Suzette Malveaux is provost professor of civil rights law and director of the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School.
One hundred years ago this week, one of the nation’s most prosperous Black communities — the Greenwood district of Tulsa — was destroyed by a White mob in less than 24 hours. This mob killed some 300 African Americans, left more than 10,000 homeless and burned to the ground the entire area known as Black Wall Street. Black Tulsans experienced a horrific wrath and loss of generational wealth. To this day, Greenwood has not fully recovered.
There was no viable pursuit of justice for Black Americans at that time. The Ku Klux Klan had infiltrated every facet of local government, and lynchings were regularly used to terrorize and intimidate Black citizens.
Days after the massacre, Black lawyer B.C. Franklin, father of renowned historian John Hope Franklin, set up a makeshift law office in a tent amid Greenwood’s rubble. Armed with his typewriter and law books, working with a colleague and a legal secretary, Franklin filed insurance claims on behalf of Black Tulsans for property loss and damage. But state and local officials and white-run newspapers initially deemed the massacre a “race riot,” for which Black residents were responsible, so Franklin’s courageous efforts at recoupment were unsuccessful.
To this day, not a single criminal act has been prosecuted for murder, theft, arson or assault in the Tulsa massacre. City and state officials hid evidence and destroyed information. Victims were buried in unmarked graves. Talk of the destruction was squelched, and Oklahoma’s history books excluded it. The coverup was so extensive that even Tulsa’s mayor in 1996 said she had not heard of the 1921 massacre until she was an adult.
But as President Biden reminded Americans on the massacre’s centennial: “Just because history is silent, it doesn’t mean it did not take place. And while darkness can hide much, it erases nothing. ... Some injustices are so heinous, so horrific, so grievous, they can’t be buried, no matter how hard people try.”
Eighty years after the Tulsa massacre, a bipartisan commission found that state and local officials had armed, authorized and commanded the White mob to wreak havoc on their fellow Americans. After a four-year investigation, the extent of the government’s culpability was laid bare. Tulsa and Oklahoma had engaged in one of the most brutal race-motivated massacres in U.S. history.
Now, with this evidence, survivors of the Tulsa massacre could sue the government for violation of their constitutional rights. A “dream team” of advocates was assembled, including Johnnie Cochran, Harvard law professor Charles Ogletree and historian John Hope Franklin. Our team filed a case in federal court in 2003, two years after the report was published. Law professor Eric Miller and I, then young lawyers on the team, drafted the complaint challenging the government-sanctioned massacre.
But our case was dismissed as untimely. Under the statute of limitations, our clients, more than 100 survivors (including Otis Clark, who was then 102 years old), were expected to bring their lawsuit two years after the massacre. That was almost 80 years before the government’s role in the death and destruction would be revealed. Back then, survivors were homeless, destitute and traumatized by this act of domestic terrorism. They were in no position to seek justice.
In recognition of such extraordinary circumstances, the federal judge set aside the two-year statute of limitations. But he also concluded that with the end of the Jim Crow era in the 1960s, it was reasonable to expect plaintiffs to file the lawsuit before the 2001 report’s publication.
It is true that shop owners had taken down the signs specifying “Negro” and “White” customers only, the Supreme Court had struck down “separate but equal” as unconstitutional, and Congress had enacted new civil rights laws. But many survivors, aggrieved by lifelong trauma and unaware of the government’s role in the massacre, still could not have filed then. Systemic racism and intimidation had hardly died with the Jim Crow signage. Regardless, the federal courts concluded it was too late for justice to be done.
This should not be the case. Statutes of limitations are the result of political will, or lack thereof. They reflect our society’s priorities and values by making it easier, or harder, or impossible to challenge misconduct. Legislators decide which claims and claimants matter. Filing deadlines might seem merely procedural, but they can deprive those with little power of the “day in court” promised to every American.
If ever there were an injustice crying out for resolution, it is the Tulsa race massacre. Acknowledging the tragedy is not enough. Faced with such egregious government abuse of power, lawmakers must insist on legal culpability, too. Justice is timeless — and, in this case, long overdue.
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