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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.