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Thomas W. Mitchell,
Excerpted from: "From Reconstruction to Deconstruction: Undermining Black Landownership,
Political Independence, And Community Through Partition Sales of Tenancies in Common",
Northwestern University Law Review 505 - 580, 505-511 (Winter 2001) (Citations
omited)
Forty acres and a mule. The government broke that promise to
African American farmers. Over one hundred years later, the USDA
broke its promise to Mr. James Beverly. It promised him a loan
to build farrowing houses so that he could breed hogs. Because
he was African American, he never received that loan. He lost
his farm because of the loan that never was. Nothing can
completely undo the discrimination of the past or restore lost
land or lost opportunities to Mr. Beverly . . . .
Within the African American community, the history of the
federal government's failure to deliver "forty acres and a mule"
to African Americans after the Civil War has been kept alive from
one generation to another. For many African Americans, the
aborted land reform initiative represents more than just a
discouraging chapter in the failed Reconstruction period. The
broken promise has become a metaphor for the continued
unwillingness of the government to provide African Americans with
the same range of economic opportunities that it has afforded
white Americans to integrate African Americans into the economic
mainstream of society.
African Americans today not only feel betrayed by the
government's retreat on land reform during Reconstruction, but
also by the perception that the government has played an active
role for the past half century in dispossessing land from African
American families who overcame great obstacles to acquire land on
their own. This perception is particularly strong in rural
African American communities and was vocalized time and again in
public forums held prior to Pigford v. Glickman in 1999, the
landmark class action lawsuit filed by African American farmers
against the United States Department of Agriculture (USDA).
Despite strong opposition from many African American farmers, the
federal judge in Pigford determined that the then proposed
consent decree was a "fair, adequate and reasonable settlement of
the claims" brought by the class of African American farmers.
In arguing that the settlement should be approved,
plaintiffs' counsel projected that the settlement would cost the
federal government $2.25 billion, which would make it the largest
civil rights case settled by the federal government in U.S.
history. Under the consent decree, African American farmers like
Mr. Beverly may receive a $50,000 cash payment and have all of
their outstanding debt to the USDA that was affected by
discriminatory conduct of USDA officials discharged. Moreover,
African American farmers are entitled to some limited, forward-looking injunctive relief. More than anything else, however,many
African American farmers who lost their land through foreclosure
as a direct result of the USDA's discrimination made clear that
they wanted the government to restore their land to them. Under
the consent decree, however, most successful claimants will not
have their land returned.
It is likely that at least a few of the class members in the
Pigford lawsuit lost land that had been in their families since
the Reconstruction period. The predecessors of these class
members were not the only African Americans who acquired land in
the years immediately following Emancipation. Though largely
unknown and uncelebrated within or outside of the African
American community today, African Americans acquired
approximately fifteen million acres of land in the South in the
fifty years following Emancipation. As much as any group of
Americans in this nation's history, these landowners embraced the
republican ideal of the rural smallhold and widely distributed
ownership, and believed that only through such ownership could
real economic and political independence be achieved.
As we enter a new millennium, the pattern of landownership
in the rural African American community represents the mirror
opposite of the trend in black land acquisition one hundred years
ago at the dawn of the twentieth century. A remarkable history
of land acquisition has given way to extraordinary levels of land
loss in the past half century. Today, the most current census of
agriculture reveals that African American owner-operators of
farms--whether full or part owners--own at most little more than
two million acres of land in the United States. Despite hard-fought struggles to retain their land, many African Americans
have lost land involuntarily.
Even the USDA has acknowledged that for many farmers,
"especially minority and limited-resource farmers," land loss has
been involuntary. This Article focuses on one of the primary
causes of involuntary black land loss in recent times--partition
sales of black-owned land held under tenancies in common. A
partition sale can be viewed as a "private" forced sale of land
held under a concurrent ownership arrangement, typically a
tenancy in common. The combined effect of two sets of legal
rules contributes to the loss of black- owned rural land as a
result of partition actions. First, like many other poor
Americans, rural African American landowners have tended not to
make wills; at the owner's death, state intestacy laws enable a broad class of heirs to acquire an interest in real property of
the decedent. Interests in property transferred by intestacy
from one generation to another become highly fragmented,
splintering the fee into hundreds and even thousands of
interests. A tenancy in common so splintered is commonly referred
to as fractionated heir property or just heir property.
Second, the resulting tenancies in common are governed by
common ownership rules that fail to distribute rights and
responsibilities fairly among the tenants in common. Any tenant
in common, whether a cotenant holding a minute interest or a
substantial interest, may force a sale of the land, thereby
ending the tenancy in common. Any cotenant may sell her interest
to someone outside of the family or ownership group, bringing a
stranger into the circle of cotenants, without seeking the
consent of the other cotenants. Despite these broad powers,
there are no corresponding obligations to contribute to the
ongoing costs of maintaining the property.
Opportunistic lawyers and land speculators have taken
advantage of these legal rules in order to force sales of black-owned land. Many times, family members know--or learn from an
outsider--that they own an interest in a tenancy in common and
decide to cash out. Although some of these people seek legal
assistance, many of these people do not want the entire land
sold. Many of these family members exit the tenancy in common by
selling their interest to nonfamily members. They often do not
know the financial pressure this may place on other cotenants who
may wish to remain on the land or to preserve it for the family.
Unbeknownst to the family member, the buyer often takes the
interest with the underlying motive of seeking a partition sale.
Even the partition actions initiated by family members who seek a
sale of the property tend to be brought by "heirs who are
physically removed from the land."
Part I of this Article examines how the legal rules
governing land owned under tenancies in common contribute to
black land loss, especially as they pertain to tenancies in
common that have become highly fractionated over time as land is
transmitted from one generation to another by way of intestacy.
As indicated, the very rules governing tenancies in common do not
fairly allocate rights and responsibilities among cotenants no
matter how consolidated the fee may be. This Part also
demonstrates how a large percentage of land owned by rural,
African American landowners has become highly fractionated over
time through transfers of land by way of intestacy.
Part II of this Article reviews the history of the African
American land imperative that fueled land acquisition in rural
African American communities in the first fifty years after
Emancipation. The history falls into two periods. In the first
period, between 1865 and 1910, hundreds of thousands of rural
African Americans acquired land, mostly in the South. Black
landownership stabilized between 1910 and 1920. After 1920,
rural black ownership began a steep decline that paralleled the
demise of the black farmer in America. Black land loss is tied
to the demise of the black farmer both directly and indirectly.
The "Great Migration" of African Americans out of the South--spurred in part by the boll weevil and other natural disasters
that caused widespread crop failures--led many blacks to abandon
their land and left those who maintained ownership with less
security of tenure. Furthermore, the USDA's systemic and
persistent discrimination against black farmers throughout much
of the twentieth century caused many black farmers to lose their
land involuntarily through foreclosure and forced others to sell
their land under distress conditions.
Part III of this Article demonstrates that both political
and property theory support the view that minority landownership
can promote dynamic community life and facilitate greater
democratic participation for groups historically at the margins
of American political life. The theories of "democratic
property" articulated by an eclectic group of thinkers ranging
from John Locke to W.E.B. Du Bois have been borne out in case
studies of particular rural communities. In these communities,
those who acquired land participated in the political and civic
lives of the wider society at a higher rate than those similarly
situated who did not own land.
Part IV of this Article demonstrates that in some areas the
law supports stable land-based communities or groups because of a
legislature's or a court's belief that there is an important link
between stable group ownership of land and community. In these
instances, legislators or judges have made a judgment that the
particular land-based group constitutes an important community
that merits legal protection and support in its effort to
maintain its landownership intact. For example, courts have
liberalized the application of the rules against restraints on
alienation as applied to residential housing schemes such as
condominiums and cooperative housing arrangements. For other
groups, such as African Americans who own land under tenancies in
common, judges have not considered it important to support the
preferences of the ownership group to maintain their ownership of
the land on an ongoing basis. Judges in partition actions, for
example, have considered landownership and monetary distributions
from a sale of the land to be fungible; the value of stable
communities has been ignored or minimized.
Part V of this Article offers a series of proposals that
would stabilize and promote landownership in rural African
American communities. These proposals advocate government
intervention to promote enhanced landownership--both
quantitatively and qualitatively--for African Americans. Many of
the reforms proposed in this Article are not race specific; land
tenure for all rural landowners and small farmers generally would
be strengthened should some of the proposals be enacted.
Reforming the state laws of intestacy to narrow the class of
heirs to whom property may pass could prevent fractionation of
the ownership interest in the first instance. So, too, public
interest lawyers and community activists could work to educate
landowners about the importance of estate planning with the goal
of family land retention. Such reforms, however, would only
marginally impact ownership interests that already are
fractionated. In these cases, the horse is already out of the
barn. Instead, this Article maintains that the problem of
fractionated heir property within the rural, African American
community justifies more fundamental reform of common property
law and the creation of government institutions that would have
the capacity to help those who own heir property restructure
their ownership in a way that the ownership could be stabilized
and the property could be used productively. Though such
government institutions do not currently exist in the United
States, such institutions have operated for decades in other
countries around the world. In Norway, for example, the
government first established institutions in the 1800s to help
landowners consolidate their fragmented holdings so that land
could be used more productively in rural areas.
Given the unfulfilled promise of land reform after the Civil
War and the subsequent efforts to undermine those African
Americans who acquired land with little to no support from the
government, our society has a clear moral obligation to reverse
the processes that have stripped black landowners of their land.
The United States would not be alone in such an endeavor. The
Vatican recently urged major land reform in poor countries on
moral grounds. Reforming laws in the United States to promote
land acquisition and retention in African American communities
would be consistent with this international focus on promoting
just patterns of land distribution. Moreover, landownership has
facilitated participation in the larger society for those given
the opportunity to acquire land. For this reason, strengthening
the ability of African Americans to maintain landownership should
specifically concern those interested in a more vibrant
democracy, who are sympathetic to increasing the participation of
African Americans and reversing their historic marginal status.
As case studies have demonstrated the link between
landownership and healthy community life, land tenure reform
provides a tested strategy, consistent with the American liberal
tradition, to promote racial justice and a more democratic
society. This would suggest that the federal government's
possible payment of $50,000 to Mr. Beverly without restoring his
farm to him not only fails to make him whole economically, but
also leaves him one short in the "bundle of democratic tools"
that he formerly possessed. Although the court in Pigford took
the fatalistic position that "[h] istorical discrimination cannot
be undone," our legal institutions should do their best to make
whole, both as economic and civic actors, African Americans who
were unfairly dispossessed of their land. Short of this, the
federal government should act now to ensure that rural, black
landownership does not become merely an interesting, short-lived
chapter in American history.
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