Between the end of the Civil War and 1910, Black landowners came into possession of some 15 million acres of rural land in the American South, according to research published by Thomas W. Mitchell, now a professor at Texas A&M University School of Law. But by the end of the 20th century, their holdings had shrunk to just around 2 million acres. One reason for the massive loss of Black land was laws governing property held in common by heirs of landowners who didn’t leave wills before they died. As land passed through generations and the number of heirs grew, each heir had a chance to force a “partition sale” of a property that would then divide the proceeds among heirs. As ProPublica and the New Yorker wrote in a story co-published last year, “Speculators can buy off the interest of a single heir, and just one heir or speculator, no matter how minute his share, can force the sale of an entire plot through the courts.” These laws and practices have had broad implications for Black land ownership and wealth creation in the United States.
Mitchell has spent two decades researching the legal causes of Black land loss, and helped to design a law that gives groups of heirs a better chance at preserving ownership of their property if they choose to do so. Among other provisions, the law gives heirs the right of first refusal to buy out another heir’s ownership when they are seeking a partition sale. The law has since been enacted in 18 states and introduced in seven more. This year, Mitchell was awarded a fellowship from the John D. and Catherine T. MacArthur Foundation — a $625,000, no-strings-attached grant often referred to as the “Genius Grant.” In this Q&A, Mitchell talks with Next City about the foundations of his research on Black land ownership, and the future work he hopes the MacArthur Fellowship will support. The conversation has been edited for length and clarity.
You’ve talked about growing up in San Francisco and seeing Black residents and business owners being displaced because of a lack of property rights. I’m hoping you could talk a little bit about that experience, and what brought you to an interest in property law and Black land ownership.
My father was an African-American doctor who had moved to San Francisco in the early 1960s. Some people tell me he was the first African-American ophthalmologist. I’ve never gotten that verified, but if he wasn’t, he was one of the first few. He had a private practice on what was then the dividing line between one of the wealthiest areas of San Francisco, Pacific Heights, where Nancy Pelosi, among other people, lives, and what was called the Fillmore, which was predominantly Black. What started happening during my childhood was that San Francisco went through a process of urban redevelopment focusing on the Fillmore or the Western Addition, and basically saying that it was going to upgrade the Fillmore and make it better, but not revealing that what was either planned or likely to happen was that African Americans were going to be pushed out. And as the urban redevelopment process started, I saw more and more people displaced.
I went to a very fancy private school in Pacific Heights about six blocks from my dad’s office, where among other people I went to school with Nancy Pelosi’s kids. I’d get off of school at 3 p.m. and I’d walk to my dad’s medical office. And if I did my homework I could go visit his friends in the neighborhood who included the Black optometrist, a Black barber, and a Latino pharmacist. At the school I went to, I was basically the only African-American. And so I really enjoyed going to see my dad’s friends. But one by one, they got pushed out through this urban redevelopment process. And I experienced that as a real loss.
When I was applying to the University of Wisconsin, that whole idea of African Americans being displaced was something that, beginning when I was 8, 9, 10 years old, it was something I was thinking about, even though I’d never taken an urban policy class or a housing class. I just realized it was kind of a throughline that I always thought about.
The other thing is that my dad was born in Newark, New Jersey, and was the first person [in his family] to graduate from high school, let alone college. He was estranged from his father, but when I was a junior in college my grandfather in Newark died. When I went to the funeral in Newark it was, to put it in religious terms, “there but for the grace of God go I,” because I had all this family in Newark that was desperately poor, living all of the inner-city problems that you could imagine. But they had a photo album going back to the family’s origins in Southwest Georgia. And all of a sudden I’m seeing this rural side of my family that I had never even seen pictures of. So I started thinking about how I could combine my interest in African-Americans being displaced with wanting to learn more about my African-American heritage. And I found a few newspaper articles about Black land loss, and that was kind of it for me.
The background to a lot of your research is that land loss is harmful economically. But you also write about the connections between property ownership, community building and democratic participation. Can you describe how those things are connected?
I stumbled across some literature — it doesn’t tell the story of causation, but it’s a correlation — and in the studies that I looked at, it showed that those who are property owners tended to vote at a higher level than those who were not property owners, and those who were property owners tended to participate more in civil society in a variety of ways. Whether it’s a causation or a correlation, oftentimes those who own property are wealthier, and you have more time, if you have a higher income, to participate in other areas of your life. I also discovered that during the Civil Rights Movement, some of the most important meetings that various civil rights leaders had in the south were on property owned by African-American landowners and farmers. They were able to have people come onto their land, they were able to have security to protect against those trying to come and disrupt the meetings, and they had a certain status in the community, where they were able to get other stakeholders to participate in whatever they were pushing in terms of the civil rights agenda. So the fact of being a property owner really facilitated the efforts to increase civil rights for all African-Americans and others.
Can you briefly describe how the property laws around “tenancy in common” contributed to Black land loss?
In the United States, there’s a massive racial will-making or estate-planning gap, among all these other racial gaps that we’re now talking about in our society. I’ll give you a data point: 65% of white American families have a will, and like 23% of African American families have a will. What’s even more shocking is that something like 75% of white Americans with a college education or more have a will but only 33% of African Americans with a college education have a will.
If you don’t have a will or estate plan, and you die owning property, and you have two or more heirs, your state then says that the heirs get the property as a tenancy in common. That is the most unstable form of common real property ownership in the United States. So because these families didn’t have a will or estate plan, they are getting this most unstable form of ownership. Families that are most impacted tend to be property-rich or land-rich and cash-poor. They own property but have low income or low wealth, which makes them very susceptible to these sales, or to getting a fire-sale price because they can’t bid against people effectively when the property is put up for auction. African-Americans after the Civil War also ended up acquiring property that was not prime real estate. It was in a floodplain or it was near a swamp or it wasn’t near a readily accessible road. So that property that wasn’t prime real estate all of a sudden finds itself either newly in the path of development — a farm in a rural community where there’s urban sprawl, or in a city it could be in an area where you’re going through an intensification of real estate appreciation, like D.C. or New York, and so all of a sudden that makes the property a target. And then these families don’t have access to affordable legal services.
I’ve come to think about these families’ ownership as a continuing vestige of Jim Crow. After the Civil War the reality was there were hardly any Black attorneys in this country. Most of the land was in rural communities, where white attorneys would suffer a stigma if they represented a Black family, so as a practical matter these families didn’t have access to a lawyer. What I think happened over two, three, four, five generations is that maybe, initially having had literally no access to a lawyer became normalized within African-American families, because there had been no history of a will.
To back up a little bit, you found that Black landowners had accumulated 15 million acres or so after the Civil War and that shrunk over time to about 2 million acres. What are the implications of a loss of land of that scale for racial disparities and residential settlement patterns in the U.S.?
What our project is looking at is putting an economic value on land that African American farmers lost after 1910 or 1920. A conservative estimate is that that land today would be worth $350 billion. And why we say it’s conservative is that there’s all these other things we link with land or property ownership. There were homes on the land, so there was the value of the homes. The landowners’ children would have been more likely to get a college education than those who were not landowners. They would have been able to leverage their positions as a landowner, and earning income from the farm, to have off-farm income. We’re in the process of looking at a variety of other factors that would substantially increase the economic value of this loss. And then the economic value ties into all these other social values. If there were more educated folks who could be serving in a variety of different positions in our society, that would have all kinds of ramifications in terms of politics and all kinds of other metrics on social and economic status.
Are there connections between that loss of Black-owned land in the rural south and the migration of Black southerners to the urban north in the 20th century?
There were just people who sold their land, who were no longer interested in being on a farm, wanted to be in an urban center. That’s one group. That’s not a group I’m particularly worried about — they made a choice. But then there’s this other group that did get forced off but they got forced off through extra-legal means. Despite the common notion of lynchings being about lynching Black boys or men who were acting inappropriately vis a vis white women, it turns out that a significant number of African Americans in our history who were lynched were upwardly mobile — they were a threat to white supremacy. So they were targeted. Some of them were killed and their relatives then got the idea that this is not a safe place and they migrated. Others knew that they were maybe at some point going to be the subject of violence against them and so they kind of left. Some of that migration happened because of these extralegal means.
There’s another manifestation though, which is that as people migrated for a variety of reasons, over the course of a few generations, those extended family members had little connection with the property back in the South. Oftentimes they didn’t even know that the family had this ownership in the south. And then in many of these partition sales it’s been those distant relatives who are now in the third or fourth generation, third cousins or whatever, who oftentimes wherever they are living — Chicago, Detroit, L.A. — they are economically vulnerable, and oftentimes they are the ones that real estate developers or speculators target. When they’re contacted by one of these speculators and they’re offered $500, they didn’t even know that there was any property so to them it’s free money. And what’s really sad is usually, they’re taken advantage of, say their share is worth $5,000 and they accept $500 for it. And then they don’t realize that there’s this cascading impact from that decision, and part of that is because they’re dispersed, and they’re vulnerable.
So, congratulations on the MacArthur grant. How are you planning to take advantage of it?
At this point, the law reform and policy work that I’ve done in addition to my scholarship, the fact that I’ve actually gotten it done — to take an academic article and actually change the law in multiple jurisdictions — is kind of considered unusual for a law professor. That side of my work has been kind of like my night job that’s not really considered part of my job. So in some ways it’s been exhausting.
What I’m hoping to do now is to build a center, with staff and law students and graduate students, and the idea is that we would look at issues impacting disadvantaged communities in terms of their property rights, much more proactively, much more systematically and comprehensively. We would look at well, what impact has this law on the ground had? Where is it working well, what’s not working so well? And then we could look at a whole variety of other issues, problems that communities of color have with tax sales, with adverse possession, with eminent domain. And then we could do things like generate white papers that would analyze an area of the law and then come up with a variety of law reforms and policies, and then work on trying to interest relevant stakeholders.
I think my reaction when I found out about the MacArthur award, I was just kind of overcome in terms of what it symbolized. Obviously I’ve had successes since I started initially, when there were just[a] huge number of skeptics. But you never contemplate that you would be awarded a MacArthur Fellowship. I think that just put a certain stamp on the work I’ve been doing for 23 or 24 years now.
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Jared Brey is Next City's housing correspondent, based in Philadelphia. He is a former staff writer at Philadelphia magazine and PlanPhilly, and his work has appeared in Columbia Journalism Review, Landscape Architecture Magazine, U.S. News & World Report, Philadelphia Weekly, and other publications.