Reparations, Land-Back, and the U.S. Constitution

According to the Center for Progressive Reform, “The Fifth Amendment of the United States Constitution includes a provision known as the Takings Clause, which states that ‘Private property [shall not] be taken for public use, without just compensation.’ While the Fifth Amendment by itself only applies to actions by the federal government, the Fourteenth Amendment extends the Takings Clause to actions by state and local government as well.”

Good to know, when a landowner choosing not to sell receives notice that their property is being “condemned” under eminent domain. Maybe their property will be paved over for an interstate highway or turned into a public parking lot. The U.S. Constitution says the landowner will be paid for the confiscated property.

But what about Native Americans, who lost a whole continent to the expanding American Empire? And does the Takings Clause apply to the descendants of people once enslaved with the full acquiescence of the U.S. Constitution and the complicity of federal, state, and local governments? Do these governments owe compensation to the indigenous people of Turtle Island and the descendants of once enslaved people of African descent for commandeered land, labor, liberty, and lives?

The courts of the empire may rely on self-referential legalisms to declare that the original indigenous inhabitants never had legal claim to ownership of the land, or that the U.S. Constitution did not, at the time, recognize enslaved people as capable of owning anything, including their own lives and labor; hence nothing recognized as legal property was taken from them and no compensation is owed. Typical judicial gaslighting.

Hoots of outrage from white supremacists accompany any serious calls for reparations to the African American community. These calls for reparations are being uplifted as a necessary component of conciliation by American society, including in cities across the country. According to USA Today, “Mayors Organized for Reparations and Equity (MORE), is led by Los Angeles Mayor Eric Garcetti and Denver Mayor Michael Hancock. The other mayors are Jorge Elorza of Providence, Rhode Island; Steve Adler of Austin, Texas; Steve Schewel of Durham, North Carolina; Esther Manheimer of Asheville, North Carolina; Quinton Lucas of Kansas City; Darrell Steinberg of Sacramento, California; Melvin Carter of St. Paul, Minnesota; and Keisha Currin of Tullahassee, Oklahoma.” 

Los Angeles mayor Eric Garcetti stated, “Let me be clear: Cities will never have the funds to pay for reparations on our own. When we have the laboratories of cities show that there is much more to embrace than to fear, we know that we can inspire national action as well.” Asheville, NC City Council enacted a reparations resolution that mandates city investments to counter racial disparity. Turning even that modest goal into action remains aspirational, at this writing.

On October 12, 2020 the Indigenous Americans of the NDN Collective launched the LANDBACK campaign, with four demands: 

  • Dismantle white supremacy structures that forcefully removed us from our Lands and continue to keep our Peoples in oppression.
  • Defund white supremacy: the mechanisms and systems that continue to disconnect us from stewardship of the Land. Police, military industrial complex, prisons, criminal justice system, ICE
  • Return Indigenous lands to Indigenous hands (return of all public lands)
  • Consent Free and Prior Informed Consent if you are going to make decisions that impact Indigenous Peoples and the stewardship of our Lands.

Those who renounce white supremacy must insist that law be transformed from a weapon protecting the commandeered property and privileges stolen from Indigenous and enslaved people and into a guarantor of justice. We know that the empire skews even its own laws when it is to the advantage of privileged members of society. While the exercise of eminent domain is declared legitimate when the land confiscated is to be put to a public use, we see a routine application of land condemnation that enriches affluent private parties, offering no public benefit. This habit of injustice is a mere continuation of the Doctrine of Discovery and the Law of Conquest that were used to justify genocide, ecocide, slavery and centuries of misery. We understand that the Takings Clause was intended to protect property rights vested through conquest and receipt of stolen lands through sale and inheritance. While it may not be possible to correct the wrongs of the past, integrity demands we acknowledge them and offer what we can in compensation. Reparations for enslavement and LANDBACK for genocide and ethnic cleansing are the least the governments of the United States can do, national, state and local.

“Clear-cut” by AstridWestvang is licensed under CC BY-NC-ND 2.0

Additional Resources