The Tulsa Race Massacre and the Substance of Law: Reconsidering Equitable Tolling/Estoppel in Cases of State Sponsored Civil Violence

In 2004, the 10th Circuit Court of Appeals affirmed an Oklahoma district court ruling that victims of the 1921 Tulsa Massacre were not eligible for equitable tolling of the statute of limitations and thus could not legally pursue restitution for damages incurred during the incident. In that case,Alexander et. al v. Oklahoma (2004), surviving victims’ petitions were denied by both District and Circuit Courts on the grounds that the “exceptional circumstances” which permitted equitable tolling of the statute of limitations had subsided. However, the vicious climate cultivated by Jim Crow wasn’t completely eliminated by the Civil Rights legislation of the 60s, and, further, ongoing harms may be in part enabled by our hesitance to recognize and rectify past injustices. As such, this essay argues for a reconsideration of the practical application for the law to permit reasonable exceptions to equitable tolling of the statute of limitations under extraordinary circumstances as exemplified in the Tulsa Race Riots of 1921 and subsequent circuit court case, Alexander et. al v. Oklahoma (2004).

The Tulsa Massacre

In the wake of World War 1, the 35-block Greenwood District of Tulsa, Oklahoma, otherwise known as “Black Wall Street,” was one of the most affluent African American neighborhoods in the United States. On the morning of May 30, 1921, a young African American man, Dick Rowland, interacted with a white woman, Sarah Page, during a brief elevator ride. The exact nature of their interaction is unclear, but, when Page alleged rape, Tulsa police arrested Rowland the next day. [1]

Although Rowland’s charges were later dropped due to the questionable nature of the allegations,inflammatory articles promulgated the rumors of this alleged rape, prompting white agitators to quickly form a lynch mob for Rowland. Aware of this, a crowd of largely Greenwood residents decided to intervene with a large crowd gathering in front of the courthouse where Rowland was held. When a white man approached one of the black men gathered in Rowland’s defense and tried to take his gun, spurious shots rang out, and the mounting tensions on either side were released. Two days later, the 35 blocks of Greenwood were ashes, over 800 people were injured, and an estimated 100-300 dead at the hands of violent whites. 

This event cannot accurately be labeled a riot, however, as this was not two equal sides in civil conflict, but a concerted effort to destroy the community of Greenwood. Despite municipal and county authorities’ awareness of the growing tensions between the Tulsa and Greenwood communities in the days leading up to the riot, they “did not stem the violence but added to it.” [2] Once the violence broke out, civil officials deputized many of the white men involved in the disorder, providing them with weapons and ammunition, and participated in the destruction themselves. [3] Along with the Tulsa Police Department, the Oklahoma National Guard conducted mass arrests of “nearly all of Greenwood’s residents, removed them to other parts of the city, detaining them in holding centers.” [4] When the smoke cleared, 1,256 homes were in ashes along with every community building. Damages totaled $2 million in 1921 dollars, $29 million in 2021 dollars. 

In the wake of the massacre, the city of Tulsa convened a Grand Jury that indicted African American victims while exonerating white arsonists and murderers, demonstrating the state’s sympathetic attitude toward the white mob that attacked Greenwood. This meant that victims’ attempts to seek justice in the immediate wake of the massacre were already weakened by precedent establishing the innocence of white participants and guilt of Greenwood victims. Seeking legal recourse for the harms of the 1921 massacre was not allowed its fullest legal expression until the 2004 district court case Alexander et. al v. Oklahoma, wherein surviving victims of the massacre attempted to secure restitution for the state-sponsored attack. They were backed by an Oklahoma State Commission Report, which comprehensively documented the state’s role in the massacre. Nonetheless, the court decided that procedural concerns related to the statute of limitations were of greater concern than delivering justice to a scarred community.

Legal Background

Until Alexander v. Oklahoma (2004), over one hundred lawsuits had been filed by Tulsa Massacre victims and their descendants without any success. [5] Rather than being given any consideration, “most [of these lawsuits] languished without even a cursory glance at the merits.” [6] However, in 1997 the Oklahoma legislature created the “Oklahoma Commission to Study the Tulsa Race Riot of 1921” to investigate the surrounding circumstances of the riot and provide recommendations to the legislature and governor. [7] The commission’s “Final Report” (2001) condemned municipal and state authorities for their complicity in arranging “a collective body…[to] deliberately and systematically assault one victim, a whole community.” [8] Equipped with this newfound knowledge, victims and their direct descendants filed a federal suit in the Western District of Oklahoma. Here, Judge Ellison denied the plaintiffs’ relief holding that, although the commission report validates plaintiffs’ claims of state complicity in the massacre, the statute of limitations barred any justiciable action. [9] The victims of the massacre appealed to the 10th Circuit of Appeals, where their claim was denied by a three-judge panel on the same statutory basis. Their petition was reviewed en banc (by the full circuit panel of judges), where the victims were once again denied a retrial, with four judges dissenting. Despite the court’s rejection of the Tulsa massacre victims’ claim on the basis of the statute of limitations, it is worthwhile to examine the legal merits of the petitioner’s argument to understand how reparative justice can be achieved in clear cases of state perpetrated harm. 

Equitable Tolling/Equitable Estoppel

Oklahoma’s statute of limitations for civil rights violations is two years, pursuant to Okla. Stat. tit 12, § 95, and, upon this basis, the state claimed that the victims’ claims were time-barred. [10] The victims countered this argument, however, by asserting that equitable tolling and/or equitable estoppel “either toll the statute of limitations or operate to prevent the statute of limitations from barring their claims.” [11] The victims  argued that the state was equitably estopped from invoking the statute of limitations due to the city’s concealment of its role in the massacre and consequent promises to provide restitution that were never fulfilled. [12] The victims also extended claims for equitable tolling, which focuses on the “conduct and diligence of the plaintiffs.” [13] They argued that the ultra-violent racial climate present in Tulsa following the massacre constituted “extraordinary circumstances” that prevented the victims from pursuing legal recourse successfully and that, without the Commission report, they didn’t have enough information to substantiate their claims. [14]

State Concealment

To begin, the victims made three distinct assertions of concealment or fraud. First, they indicate that the Grand Jury report indicting Greenwood victims was backed by the city, meaning that the city was directly involved in the unjust treatment of Greenwood victims. [15] Second, they argued that the city had no intention of investigating white rioters, as evinced by their complete refusal to even attempt to charge white mob members with crimes relating to the event. [16] Finally, the victims maintain that the disappearance of pertinent files and documents from the records of the Tulsa Police and Oklahoma National Guard are in themselves acts of concealment. [17] However, the court found that the degree of the city’s concealment was meaningless given the victims’ invalid argument that concealment prevented public knowledge of the state’s complicity at the time of the massacre. In other words, the victims’ argument that the city’s concealment hid relevant evidence until the 2001 Report was invalidated by evidence demonstrating victims’ prior attempts to seek restitution against the city. [18] Referring to hundreds of unsuccessful suits and a police posting in a white Tulsa newspaper which requested the return of guns following the “Negro uprising,” the panel claims it would have been impossible for black Tulsans in 1921 to live in ignorance of the state’s complicity. [19] The court cites victims’ previous attempts to seek justice, which were largely unsuccessful due to the perception of the massacre as a “Negro uprising,” to suggest that the state was innocent despite the integral role the government played in proliferating that negative perception. [20] By not addressing the initial state complicity, the logic of the court’s judgement here seems to be an extension of that very same state concealment, rather than an attempt to rectify it. 

The plaintiff’s other estoppel claims alleged that the city promised to “’make good the damage, so far as can be done, to the last penny.” [21] However the court found that this promise wasn’t corroborated by the formal complaint and dismissed it. Once again using the plaintiff’s allegations against them, the Circuit Court cited the city’s new zoning restrictions following the massacre which made it “prohibitively expensive” to rebuild as evidence suggesting that the city’s promises were never really meaningful. [22] Unfortunately, the racially hostile climate of the day was used to disprove the Plaintiff’s claim that they had any earnest belief in government restitution. This is an unfortunate self-fulfilling prophecy which allows for cyclical injustice. Even if the government did claim to repair the damage, it could default on that promise with no fear for victim recourse as courts could simply claim that external racist policy/events invalidate the responsibility of the initial promise for justice.

Exceptional Circumstances

Since neither the state’s role in concealing the massacre nor their unfulfilled promises of repayment were deemed sufficient to merit legal recourse, plaintiff’s arguments included claims for equitable tolling under extraordinary circumstances that prevented them from seeking legal recourse. Plaintiffs argued that four factors characterized exceptional circumstances meriting tolling: “(1) an openly hostile racial environment, (2) denial of responsibility by governmental officials, (3) the grand jury's exoneration of white rioters, and (4) the grand jury's indictment of African-American victims.” [23] The court acknowledged the presence of an extremely violent racial climate which circumscribed Tulsan’s avenues for legal recourse immediately following the massacre, but claims “there is no credible allegation that any of the other exceptional circumstances continued until the Commission Report was published.” [24] Thus, the court found that the victims could have litigated at some point before 2001 but, without specification of a precise date where accrual began, they are left without a true sense of when Jim Crow violations could have been legally rectified.

The court’s preoccupation with the procedural background of the victims’ argument overlooks their central argument that “the continued renunciation of government culpability by those in power created an impenetrable barrier to justice.” [25] Judge Lucero’s dissent highlights the Oklahoma state legislature’s response to the 2001 Report which, for the first time, recognized that the massacre “was virtually forgotten [but]…The 1921 Tulsa Race Riot Commission has forever ended the `conspiracy of silence' surrounding the events in Tulsa of May 31-June 1, 1921, and their aftermath.” [26] The state itself admits that the 2001 Report is what finally ended the conspiracy of silence surrounding the massacre; Judge Lucero emphasizes that “the fact of admission of responsibility and the fact of renunciation of the grand jury findings were not present until 2001,” and as such, the court’s finding  that state concealment did not hinder discovery is deeply flawed.  [27] Oklahoma state legislatures only officially recognized the state’s complicity in the riot following a state-authorized report, suggesting that no amount of civil due diligence would have prompted such admission prior. [28] At minimum, a jury should have been allowed to decide on the merits of the fraudulent concealment as well as exceptional circumstances questions to establish equitable tolling with a more thorough reconsideration of equitable tolling practices following.

Practical Applications

The dismissal of Alexander et. al v. Oklahoma (2004) may be further evidence that the judiciary is not the place for historical rectification of civil rights violations. Historical reparations through other avenues have been granted to other historically oppressed groups, such as the victims of the 1923 Rosewood Massacre in Florida or victims of Japanese internment, both receiving restitution via legislation. [29] Despite this precedent, the Oklahoma legislature did not grant reparations following the 2001 Report.

As such, the rejection of the victims’ claim on the procedural basis of equitable tolling when they sought a hearing for substantial government denial of culpability in civil violence is deeply concerning. While potential solutions like rewriting the actual standards for equitable tolling would take time, an immediate demand to the court is a more democratic evaluation of these equity cases through juries, rather than panels, to determine what evidentiary elements foreclose a time bar defense. The hope of reforms is not to refer injustice to other branches of the government, but understand how the courts themselves can be tools for justice.
Today, the youngest plaintiffs from Smith et. al v. Alexander (2004) would be almost 100 years old. As time passes, the potential justiciability of any claim to restitution for victims of the Tulsa Massacre diminishes. Some legal scholars would say this is to protect the principled interests of the law, while others may claim that time has mitigated the proliferative impacts of the massacre. However, if one thing seems abundantly clear, it is that the evaluation of law on strictly procedural grounds has potentially foreclosed one of the last avenues to justice left for this community.

References

[1] Alexander v. State of Oklahoma, Case No. 03-C-133-E, 5 (N.D. Okla. Mar. 19, 2004).

[2] Ibid, at 6.

[3] Ibid, at 6-7.

[4] Ibid, at 7.

[5] Alexander et. al v. Oklahoma (2004), J. Lucero, Dissenting, 1159.

[6] Ibid, at 1159.

[7] Ibid, at 1160.

[8] Ibid, at 1160.

[9]Alexander et. al v. Oklahoma (2004) at 26.

[10] Ibid, at 15.

[11] Ibid.

[12] Ibid, at 16.

[13] Ibid, at 16.

[14] Ibid.

[15] Ibid, at 17.

[16] Ibid.

[17] Ibid.

[18] Ibid, at 18.

[19] Ibid, at 19

[20]Alexander et. al v. Oklahoma (2004), J. Lucero, Dissenting, 1163.

[21] Ibid, at 20.

[22] Ibid.

[23] Alexander et. al v. Oklahoma (2004), J. Lucero, Dissenting, 1161.

[24] Ibid, at 23

[25] Alexander et. al v. Oklahoma (2004), J. Lucero, Dissenting, 1162.

[26] Okla. Stat. tit. 74, § 8000.1.

[27] Alexander et. al v. Oklahoma (2004), J. Lucero, Dissenting, 1164.

[28] Ibid.

[29] (Fla. Sess. L. Serv. Ch. 94-359 (C.S.H.B. 591), 13th Leg., 2d Reg. Sess. (May 4, 1994) (Westlaw, FL-LEGIS-OLD file) (appropriating funds to the victims because “[t]he Rosewood Massacre was a unique tragedy in Florida’s history in that the [s]tate and local government officials were on notice of the serious racial conflict…and has sufficient time and opportunity to act to prevent the tragedy, and nonetheless failed to act…”), H.R.442 - Civil Liberties Act of 1987, 100th Congress, (1987-1988), https://www.congress.gov/bill/100th-congress/house-bill/442