARGUMENT

I. INTRODUCTION

The plaintiffs, survivors and descendants of victims of the

1921 Tulsa Race Riot, filed this action to obtain reparations for

Saale

Preets

3

their losses as a result of the riot. The action was brought against

government defendants who acted in concert with a white mob

that destroyed the homes and businesses of African-Americans in

Tulsa over forty square blocks of the city and caused the death of

possibly as many as three hundred people. The action was filed

after the official Commission appointed by the Oklahoma

Legislature filed its Report in 2001, which for the first time

documented the role of the state’ in the racial violence.

The defendants pleaded the statute of limitations and

argued that the suit was not timely. Although the courts below

recognized that extraordinary circumstances prevented plaintiffs

from filing the suit for decades after the Tulsa Race Riot, the

courts held that suit should have been filed after the Jim Crow Era

came to an end at some undetermined time in the 1960’s, and

granted judgment to the defendants.

Amici believe that it is essential for the Supreme Court to

review this exceptionally important case and to reverse the

decision of the Court of Appeals so that a Jury may hear the case.

Il. THE REALITY OF THE CONTINUING EFFECTS

OF RACISM AND WHITE SUPREMACY IN THE

UNITED STATES DEMAND THAT THIS COURT

REVIEW THE FINDING OF THE COURTS BELOW

THAT THE EXCEPTIONAL CIRCUMSTANCES

THAT JUSTIFIED TOLLING THE STATUTE OF

LIMITATIONS WERE TERMINATED WITH THE

END OF THE JIM CROW ERA.

A. Resolution of the Question of When Plaintiffs Might

Reasonably Have Been Expected to File Suit

Requires an Analysis of the Role of White

Supremacy in the Exceptional Circumstances in

This case.

The District Court concluded _ that extraordinary

circumstances had denied plaintiffs “a true opportunity to pursue

their legal rights,” but concluded that because the Jim Crow era

had ended in the 1960’s, the statute of limitations had run before

* The term “state” is used in this context and throughout this brief to refer to the

State of Oklahoma, the City of Tulsa, and government individuals acting in their

representative capacities.

4

plaintiffs filed suit. The Tenth Circuit affirmed. Neither court

below analyzed the role of the culture of white supremacy in

creating and maintaining exceptional circumstances such as those

present in this case.

The Supreme Court itself has never engaged in a thorough

analysis of the culture of white supremacy and its impact on the

cases that come before it.’ The issue is of paramount significance

in understanding the social context in which cases that involve

race arise. The affirmative action cases in the Court in the past

three decades are the most prominent example where such an

analysis was essential, but lacking. In the absence of a thorough

understanding of this problem, the Court has been left to speculate

about when a “color blind” society might become possible. See,

e.g., Grutter v. Bollirger, 539 U.S. 306, 343 (2003).

The instant case presents the Court with a compelling

opportunity to analyze the extent to which the culture of white

supremacy survived the civil rights movement of the 1950’s and

1960’s. Amici urge the Court to grant certiorari in order to

explore these issues. Failing to come to terms with the true nature

of America’s race problem can only result in the perpetuation of

the problem. As Prof. Dalton has written:

3 Justice Marshall did analyze these problems in his opinions, but most often in

separate opinions or in dissent. See, ¢.g., Regents of the University of California

v. Bakke, 438 U.S. 265, 387 (1978). The term “white supremacy” has been used

in only 15 opinions since 1928. There was at best a brief analysis of the issue

related to the merits of the case in only a few of these opinions. Reno v. Bossier

Parish School Bd., 528 U.S. 320, 375 (2000) (Justice Breyer, dissenting, in

Voting Rights Act case); Hunter v. Underwood, 471 U.S. 222, 229 (1985) (white

supremacy was goal of Alabama constitutional convention of 1901); City of

Lockhart v. United States 460 U.S. 125, 140, n.3 (1983) (Justice Marshall

concurring and dissenting, discussing contrivances to exclude blacks from voting

prior to 1965 Voting Rights Act); Loving v. Virginia, 388 U.S. 1, 7 (1967)

(purpose of Virginia’s miscegenation statute was maintenance of white

supremacy); United States v. Mississippi, 380 US. 128, 131, 144 (1965) (white

supremacy was goal of Mississippi constitutional convention in 1890 and

continued to motivate manipulation of voting laws for next 75 years); Louisiana

v. United States, 380 U.S. 145, 149, 152 (1965) (Louisiana’s efforts to maintain

white supremacy through voting requirements from nineteenth century through

1950’s and 1960’s). In other opinions the term is used to refer to the ideology of

racist groups or the demands of anti-racist groups, the term appears merely in

connection with a citation to a previous case or is only tenuously related to the

merits of the case.

;

‘

4a

FE ee ea eee Ne hee

5

Dealing with our racial wound is very much like [dealing

with a physical wound]. Healing is a process that has

many steps. Yet we try to move too quickly from the

traumatic event to the day the bandages are removed. In

our zeal to avoid inflaming the wound, we fail to clean it

properly. We rush to close it, and do not check to see if

our stitches have held. We ignore the possibility of

infection, and convince ourselves that the occasional

oozing is nothing to worry about. We cover it with

material that is contaminated, and leave the dressing

unchanged for fear of what we may discover underneath.

And so our racial wound festers. Harlon Dalton, Racial

Healing, Confronting the Fear Between Blacks & Whites

99 (1995).

B. The End of The Jim Crow Era Was Not Sufficient

to Dispel The Extraordinary Circumstances That

Prevented Plaintiffs From Filing This Lawsuit.

The finding of the courts below that the statute of —

limitations was not tolled beyond the end of the Jim Crow era

dramatically understated the nature of the extraordinary

circumstances that precluded the plaintiffs from filing suit prior to

the publication of the Commission Report. Although the courts

below acknowledged the existence of racial intimidation, a hostile

judiciary, the power of the Ku Klux Klan, the denial by officials of

the truth of the riot, the grand jury indictment of only blacks for

the riot and the existence of Jim Crow laws, the consideration of

these phenomena was shallow and mechanistic. The Tulsa Race

Riot, the Ku Klux Klan, Jim Crow laws and other specific events

and institutions are merely manifestations of the underlying racial

dynamic in the United States, the culture of white supremacy.

They are not the problem itself.

Andrew Hacker explains the significance of the culture of

white supremacy in this way:

But as much as anything, being ‘black’ in America bears

the mark of slavery. Even after emancipation, citizens

who had been slaves still found themselves consigned to a

subordinate status. Put most simply, the ideology that had

provided the rationale for slavery by no means

disappeared. Blacks continued to be seen as an inferior

6

species, not only unsuited for equality but not even

meriting a chance to show their worth ... And in our own

time, must it be admitted at the close of the twentieth

century, that residues of slavery continue to exist? The

answer is obviously yes. Andrew Hacker, Two Nations,

Black and White, Separate, Hostile, Unequal 14 (1992).

That the racial problem in the United States runs much

deeper than the Jim Crow laws has been recognized by thoughtful

commentators and political leaders. As Prof. Derrick Bell wrote in

1987:

_ the task of equal-justice advocates has not become

easier simply because neither slavery’s chains, nor the

lyncher’s rope, nor humiliating Jim Crow signs are any

longer the main means of holding black people in a

subordinate status ... the law today does not speak from a

genuinely color-blind vantage point. Despite having

completed the vital task of eliminating Jim Crow racial

classifications, legal institutions still operate with a

perspective that remains perceptually, analytically, and

functionally color-coded. The color is white. Derrick

Bell, And We Are Not Saved, 5, 58 (1987).

Similarly the noted historian John Hope Franklin, Chair of

President Clinton’s Race Commission and a plaintiff in this

lawsuit, has reminded us that America’s racial problems will

extend well into the next century:

Writing at the beginning of this century, the distinguished

African American scholar William E. B. Du Bois asserted

that the problem of the twentieth century ‘is the problem

of the color line ...’ Without any pretense of originality

or prescience, with less than a decade left in this century, I

venture to state categorically that the problem of the

twenty-first century will be the problem of the color line.

Franklin, The Color Line: Legacy for the Twenty-First

Century, 5 (1993)

Justice Thurgood Marshall wrote:

It is of course true that some of the Jim Crow laws ...

were struck down by this Court ...Those decisions,

however, did not automatically end segregation, nor did

7

they move Negroes from a position of legal inferiority to

one of equality ... The position of the Negro today in

America is the tragic but inevitable consequence of

centuries of unequal treatment. Measured by any

benchmark of comfort or achievement, meaningful

equality remains a distant dream for the Negro.

Regents of the University of California v. Bakke, 438 U.S. 265,

394-395 (1978). Justices Ginsburg and Breyer recently observed,

“It is well documented that conscious and unconscious race bias,

even rank discrimination based on race, remain alive in our land,

impeding realization of our highest values and ideals.” Grutter v.

Bollinger, 539 U.S. 306, 345 (2003) (concurring op.). Carl Rowan

put it more dramatically: “Racism has not been as virulent

throughout America since the Civil War, with short fuses burning

on a thousand powder kegs.” Carl T. Rowan, The Coming Race

War in America, 4 (1996).

President Lyndon Johnson recognized that the removal of

Jim Crow laws and practices was progress, but only limited

progress, in dismantling the heritage of slavery and apartheid.

Speaking at Howard University on June 4, 1965, the president

stated:

The voting rights bill will be the latest, and among the

most important, in a long series of victories. But this

victory ... ‘is not the end. It is not even the beginning of

the end. But it is, perhaps, the end of the beginning’ ...

You do not wipe away the scars of centuries by saying:

Now you are free to go where you wani, and do as you

desire, and choose the leaders you please ... Much of the

Negro community is buried under a blanket of history and

circumstance. It is not a lasting solution to lift just one

corner of that blanket. We must stand on all sides and we

must raise the entire cover if we are to liberate our fellow

citizens.

http://www. Ibjlib.utexas.edw/johnson/archives.hom/speeches.hom/

650604.asp (last visited March 21, 2005).

The culture of white supremacy has maintained its power,

despite the fact that direct expressions of bigotry are no longer

considered socially acceptable in most quarters. Tangible progress

8

toward material equality has been substantially less than is

commonly thought. Carl Rowan explains:

Black judges and generals, cabinet officers and

columnists, and talk-show hosts and television anchors are

prominent symbols of the racial progress that has taken

place in this society over the last two generations. But

these symbols create a veneer that hides the truth that for

the overwhelming mass of black people, Hispanics, and

other nonwhites, precious little has changed during the

thirty years that gave us the so-called civil rights

revolution. Rowan, supra, 18.

Rowan underlines that with respect to access to housing, education

and economic well being generally, blacks lag far behind white

America and cruel discrimination continues.’

Our limitations in understanding the magnitude of the

problem are exacerbated by our failure to appreciate how distorted

the telling of the history of race relations has been. As Prof.

. Banks and others have explained, “historians have distorted the

history of racial subordination, starting during the slavery era, and

... popular culture perpetuates these distortions.” Taunya Lovell

Banks, “Exploring White Resistance to Racial Reconciliation in

the United States,” 55 Rutgers L. Rev. 903, 908 (2003). Prof.

Banks specifically argues:

Non-prejudiced whites, I argue, resist black reparations

* “Jim Crow is maintained as much by bankers and mortgage companies as by

hood-wearing white hoodlums ... even a black person of exceptional prestige and

large financial resources has a more difficult time getting a housing loan than a

white applicant with lesser qualifications. The difficulty is magnified if the black

applicant is trying to integrate public housing in projects in formerly white

neighborhoods!” Rowan, supra at 20. “The long-heralded 1954 Supreme Court

decision in Brown v. Board of Education has failed in many important respects to

wipe out Jim Crow in public education and to give blacks the most basic

opportunities they were guaranteed forty years ago ... a visitor to the public

schools of Birmingham, Atlanta, Washington, D.C., or Summerton, South

Carolina, sees only token integration. Now, the most pernicious discrimination in

public schooling takes place in the North — in the cities such as Boston, Chicago,

Detroit.” /d. “Blacks gained dignity from the Public Accommodations Act and

political power from the Voting Rights Act. But the whole truth is that there can

be only limited dignity and self-respect for those who live in poverty; and there is

only limited political power for Americans who have no money and can afford no

lobbyists or political action committees.” /d. at 20-21.

9

cliorts because they are ignorant of the nature and

condition of African slavery, de jure segregation, and the

continuing vestiges of public and private discrimination

against people raced as black in the United States. Jd. at

911. ;

The distorted telling of history has affected the A frican-

American population as well as white America. As Randall

Robinson has written, “Now never begins yesterday. To set afoot

a new and whole black woman and man we must first tell the

victims what happened to them — before and after America was

new.” Randall Robinson, The Debt, 7 (2000). He notes that,

“Here too, habit has become our enemy, for America has made an

art form by now of grinding its past deeds, no matter how

despicable, into mere ephemera. African Americans,

unfortunately, have accommodated this habit of American amnesia

all too well.” Jd. at 231.

Despite the horrors of the atrocities committed against the

citizens of Greenwood, Tulsa’s African-American community, it

was remarkably easy for white Tulsans to hide the truth about

what happened in the summer of 1921 for one simple reason:

white Americans have always been ready to believe the worst

about African Americans. Tim Madigan explains how Tulsa’s

conspiracy of silence was born:

[B]y modern necessity, the events of 1921 became an

embarrassment, something better forgotten. . . . The

burning was like an ugly birthmark in the middle of

Tulsa’s cultural forehead that would forever disfigure the

place. Unless, of course, it was covered up and forgotten.

Those who could not forget meanwhile, consoled

themselves with the notion that the burning had been the

Negroes’ fault — the whites had merely acted to put down

an uprising of uppity and lawless blacks.

Tim Madigan, The Burning 251 (2001). Thus, the victims became

the scapegoats, rendering them unworthy of receiving justice.

The work of A. Leon Higginbotham, Jr. demonstrates that

Tulsa was not an isolated incident, but part of an historical pattern

that continues to the present. In Shades of Freedom: Racial

10

Politics and Presumptions of the American Legal Process (1996),

Judge Higginbotham chronicles six events, ranging from 1989 to

1995, in which whites falsely attributed terrible crimes they

committed to black men because of the general knowledge that

* hites are ready and willing to believe the worst about African

Americans. Id. at xxv-xxvii (“A Black Man Did It:

Commonalities of Perception”).

Judge Higginbotham says of such events:

These highly publicized incidents reveal that, even in the

late twentieth century, some persons will espouse false

allegations that attribute the most egregious conduct to

African Americans because they believe the public will

unhesitatingly accept such stories ... [they] are part of a

continuum [of racial animosity] that still has an unfair

impact on American Americans, even at the present time.

Td.

The conclusion that the plaintiffs have forfeited their

cause of action by not filing suit at some arbitrarily determined

time as designated by the District Court in part reflects a failure of

the white community to assume ownership of the problem that the

Tulsa Race Riot continues to pose. It is a form of blaming the

victim that once again maintains white supremacy through subtle

resort to a convenient stereotype — that blacks do not do things on

time — thus undervaluing the continuing role of terror inflicted by

state supported violence.

Ill. THE DEFENDANTS’ CONSTRUCTION AND

PERPETUATION OF A FALSE HISTORICAL

NARRATIVE OF THE TULSA RACE RIOT, IN THE

LIGHT OF THE HISTORY OF RACISM IN

AMERICA, CREATED EXCEPTIONAL

CIRCUMSTANCES THAT WERE NOT

DISSIPATED UNTIL THE PUBLICATION OF THE

OFFICIAL REPORT OF THE TULSA RACE RIOT

COMMISSION.

A. The Effects of Historical Narrative and Trauma on

Historical Memory.

In evaluating the statute of limitations issues in this case

the falsification of the historical narrative and its effect upon

_ nn

11

historical memory must be considered. A historical narrative is

the story constructed about a historical event; historical memory is

the way society ultimately remembers that event. The “collective

amnesia” that is necessary for a false narrative to achieve

credibility is a result of several influences. Reactions to traumatic

stress, such as thought suppression and post-traumatic stress

disorder, and the state’s active fabrication of a false historical

narrative, work in combination to psychologically and

sociologically prevent victims from filing claims unless and until

the state itself ultimately accepts culpability.

Traumatic stress reactions include “thought repression”

and “thought suppression,” processes which allow individuals to

cope with traumatic events by either consciously or unconsciously

forgetting the details of those events. Jonathan M. Golding, ed.

Intentional Forgetting, 82 (1998). Often, individuals who

Suppress such thoughts are suffering from the condition known as

post-traumatic stress disorder (PTSD), a salient characteristic of

which is impaired and sometimes “total loss” of memory regarding

the traumatic events. American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders, (4" ed.

1994) (DSM IV). People with such trauma may create alternate

and even conflicting versions of the events they are suppressing.

Id. PTSD sufferers also experience the following:

The person commonly makes deliberate efforts to avoid

thoughts, feelings, or conversations about the traumatic

event and to avoid activities, situations, or people who

arouse recollections of it. This avoidance of reminders

may include amnesia for an important aspect of the

traumatic event.

See DSM IV. The effects of these stress reactions are enduring

and normally require intense therapy to address; some people

suffering from PTSD never fully recover. Jd.

For example, the victims of racial violence in Rosewood,

Florida experienced these very effects. During a week of racial

violence and murder in 1923, white mobs burned down every

home in the predominantly African-American community of

Rosewood. Hon. Bo Johnson, Special Master’s Final Report, Re:

HB 591 by Representatives De Grandy and Lawson (March 24,

12

1994). The trauma experienced by those victims is a compelling

example that confirms the psychological research:

Most of these [victims] blocked out the whole memory of

Rosewood ... Historians interviewed the survivors, and

they didn’t even tell their sisters, or brothers, or children

about Rosewood, they didn’t even share the story with one

another. Most of that was because of fear. You have to

keep in mind that what these folks went through, and what

they saw, was evidence of law enforcement officials

working together with white militants to burn their

community down and kill their neighbors. So not telling

the story is not surprising.

David Colbun, Rosewood and Historical Memory, Public lecture

at the University of Colorado recorded by counsel (March 29,

2005).

Such psychological reactions are profoundly durable, as

documented by the United Nations Commission of Human Rights

(UNHCR):

It is well established that for many victims of gross

violations of human rights, the passage of time has no

attenuating effect; on the contrary, there is an increase in

post-traumatic stress, requiring all necessary material,

medical, psychological and social assistance and support

over a long period of time.

United Nations Commission on Human Rights: Study concerning

the right to restitution, compensation and rehabilitation for

victims of gross violations of human rights and fundamental

freedoms, E/CN .4/Sub.2/1993/8 p. 154 (July 2, 1993).

The testimony of Dr. Eric Caine in this case documented

that the victims of the Tulsa Race Riot suffered from similar

traumatic stress reactions resulting in thought repression, amnesia,

and psychic numbing. (Pet. App. 28a).

The dominant sectors in society often advance false

historical narratives to rationalize or justify human rights abuses.

The ultimate effect of a false historical narrative upon historical

memory depends upon the public’s willingness to accept the false

narrative as true, the authority or power of the person advancing

13

the false narrative, and the Opposing participants’ power to counter

or challenge the false narrative. In the case of the Tulsa Race

Riot, these factors were ideally aligned for the perpetrators of the

abuses, enabling the state to rapidly and dramatically influence

society’s historical memory of those events.

Principally the state was rendering a completely false

historical narrative to a virulently racist audience that was willing

to accept it wholesale. Indeed, the very purpose of the burning of

the black community in Tulsa was to enforce white supremacy.

As the Final Report of the Oklahoma Commission said:

The intent [of the riot] was to intimidate one community,

to let it be known and let it be seen -.. a Collective body —

acting as one body — had coldly and deliberately and

Systematically assaulted one victim, a whole community,

intending to eliminate it as a community. If other black

communities heard about it and learned their lessons, too,

so much the better; a little intimidation went a long way.

(Pet. App. 45a)

| Because the burning of the black community in Tulsa was

such a dramatically public event, it took on the character of a mass

lynching. Lynchings of black victims were Clearly intended to

reinforce white Supremacy. As Prof. Ifill has written:

The gathering of the mob, the public execution, the grisly

display of the body, and the participation of hundreds or

thousands of spectators were deliberately public acts of

violence and terrorism ... lynchings were conducted as

public ceremonies of white Supremacy. Sherrilyn A. Ifill,

“Creating a Truth and Reconciliation Commission for

Lynching,” 21 Law & Ineq. 263, 268 (2003) (footnotes

omitted).

It is important to take into account that during the decades

following the Tulsa Race Riot, there was extraordinary social

complicity in lynching. There were nearly 3500 black victims of

lynching between 1895 and 1964, forty of whom were in

Oklahoma. U.S. Lynchings by Race and by Year ,Tuskeegee

Institute, available at http://

www.law.umke.edu/faculty/projects/ftrials/shipp/lynchingyear ht

ml (last visited Mar. 21, 2005). Literally millions of white people

14

were implicated as either active participants or passive observers

and lynching “flourished” with the “tacit approval or passive

acceptance of ... police officers, prosecutors, judges, and elected

officials.” Ifill, supra at 267-268.

Despite the efforts of many proponents of such legislation

Congress never passed an anti-lynching law. The apparent

acceptance of lynching by the dominant culture and the horrible

nature of these executions had a profound effect on the black

community:

Because any act perceived as racial insubordination could

trigger violence, lynching imposed social, educational,

and political controls on black life. While laws restricting

the civil rights of blacks were external prohibitions on

black advancement, lynching encouraged blacks to curb

their own behavior, to tum away from opportunities for

advancement, and to restrict their own individual and

community growth and development. /d. at 287.

It cannot be assumed that the end of de jure segregation during the

1960’s obliterated the effects of the widespread practice of

lynching. As Prof. Ifill writes:

. it is alarming that little organized effort has been

focused on addressing, engaging, and _ reconciling

communities that experienced historical lynchings. Black

communities were victimized by a powerful message of

terror. Public reaction to the Rosewood, Florida and the

Tulsa Race Riots demonstrate that racially victimized

communities do not forget, but instead continue to suffer

the scars caused by racial terror and vigilantism. /d. at

268.

Finally, the false narrative of the Tulsa Race Riot was advanced

with the full legitimacy and authority of the state and the support

and participation of the public, authority figures and media. The

victims, marginalized, traumatized and oppressed legally and

politically, had no ability to challenge the false narrative. As the

Court of Appeals recognized, those few individuals courageous

enough to challenge the narrative were silenced by the courts with

impunity. Alexander v. Oklahoma, 382 F.3d 1206 (10th Cir.

15

2004). Thus the false narrative remained the only legitimate

version of the events.

B. Truth Commissions Play an Essential Role in

Deligitimizing False Historical Narratives

Advanced by the State.

The mutually reinforcing effects of intense trauma, racial

oppression and the false narrative create a veritable fortress of

impunity for the state where neither society nor the victims can

establish the true version of events. This impunity cannot end

until the state itself or an organization vested with commensurate

authority acknowledges the state’s culpability for human rights

abuses. In recent decades, the mechanism for deligitimizing the

false narrative has increasingly taken the form of the “truth

commission.”

Truth commissions are bodies created and authorized by

the state to investigate a history of human rights abuses. Two of

the defining characteristics of a truth commission are a “finite and

predetermined existence ending with the submission of a report ...

and some sort of authority, by way of its sponsor, that allows it

greater access to information greater security or protection to dig

into sensitive issues and a greater impact with its report.” Rama

Mani, Beyond Retribution: Seeking Justice in the Shadows of War

p.102 (2002).

The truth commission’s unmatched investigatory power

allows it to get “as complete a picture as possible of the nature,

causes and extent of gross human rights violations.” John Torpey,

ed., Politics and the Past: On Repairing Historical Injustices, 111

(2003). The state’s endorsement of the truth commission allows it

to access concealed documents and gives it a unique air of

legitimacy for encouraging a reluctant witness to testify. It also

creates an unparalleled level of publicity about the issue, bringing

* Truth commissions have been established to address human rights abuses in the

following countries: Argentina , Bolivia , Chad, Chile, East Timor, Ecuador, E!

Salvador, Germany, Ghana, Guatemala, Haiti, Nepal, Nigeria, Panama, Peru,

Phillipines, Serbia and Montenegro (formerly Federal Republic of Yugoslavia),

Sierra Leone, South Africa, South Korea, Sri Lanka, Uganda, United States,

Uruguay, and Zimbabwe. See United States Institute of Peace, Truth

Commissions Digital Collection. <http://www.usip.org/library/truth.html> (last

visited, March 28, 2005).

16

previously unknown witnesses forward. Unlike individuals or

private organizations, truth commissions are also endowed with

sufficient resources enabling them to gather and analyze massive

amounts of information.

Furthermore, no matter what individuals may suspect

about the truth, a false narrative vested with the authority of the

state remains the only legitimate version of historical memory

until repudiated by an organization like a truth commission

possessing the authority and legitimacy of the state. Mani, supra

at 104. For example, truth commissions or similar bodies were

established to investigate the 1923 massacre in Rosewood, the

“disappearances” in Chile and other Latin American countries, and

the abuses of the apartheid government in South Africa. In each

of these cases, the truth commissions’ reports for the first time

authoritatively dispelled the false historical narratives that had

been constructed surrounding those events.

For example, in Chile the 1991 report of the National

Commission on Truth and Reconciliation revealed for the first

time the true extent of the human rights crimes committed by the

government of Augusto Pinochet. See e.g. Report of the Chilean

National Commission on Truth and Reconciliation, Part Three

(Feb. 1991) (“Rettig Report”). The dominant false historical

narrative had created a historical memory that had been impossible

for the victims or their advocates to pierce despite determined

efforts. Id.

The commission identified specific abuses and crimes that

had never before been identified or even suspected and found that,

as happened in Oklahoma, “major sectors of public opinion

allowed, tolerated, supported, and even concealed the violation of

the human rights,” and that the media was “willing ... to publish

and broadcast whatever information the new government asked

them to present.” Rettig Report at Part Three, Chapter 1 § C(1) &

(4).

As the Chilean commission discovered, the false historical

narrative, created by “contradictory official accounts or complete

silence on the part of officials,” made legal redress by victims

impossible prior to the issuance of the report, because officially

they had no cause of action:

a ec

17

In their official statements, government authorities

referred to those who were killed or disappeared as

criminals and terrorists who were dangerous to society.

The press adopted that same kind of language and

assumed that such persons were guilty. A segment of

society also absorbed those ideas, and so those who were

wronged were not seen as victims. The families say that

the fact that the government itself was defaming their

name and that they were prevented from publicly

defending their loved ones harmed them in a way that was

very hard to repair.

Rettig Report, Part Three, Chapter 4 § G(1) (emphasis added).

Victims of the Chilean abuses testified that, “it was only after the

[Rettig Report] that they gained the courage to come forward to

present their case.” Chile: Testament to Suffering and Courage,

the Long Quest for Justice and Truth. Amnesty International

Report 2 (Dec. 2001).

The events in Chile are but one example of this process.

Prof. Banks compares what was found necessary in South Africa

with the lack of a truth commission in the United States:

The Jim Crow era in the United States ... has been

compared to South Africa under apartheid. Yet, when

apartheid ended in South Africa, that country's

Constitutional Court acknowledged: ‘A nation divided

during a repressive regime does not emerge suddenly

united when the time of repression has passed.’ True racial

and national reconciliation in South Africa could not

occur, according to the Court, until that country had as

complete a picture as possible of what happened during

the Apartheid era ... In contrast, the United States has

never had a public venting of the economic, social and

psychological consequences of slavery, and the legalized

racial apartheid that followed emancipation. Banks, supra

at 908-909.

The Chilean and South African examples demonstrate a

critical factual issue overlooked by the lower courts: When

victims are traumatized by events and by the subsequent false

historical narrative that blamed them for the abuses they suffered,

and when the false historical narrative is furnished by the state and

18

accepted and facilitated by large segments of society, victims are

prevented socially, psychologically and ultimately legally from

bringing their claims until the issuance of a state-sanctioned

report.

C. International Law Recognizes That The Effects of

Trauma and Historical Memory Require

Suspension of Statutes of Limitations.

The paralyzing effects of trauma and historical memory

have been recognized in a number of international conventions

and laws. Notably, the UNCHR has commissioned a study and

drafted basic guidelines relating specifically to the issue of

restitution and compensation for victims like those of the Tulsa

Race Riot. The report found that statutes of limitations were often

applied in order to find a procedural device to deny justice, even

when it was clear that extraordinary circumstances should have

prevented its application. UNHCR at 29, 49. The report stated

that:

As is borne out in this study, the application of statutory

limitations often deprives victims of gross violations of

human rights of the reparations that are due to them. The

principle should prevai) that claims relating to reparations

for gross violations of human rights shall not be subject to

a statute of limitations. In this connection, it should be

taken into account that the effects of gross violations of

human rights are linked to the most serious crimes to

which, according to authoritative legal opinion, statutory

limitations shall not apply.

UNCHR at 153-154 (emphasis added).

In addition, the overwhelming consensus of domestic and

international human rights bodies is that statutes of limitations

should not apply to gross human rights violations such as the

Tulsa Race Riot. See, Convention on the Non-Applicability of

Statutory Limitations to War Crimes and Crimes Against

Humanity. 40 UN Doc. a/7218 (entered into force Nov. 11, 1970)

(countries shall “adopt ... any legislative or other measures

necessary to ensure that statutory or other limitations shall not

apply” to crimes against humanity); Article 29 of the Rome Statute

of the International Criminal Code U.N. Doc. 2187 U.N.T.S. 90

19

(entered into force July 1, 2002) (“crimes within the jurisdiction of

the Court shall not be subject to any statute of limitations”);

European Convention on the Non-Applicability of Statutory

Limitations to Crimes against Humanity and War Crimes, ETS 82,

13 LL.M. 540, Jan. 25, 1974 (not in force) (specifically drafted to

address this issue, stating that punishment of “crimes against

humanity” should not be “prevented by statutory limitations

whether in relation to prosecution or to the enforcement of the

punishment.”) Judicially created remedies, such as the doctrine of

equitable tolling on which plaintiffs in this case rely, provide an

appropriate avenue of relief from statutes of limitations as

recommended by these international bodies.

IV. CONCLUSION

The rich mosaic of distorted racial history and the false

historical narrative that was created with respect to the Tulsa Race

Riot constitute a complex factual problem that should not be

resolved on summary judgment. This Court should grant certiorari

to reverse the decision of the Tenth Circuit Court of Appeals.

Respectfully submitted,

Michael Avery Ron Isaac

Counsel of Record National Conference of

National Lawyers Guild Black Lawyers

143 Madison Ave., 4" floor 818 Malibu Drive

New York, NY 10016 Silver Spring, MD 20901

617-573-8551 202-326-3231

Taylor Pendergrass Angela Ciccolo

National Lawyers Guild Interim General Counsel

4710 Table Mesa Drive #B Victor L. Goode

Boulder, CO 80305 Assistant General Counsel

303-442-0802 NAACP

4805 Mt. Hope Drive

Jeff Fogel Baltimore, MD 21215-3297

Center for Conistitutional Rights (410) 580-5790

666 Broadway, 7th Floor

New York, NY 10012

(212) 614-6464