I. Introduction

Bernadette Atuahene's We Want What's Ours (2014) shows that the dignity harms that accompany property loss are often forgotten, even though they are sometimes the most important of the losses. While domestic US law sometimes takes account of dignity harms, damages are notoriously difficult to gauge, and compensation (or injunctive relief) is often inadequate. The 9/11 victims' compensation fund is one recent example of how much property (in this case lost income) governs our thinking (Wenger Reference Wenger2010). The families of similarly situated victims of the 9/11 tragedies received vastly different compensation, depending on how much the victims earned. Such focus on lost property is a particularly disturbing trend in reparations for widespread racial crimes because reparations are supposed to be about fundamental justice and transformation (Brophy Reference Brophy2006, 154).

Atuahene (Reference Atuahene2014) advances a case for compensation that uses property deprivation as the opening point for gauging and compensating harms that stretch beyond the loss of real property. This brief article turns to one episode of particularly heinous violence in the early twentieth-century United States, the Tulsa race riot of 1921, and uses Atuahene's framework to help us understand the reach of the destruction of the riot. For the riot took not just the homes and businesses—and sometimes the lives—of African Americans in Tulsa, it also took their freedom, ran many of them out of the city and state, and left a legacy of white supremacy. Yet, it was also a rallying point, as were the other riots, lynchings, and the laughably biased court proceedings of the era. The African American community pulled together to argue for—and eventually achieve—an expanded vision of the Equal Protection Clause. That is, one of the key values that would be sought for dignity harms of deprivation of constitutional rights was actually achieved in the decades following the violence of the Jim Crow era. The example of the Tulsa riot, thus, shows the importance of an expanded understanding of the dignity harms that so often accompany the taking of property through violence. Its aftermath and the civil rights movement that put an end to such extraordinary violence illustrates some of the widespread responses that are necessary to dignity takings.

II. The Context of the Tulsa Riot

The origins of the Tulsa riot lie in the racial violence that swept through the South and Southwest in the early twentieth century. However, they also lay in the rising confidence and demands for fair treatment of the African American community. In the wake of World War I, DuBois put the nation on alert that the African American community would no longer abide grossly unequal treatment. In his November 1919 editorial, “Returning Soldiers,” DuBois told of how African American soldiers went to war to save democracy in Europe and that when they returned to the United States they would demand the same here (DuBois Reference DuBois1919).

In the African American section of Tulsa, known as Greenwood, DuBois's ideas resonated with the community, which had increasing wealth, status, and self-confidence. For instance, in the wake of a lynching in Oklahoma City in August 1920, A. J. Smitherman, a leading member of the African American community in Tulsa, published an editorial in the Tulsa Star, the weekly African American newspaper he edited. Smitherman took a radical stand similar to that of DuBois. A young man, Claude Chandler, had been taken out of the jail and lynched. After they had heard he had been taken from the jail, some members of the African American community in Oklahoma City had searched in vain for him. Smitherman, however, thought there should have been action before Chandler was taken out of the jail, at the point when there was a rumor of a lynching. Smitherman wrote that “[t]he proper time to afford protection to any prisoner is BEFORE and DURING the time he is being lynched, and certainly not after he is killed” (Brophy Reference Brophy2002, 17).

Later in the editorial, Smitherman told his readers that they were authorized, indeed required, to take action before the lynching. “While the boy was in jail and while there was danger of mob violence any set of citizens had a legal right—it was their duty—to arm themselves and march in a body to the jail and apprize the sheriff or jailer of the purpose of their visit and to take life if need be to uphold the law and protect the prisoner” (Brophy Reference Brophy2002, 17). Those were bold words and they suggested the radical ideas of Tulsa's African American community, which was getting ready to take action, including the use of violence, to stop lynching.

Then in April 1921, a group of African American men went to the jail in Okmulgee and took a prisoner out of it whom they feared would be lynched. Their efforts to stop the lynching in this case were extreme, perhaps unprecedented (Brophy Reference Brophy2002, 19). Meanwhile, in Greenwood, leaders of the African American community met at the Dreamland Theater, a prominent part of the Greenwood community, and praised those actions. Often, the show at the Dreamland Theater in Greenwood, an important meeting place for the community, concluded with the line, “don't let the white man put it over on you, but fight” (Brophy Reference Brophy2002, 21).

This conflict between the norms of white supremacy and the rising aspirations and hopes and demands of the African American community came to a head on the evening of May 31, 1921, when a sensationalist article appeared in the Tulsa Tribune, entitled “Nab Negro for Attacking White Girl in Elevator” (Brophy Reference Brophy2002, 24). It demanded that a young African American man be arrested for a supposed attack on a teenage white female who worked as an elevator operator in a building in downtown Tulsa. Following the newspaper's publication, the nineteen-year-old Dick Rowland was, in fact, arrested and put in jail at the Tulsa Courthouse. Later that evening, as a mob appeared at the courthouse either to witness or to participate in Rowland's lynching, African Americans met in Greenwood at the Dreamland Theater to plot their response to the threatened lynching. They made several visits to the courthouse to protect Rowland. Around 10 p.m. there was a violent confrontation at the courthouse between the mob and the men from Greenwood that set off a riot (Brophy Reference Brophy2002, 31–34).

In the aftermath of the confrontation, the police force hastily deputized members of the mob and issued guns to some of those who did not already have them. One popular refrain that evening in the white section of Tulsa was “get a gun and get busy and try to get a N—r” (Brophy Reference Brophy2002, 40). In fact, the next morning the special deputies, working in conjunction with the police and members of a mob, swept through Greenwood, arrested all the African American people they could find, and sent them to what newspapers called “concentration camps” around the city (Brophy Reference Brophy2002, 115–18). Some Greenwood residents resisted and were shot; more than thirty people are acknowledged by official sources to have died. The full number will never be known, but the death toll may have been much higher (Brophy Reference Brophy2002, 59–60). Even some people who did not resist were shot. Then the houses and businesses were ransacked and put to fire.

By the time the riot was over around noon on June 1, dozens of blocks of Greenwood were on fire or had already burned and thousands of people were homeless. The community's churches, businesses, boarding houses, and residential buildings, too, were lost. In the immediate aftermath of the riot, Greenwood residents were only released from the concentration camps when they had a white person vouch for them. They were also ordered to wear green tags that had their names and the name of the white person who vouched for them. The tags seemed so effective in controlling people that one Tulsan suggested that white people also be tagged (Brophy Reference Brophy2002, 91). One newspaper recorded the reaction of Greenwood residents: “It is humiliating in the greatest degree to the Negroes of the city to have to go around labeled with green cards as though they were dogs” (Brophy Reference Brophy2002, 158). Such is the dramatic evidence of dehumanization that supports a claim for dignity takings.

After the riot, a number of postcards were made of and sold to commemorate the riot. One was titled “Running the negro out of Tulsa” (Brophy Reference Brophy2002, 66). The scene, taken from the rooftop of a building in white Tulsa, shows Greenwood on fire. That haunting image and the caption link the destruction in Tulsa to the so-called negro drives that swept across the South and Southwest in the early twentieth century. It reveals that this was not some isolated incident. Though the riot was far worse than other negro drives, it was part of a pattern of private and government action that worked together to drive African Americans from their homes. That photograph also reveals that this destroyed an entire community. It took the homes, the churches, the businesses, and the morale of Tulsa's African American citizens, and even pushed many of them out of the city.

The newspapers are filled with reports of Greenwood residents walking along the railroad tracks, headed out of town in all directions—toward Memphis, St. Louis, Kansas City, Oklahoma City … anywhere, as long it was away from Tulsa. Moreover, leaders of the community left because they feared prosecution for inciting rioting. Thus, the riot and its aftermath fit well with Atuahene's (Reference Atuahene2014) framing of dignity takings, which extend well beyond the property that was lost. It is important to observe here that the riot's destruction took place because of a combination of state action and mob action. Private prejudice and hatred mixed with public action. All together created a world of segregation, enforced through norms of violence.

III. The Aftermath of the Tulsa Riot

After the embers finished burning and calmer heads returned to Tulsa, one might have thought that the rule of law would be reestablished. Yet, that happened far too infrequently. Instead, as the Greenwood residents tried to rebuild, they faced a series of significant challenges. First, they had little money for rebuilding, because their fire insurance frequently had riot exclusion clauses that allowed the insurance companies to avoid payment for property lost to riot. Second, a hastily passed building ordinance required rebuilding using fireproof (and hence prohibitively expensive) materials. Moreover, the Tulsa mayor suggested that it would be a good idea to relocate the African American community further north, away from white Tulsa, so that there would be more distance between the races. Then a grand jury investigating the riot blamed African Americans for starting the trouble. The headline of the Tulsa Tribune told the story of the grand jury (and the official narrative of white Tulsa): “Grand jury blames negroes for inciting race rioting; whites clearly exonerated” (Brophy Reference Brophy2002, 145). This narrative, told by white Tulsans to themselves, led the Black Dispatch, Oklahoma City's African American newspaper, to declare that there was “a white wash brush and a big one in operation in Tulsa” (Brophy Reference Brophy2002, 74). Then the lawsuits filed against the city and insurance companies all failed (see, e.g., Redfearn v. American Central Insurance 1926). In short, the African American community was taught that assertions of their rights would result in extraordinary violence and that even after passions cooled, their rights would not be respected. Those in charge in Tulsa and throughout the South and Southwest made white supremacy real in every sense in which it could be made real (see Black Dispatch 1919).

That the law was terribly biased was, of course, well known to Oklahoma's African American citizens. Ralph Ellison, who grew up in Oklahoma City and based some of his novel Invisible Man on his experiences in Oklahoma, critiqued the indignity of the rule by “laws” (i.e., the seemingly arbitrary dictates of police officers, prosecutors, and judges), rather than the rule of law during the Jim Crow era. He recalled toward the end of his life how he had visited Tulsa shortly before and then again shortly after the riot and saw the devastation wrought by race hatred (Ellison Reference Ellison and Callahan1972). One important vignette in Invisible Man involves the eviction of an elderly couple from their apartment in Harlem. They had little to lose, Ellison observed. All that they had was the “great constitutional dream book” and even that they could not read (Ellison Reference Ellison1952, 280). Ellison here was referring to a metaphorical book of dreams of what African Americans hoped for from the Constitution. As he recalled in his often-overlooked meditation on law and literature, “The Perspective of Literature,” the law enforcement officers, judges, and legislators did not have the respect of the African American community (Ellison Reference Ellison and Callahan1976, 767–77). Yet, somehow people such as Roscoe Dunjee, the editor of Oklahoma City's Black Dispatch, put faith in the dream of equality through law. African American intellectuals like Dunjee and DuBois looked back to the Reconstruction Amendments and even further back to the Declaration of Independence as guiding principles, and then they demanded that the rest of the United States abide by those principles (Ellison Reference Ellison and Callahan1972, 451–52). Slowly, despite tragedies and extraordinary violence like that which occurred in Tulsa, the world was remade.

A few years after the riot, the governor of Oklahoma declared martial law throughout the state. He cited, among other reasons, the pervasive control of the courts in Tulsa by the Ku Klux Klan. A military tribunal investigating these charges turned up many stories of violence orchestrated between the local officials and the Klan in eastern Oklahoma (Brophy Reference Brophy2004). This reveals that the tragedy of the Tulsa riot was not just an isolated event. It was part of a broad set of beliefs of white supremacy held by people, inside and outside the Oklahoma government.

In addressing this combination of public and private action, which cast such a long shadow, there should likely be broad public action that addresses both individuals and communities. For such society-wide destruction, the remedy one would expect would be society-wide repair. Atuahene's framework is particularly helpful in detailing the process of deprivation here (Atuahene Reference Atuahene2014, 26–34). Borrowing the five key factors that Atuahene has identified as part of a dignity takings claim: (1) the state did this directly and also with the cooperation and support of private citizens; (2) there was property loss and (3) loss of homes, which in this case was worsened because not only was property taken, but also people were run off from the city; (4) this was done as people were treated as objects to be controlled and tagged; and (5) there was no compensation, nor was there any legitimate public purpose (Atuahene Reference Atuahene2014, 26–34).

IV. The Restoration of Dignity and Citizenship

Given the utter failure of the courts and the city of Tulsa to provide relief in the aftermath of the riot, the community was left with little hope. However, this was far from the end; the drumbeats in favor of equality became more frequent in the African American community and in the legal system, too. The African American community told of how the law had failed it and won increasing acceptance of its claims. This forward progress illustrates that much was lost—and that the larger culture recognized those collective losses. One may debate whether to classify such state responses as reparations (Yamamoto Reference Yamamoto1999). However, the responses—even though not classified as reparations by those making them—helped to restore what was taken. Often, those responses were made in response to specific claims about past harm.

The Oklahoma Court of Criminal Appeals overturned a biased prosecution of Jess Hollins for assaulting a white woman in Creek County in 1931 (Ex parte Hollins 1932). As it overturned the judgment, the court noted that the judge who sentenced Hollins to death feared that a lynch mob might take Hollins. There was, actually, a connection to the riot in nearby Tulsa a decade earlier. For the court noted that the judge “remembered the occurrence of mob violence in Tulsa and was afraid if the arraignment and sentence was delayed there might be a serious outbreak in Creek County” (Ex Parte Hollins 1932, 74). This Oklahoma court thought there was insufficient due process afforded Hollins. It said: “A fair and impartial administration of justice is one of the most sacred rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to the due and orderly course of the law” (Ex Parte Hollins 1932, 77). Three years later, the US Supreme Court reversed a second guilty verdict because of the systematic exclusion of African Americans from the jury pool in the county where Hollins was tried (Hollins v. Oklahoma 1935). Thus, as people in Oklahoma recalled the riot—and even invoked it as a justification for their actions—the courts were expanding their understanding of due process and equal protection (Sullivan Reference Sullivan2009). Following Hollins's retrial in 1936, he was given a sentence of life in prison and chose not to appeal because he did not want to risk another death sentence (Hollins Reference Hollins1936).

Barely a decade after the riot, the Oklahoma Supreme Court struck down an obviously unconstitutional segregation ordinance that had been imposed in 1933 in contravention of the Supreme Court's 1917 decision in Buchanan v. Warley (Allen v. Oklahoma City 1935). Around the same time, the Oklahoma Supreme Court struck down some, though by no means all, racially restrictive covenants that came before it (Christie v. Lyons 1935; Caudle v. Olive 1939; Lyons v. Wallen 1942). Carol Rose's article in this symposium interprets racially restrictive covenants as related to dignity takings, even though Rose suggests they were motivated primarily by considerations other than dehumanization and were imposed by nongovernment actors (Rose Reference Rose2016). Nevertheless, some of the litigants themselves saw the litigation in terms of race hatred. A lawyer for African American claimants in one case noted that the litigation was “melodrama stuff, calculated to inflame the populace against the Negro race.” Later, that lawyer wrote of such litigation as an attempt to “inject the red shirt of prejudice in this case, as against the constitutional rights of the Negro” (Christie v. Lyons 1935, Brief of Defendant in Error, at 15–16). Whatever the final classification of restrictive covenants—as fitting neatly or only loosely into Atuahene's (Reference Atuahene2014) framework of dignity takings—the Oklahoma litigation that sought to undermine them reveals the ways that state power was linked to individual action to deprive African Americans in Oklahoma of their rights to property and to other freedom.

Moreover, the Oklahoma courts' response to the litigation over restrictive covenants reveals the power that respect for property rights of African Americans could have in defeating the covenants. There was an emerging sense of respect for the property rights of African Americans, even as judges continued to speak of their adherence to the norms of white supremacy. In 1935, Oklahoma City trial judge Warren K. Snyder professed his disdain for social equality, but recognized that there were some constitutional rights that had to be obeyed. “Because of birth, raising and environment,” wrote the judge in an opinion striking down enforcement of racially restrictive covenants, “I don't believe now and I don't think I ever will believe in racial equality, or in racial intercourse. I can't imagine the success of having a negro sit down at my table and break bread and things of that kind … but the court feels the colored man or negro has some rights to property which he is entitled to; just as much under his constitutional rights as though he were white” (Christie v. Lyons 1935, Brief of Plaintiff in Error, 16).

The response of the neighboring white property owners was that that if the restrictive covenants were not enforced, there would be further racial troubles, as well as a steep decline in property values. The lawyer for the African American property owner thought such claims denied a fundamental constitutional right. That lawyer responded that “[t]he Constitutional rights of this Negro … cannot be criticized, and the attempts of plaintiffs in error to inject the red shirt of prejudice into this case, as arrayed against the constitutional rights of the Negro owner is unbecoming of our noble profession, the lover of absolute freedom of the law, the constitutional right to acquire, own, and enjoy life, liberty, and protection in our property rights without discrimination on account of race, color, or previous condition of servitude” (Christie v. Lyons, Brief of Defendant in Error, at 16). The constitutional right to equality was on the move, about a decade after the Tulsa riot.

The expansion of constitutional rights in Oklahoma continued through the agency of the NAACP and the federal courts. Roscoe Dunjee, the editor of Oklahoma City's Black Dispatch, who had argued strenuously in the wake of the Tulsa riot for the legal protection of Tulsa's African Americans whose property and dignity was taken by the riot, worked to file two challenges to segregation at the University of Oklahoma. Twice the US Supreme Court struck down segregation as it laid the precedents that resulted in Brown v. Board of Education (1954). In 1948, in Sipuel v. Board of Regents, University of Oklahoma, the Supreme Court required the law school to accept an African American woman; this was followed two years later in 1950 when the Supreme Court required the integration of the university's education school in McLaurin v. Oklahoma. The racial segregation, race hatred, and disrespect for the rule of law that had led to the Tulsa riot was being repaired at the state and federal level. That kind of system-wide remedy was needed for system-wide harm of which the Tulsa riot was a particularly brutal example.

The Supreme Court dramatically expanded its interpretation of the Constitution's equal protection clause from the early twentieth century, when Holmes referred to it mockingly as “the usual last resort of constitutional argument” (Buck v. Bell 1927, 208), to Brown v. Board of Education (1954), where the clause was the center of the decision. That expansion reflects the growing political power of African Americans and the selection of judges who were more sympathetic to such claims. It also reflects the growing condemnation of the era of Jim Crow segregation and grossly unequal treatment of African Americans. This was part of the nationwide political, legal, and social response to widespread racial violence and unequal treatment.

Taking the long view, there was a positive response to the violence and the calls for repair in Tulsa and elsewhere around the United States. The response of the courts—and, sometimes, politicians—to claims for African American citizenship rights reflects the success of African Americans' advocacy of rights in the wake of nation-wide deprivations of rights. The civil rights movement was not, of course, a response to any one isolated event; it was a response to generations of racial crimes and of property and dignity losses. Thus, it would be inaccurate to isolate one event like the Tulsa riot and claim that it led to the preservation or restoration of dignity rights. The riot's deprivations illustrate what many African Americans throughout the United States lost, sometimes on a smaller scale, during the years of Jim Crow segregation. The response of state and federal courts reveals that many people in power recognized those deprivations and began to formulate a response to them. Often, that response was the result of the claims of those who had suffered losses. It was not enough and it took a long time to get there, but there was a response calculated to make up for the many injustices perpetrated by the state and by individuals in the grim years following the end of slavery.

V. The Lessons of Dignity Takings as a Framing Device

That this symposium has so many authors looking for—and finding—dignity takings in so many different contexts, from the aftermath of the American Revolution, to twentieth-century Europe, to twenty-first-century Israel and Arizona, suggests how flexible and salient Autuahene's (2014) framework is (Hulsebosch Reference Hulsebosch2016; Kedar Reference Kedar2016; Richland Reference Richland2016; Veraart Reference Veraart2016). The Tulsa riot and the aftermath is a case where there actually was something of repair, and this gives us a sense of what a meaningful remedy for dignity takings might look like—or at least how one might begin to think about repair—even if there are other pieces that were missing. The issue is not, in the United States, that there has not been harm. It is that voters and therefore legislators are unwilling to provide even limited compensation for past harms.

Atuahene provides an important framework for understanding the scope of past harms. There has been too little repair for the vast injustices in US history. However, there are important values in identifying the full scope of harm to both property and dignity. In some, maybe most, cases, there may be only a partial restoration of dignity rights and that may not always be accompanied by restoration of property. There is a sliding scale of justice and of dignity restoration, and while we have made much progress along the way, there is much yet to be done. That is, past crimes resulted in broader harms than we have recognized and likely cast a longer shadow on the present, too, than we have recognized. This is Atuahene's contribution, to help us see the effects of the past more clearly and to know where to go next.