Excerpted From: Kara W. Swanson, The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass, 54 Connecticut Law Review 1005 (July, 2022) (112 Footnotes) (Full Document)

KaraWSwansonIn this Essay, I focus on the Symposium's subtitle: “What's the Law Got to Do With It?” In one sense, the answer to that question is easy. Since 1921, Black Tulsans have been looking to law and lawyers to address the harms inflicted during the Tulsa Race Massacre, with little success. Lawyers can translate experiences into the language of law to seek remedies in court. I was asked, however, to address the startling lack of recognition of the Massacre--that is, the seemingly impossible feat of forgetting the racially motivated wholesale destruction of a community. Scott Ellsworth, my fellow panelist and author of the first scholarly history of the Massacre, has described the ways in which that forgetting was encouraged and perpetuated.

There have been many layers to this forgetting over the last 100 years. As a historian, I am particularly struck by the deliberate efforts of white Tulsa to destroy and lose the documentary evidence of the event--efforts that Ellsworth encountered in his research. He found pages sliced out of surviving copies of a local white-owned newspaper to hide its editorial incitement of anti-Black violence, missing files, and rumors of disappearing boxes of photographs. The silence may have begun in Tulsa, but it has spread throughout Oklahoma and other states. In social studies classes, in history textbooks, and in popular books, the Tulsa Race Massacre--perhaps the most extensive racially motivated destruction of a community in the twentieth-century United States-- has been simply absent, even as the survivors and their descendants remembered.

In this Essay, I focus on one space of non-recognition of the Massacre, law schools, and on property law classrooms in particular, as they are a near-universal aspect of U.S. legal education. Due to this general forgetting, U.S. lawyers learn what property is and how the law defines, shapes, and protects it without any knowledge of the Massacre. As the Symposium's organizers have acknowledged, this ignorance has costs. Without knowledge of the Massacre, lawyers are ill-equipped to answer the question, “What's the law got to do with it?” We cannot use law to change injustices that we cannot see.

The costs of such ignorance on the part of lawyers reach beyond the bounds of Tulsa, as important as localized discussions of the Massacre are. To explore these deeper costs, I have rewritten the Symposium's starting question to ask: what might we learn if property law was taught with knowledge of the Tulsa Race Massacre? My short answer is that we all, as lawyers, would learn about race and property in ways that would not only better equip us to engage in the crucial ongoing tasks of reevaluation, reparations, and redress with respect to Tulsa, but also to understand how property works in each community in the United States. The events in Tulsa from May 31, 1921 to June 1, 1921 offer new insights into what Professor Cheryl I. Harris, another Symposium participant, demonstrated decades ago: “rights in property are contingent on, intertwined with, and conflated with race.”

For my long answer to the Symposium's question, I invite you to join me in reconsidering a lesson that is included early in most property courses: a lesson in the law of trespass. By incorporating the Tulsa Race Massacre in this lesson, we consider Black Americans as successful property owners, a role in which they seldom appear in a property course. I consider how, once students have learned the definition and purpose of the trespass doctrine, often considered foundational to the very meaning of property, we could then review the doctrine with attention to the events of the Massacre, asking who committed trespass against whose property and assessing the legal consequences or lack thereof. The revised lesson would encourage lawyers to be attentive to their roles in defining and enforcing property rights in racialized ways. By recognizing the conflation of property rights and race in U.S. law, a truth grounded in history, we gain the power not just to address history, as important as that task is, but also to avoid repeating it. With that power comes the ability to make a different future by disrupting historic relationships that have tied property and power to racial identity.

Before getting to the lesson itself, I offer a précis of the Massacre that could serve to introduce it to students. Like many teachers, I rely heavily on resources prepared by others. The précis is prepared from my reading of the historiography. Just as there has been a recent effort to reconstitute a shared knowledge of the Tulsa Race Massacre, there has also been an ongoing effort to educate lawyers who are familiar with the interactions between racial identity and property law. I briefly review the existing scholarship and teaching materials on race and property that have formed part of my own journey from student to lawyer to teacher in the property law classroom and that undergird my efforts to rethink my pedagogy in response to the challenge raised by this Symposium.

[. . .]

Thirty years ago, Joseph Singer demonstrated how it can be shocking and effective to show future lawyers that United States Supreme Court cases on American Indian law lead inexorably to the conclusion that:

[I]f we want to help a client determine the extent of its property rights, the first thing we need to know is whether the client is an American Indian nation or, say, a business corporation. The law provides a certain level of protection for the interests of General Motors and quite a different level of protection for the interests of the Yakima Nation. Imagine having to explain this to a client, and being asked why.

The Tulsa Race Massacre offers an opportunity to make a similar comparison between the white Wisconsin farmers, Harvey and Lois Jacque, and Black Tulsans, such as the Williamses. The Massacre returns us to a moment in which Black Tulsans acquired both real and personal property, were threatened by trespassers bent on theft and destruction, attempted self-help, and found both self-help and the legal system insufficient to protect their assertion of property ownership. Considering the law of trespass in this historic context “appears to reverse the abstract principles” taught as bedrock property law.

Applying the clear terms of Jacque can lead only to the conclusion that the property rights of Greenwood residents were “hollow.” During the Massacre, they were hollow as the state defended white property and facilitated the destruction of Black-owned property. After the Massacre, they were hollow as claims for compensation by Greenwood residents were denied by the City and the courts. In 1997, the same year that the Wisconsin Supreme Court approved $100,000 in damages to repair the “actual harm” to the Jacques, the Tulsa Race Riot Commission began its work and, eventually, in 2001, it recommended reparations to Massacre survivors. The Oklahoma legislature refused, however, and instead passed a bill that gave each a “gold-plated medallion.”

The Tulsa Race Massacre offers a lesson that the ownership of real property in the United States is not only racialized through the legal ratification of conquest, with racially discriminatory treatment of possessors that systematically dispossessed Native peoples, but also through extralegal means that took property from United States citizens. The survivors of the Massacre had deeds and bills of sale. They had paid dollars for their possessions. In sum, they made property claims through the same activities as white Tulsans. Yet, non-owners were allowed to trespass at will and property owners were denied the state's endorsement of their rights--that is, when the trespassers were white and the property owners were Black.

If I offer my students the classic definition of trespass with knowledge of the Massacre, we are forced to consider what asterisks are missing from the definition: “unprivileged, intentional intrusion onto property owned by another.” Is trespass in the United States, in many times and places, including Tulsa, Oklahoma on May 31 and June 1, 1921, more accurately defined as the unprivileged, intentional intrusion onto property owned by a white person? Or does whiteness confer the “privilege” that allows intentional intrusion onto property owned by Black people? This revised lesson requires us to wrestle with how, why, and when principles of law are seemingly reversed in ways that link what property is to how property ownership is sustained.

The Tulsa Race Massacre also offers a lesson on the limits of property law by focusing our attention on how much depends on the state endorsement Cohen identified. In Tulsa, that endorsement depended on the action of numerous individuals--sheriffs, police, National Guardsmen, grand jury members, and the mayor--choosing whose property claims to support, deciding what sort of self-help was tolerable, and determining who was allowed to use force.

These lessons are an answer to my starting question of what we gain if property law were taught with full knowledge of the Tulsa Race Massacre. We would gain lawyers with an added understanding of the complex historic relationship of race and property in the United States. Even the most seemingly straightforward rule shifts with the racial identification of the actors. Comparing the experiences of the Jacques and the Williamses prepares future lawyers to be attentive to the ways in which the rules that they learn only have meaning when people (including, but not limited to, those in the legal system) choose to apply them. It challenges those of us who nod our heads approvingly at the reasoning in Jacque v. Steenberg Homes, Inc. to consider the frustrations and claims of others whose property rights are ignored with all the sympathy that a Wisconsin jury and supreme court showed the Jacques, and to examine the reasons why that sympathy has often been absent.

These, of course, are not the only lessons the Tulsa Race Massacre offers property students. Brophy reminds us that the Massacre is worth studying as an example of one of many riots caused, in part, by racial segregation of housing. The same Jim Crow laws that helped the Greenwood business district prosper by providing a captive consumer base for Black businesses also provided a convenient locus for white anger at the growing wealth of the Black community by concentrating Black wealth in one neighborhood. As we discuss the forgetting, remembering, and reevaluation of the events in Tulsa, we also need to recognize that it is not the only such massacre to be deliberately forgotten. Each event like the Tulsa Race Massacre offers lessons to future lawyers, as well as opportunities for lawyers with an understanding of race and property law in United States history to participate in ongoing conversations about redress and reparations.

Professor of Law and Affiliate Professor of History, Northeastern University. B.S., Yale University; M.A./J.D., University of California-Berkeley; Ph.D., Harvard University.