Academic journal article Michigan Law Review

On Black South Africans, Black Americans, and Black West Indians: Some Thoughts on We Want What's Ours

Academic journal article Michigan Law Review

On Black South Africans, Black Americans, and Black West Indians: Some Thoughts on We Want What's Ours

Article excerpt

ON BLACK SOUTH AFRICANS, BLACK AMERICANS, AND BLACK WEST INDIANS: SOME THOUGHTS ON WE WANT WHAT'S OURS

WE WANT WHAT'S OURS: LEARNING FROM SOUTH AFRICA'S LAND RESTITUTION PROGRAM. By Bernadette Atuahene. Oxford and New York: Oxford University Press. 2014. Pp. viii, 198. $42.50.

Most modern constitutions have eminent domain provisions that mandate just compensation for forced deprivations of land and require such deprivations to be for a public use or public purpose.1 The Takings Clause is a classic example of such a provision.2 The takings literature is essentially focused on outlining the outer boundaries within which the state can take property from an owner.3 But there are other takings that have been deemed "extraordinary"; in such circumstances, the state takes away property without just compensation and simultaneously makes a point about a person or a group's standing in the community of citizens.4

As Yale Law professor and leading scholar on property, Carol Rose, has noted, such takings typically accompany historical moments of great upheaval, such as wars, revolutions, or social unrest, and involve a complete reconfiguration of property rights.5 In the American context, for example, consider property taken from British loyalists, Native Americans, and Confederate slaveholders.6 The point was to express society's disapproval of groups deemed "outsider" or disloyal.7 More recently, the destruction of "Black Wall Street" in the 1921 Tulsa, Oklahoma race riots signified such a taking-government stood passively by while white thugs destroyed virtually every black-owned property in the business district.8 The point was clear: "uppity" blacks were not welcome in the business of capitalism-at least not as owners. Rose quite rightly notes that extraordinary takings often signal more terrible things to come. In Tulsa, several black citizens were brutally butchered shortly after the destruction, which still stands as the most murderous race riot of the twentieth century.9

For Rose, the quintessential example of such an extraordinary taking is the confiscation of Jewish property in Nazi-occupied Europe.10 Take Kristallnacht, or "the night of the broken glass," in Germany in 193711: German citizens, working alongside Nazi-affiliated thugs, destroyed the property of Jewish citizens, with nary an intervention from the German police.12 By the time the night was over, German citizens had destroyed the homes and synagogues of the Jewish citizens and thoroughly looted Jewish stores. Their clear objective was to terrorize Jewish citizens-the unspeakable began shortly thereafter.

Bernadette Atuahene's We Want What's Ours: Learning from South Africa's Land Restitution Program13 is an extraordinary contribution to the literature on extraordinary takings. Building on Rose's work, Atuahene argues that these takings are undertheorized (p. 23). Atuahene's concept of "dignitary takings" sheds light on this literature (p. 3). She appropriates the metaphor of the "invisible man" from Ralph Ellison's novel of the same name,14 in which an unnamed African American man is deemed "invisible." Atuahene argues that the taking of property and dignity deems persons "invisible" (pp. 30-31). This effect is especially pronounced when the confiscation of property is used to dehumanize and subjugate the citizens within- or remove them entirely from-the social contract (pp. 24-29).

In Part I, I summarize the key facets of Atuahene's argument, with a particular concentration on her concepts of dignitary takings and propertyinduced invisibility. In Part II, I emphasize that Atuahene's focus on the displacement of people of color-including blacks, Indians, and coloreds- in the Gauteng and Western Cape provinces of South Africa echoes Rose's discussion of the German Jews of Kristallnacht. Not only real property, but dignity, was "taken" in both of these processes. But Atuahene's notion of dignity takings, while an excellent academic contribution, might also be applied to the more difficult cases of potential takings from those who now constitute the majority of poor South Africans-that is, South Africans who never had even quasi-formal relationships with land. …

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