This past semester, Emily Prifogle hosted a series of conversations on “Race and Property in Historical Perspective”. As part of that series, she talked with K-Sue Park about her article discussing how she teaches property. This conversation seems likely to be of interest to LPE-ers who teach or study property (and others!). Some excerpts from that interview are below. A video of the full interview is here.
In my view, the histories of conquest and enslavement are key to understanding our property system, both why property remains such a major driver of racial inequality and also how it explains its history, explains the shape and the dynamics of the real estate market today. For me it’s also very important to show the connection between these histories and other parts of the traditional first year property law curriculum.
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Today, a lot of people can go through property law without learning anything about conquest or slavery, because the curriculum has largely been shaped without these histories, with some very notable exceptions, including [Richard] Chused and also [Joseph] Singer’s [casebooks], now co-edited by a number of great people.
Land and people were the two most significant forms of property by far at the time of the revolution: land and people constituted about 75% of colonists’ total wealth in 1774. The basic features of the land system come out of the process of conquest, and the anti-Blackness entrenched by slavery and the force of resistance to Black land ownership that erupted after abolition shaped many of the most significant aspects of land policy in the country thereafter.
So, how do I teach these topics? I fit a lot of what I teach about them into a unit where a lot of property law classes start: the lessons on theories of acquisition, where I cover discovery, labor, and possession. I start the first class, though, by introducing land as our subject. Most property law classes are primarily, if not only about property in land. I show them (my students) a time lapse map that shows Native nations’ land loss—about 1.5 billion, acres, after 1776—through treaties; you can click and see every treaty, and what land was ceded. And I emphasize that the residential and commercial real estate in the US now currently is worth about $51 trillion. So it’s a huge market; there’s a lot at stake. And my intro lesson is about the most basic way that we organize land as property, through our surveying and recording systems.
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This introduction sets me up well to talk about Discovery, labor, and possession, which is where I turn next. For Discovery of course I use Johnson [v. M’Intosh (1823)], which, as I explain, is really a case about two kinds of chains of title: sovereign chains of title between European nations and individual chains of title in the US that stem from the sovereign. The inter-European order that the Discovery Doctrine establishes begins of course with the papal bulls that drew a hierarchical line between tiers of humanity and authorized Christian Europeans to go out and declare war on, enslave, and take the possessions of non-Christian non Europeans. This launches the Portuguese in building the transatlantic slave trade in the 1450s—that trade was of course later joined by the English—and also the European conquest of lands that John Marshall describes in parts of his decision in Johnson that are usually edited out.
The Discovery Doctrine as everyone knows, describes the source of the government’s sovereign jurisdiction over lands, which, it’s important to point out, is the basis of doctrines we learned later in the course like takings and zoning (zoning isn’t a doctrine, but you know what I mean). Labor and possession are importantly connected to discovery. Because discovery sets up a two tier rule: Europeans got a presumption right to claim lands and people that no other European sovereign had claimed yet. So this is the first in time rule, but to solidify their claim, they had to take actual possession. And that’s the lesson you get in Pierson v. Post (the case about fox), that actual control or possession justifies the entitlement. That principle worked as part of the international order for land claims, as well as foxes. How a European nation took possession, actual control, was an open question. The Spanish famously did it by the sword, and the English took great pride in settling and purchasing lands, by contrast—which is to say that they used legal means, which means that these activities played a big role in shaping the law over centuries, especially property law. The activities that were involved in settlement, cultivation, and enclosure of lands were the labor that to them justified their claim, so that the settlement described by the labor theory was historically one of the principal means by which the English took actual possession. It’s important to me to connect these topics, discovery, labor, and possession; they were very closely linked historically.
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When I turn to the lesson on labor—I know people like to teach INS v. Associated Press, but I think it’s really important to keep building the story of the land system, since it’s a very long and big one. And I explained that the labor theory was one of the most important ideological justifications of conquest for hundreds of years. We go back to Locke and read some of Stuart Banner’s book on Native land loss and property to understand how the idea that certain kinds of cultivation and settlement created settlers’ entitlements to land. I tell them who Locke was. He was a secretary to the Board of Trade, which oversaw colonial administration (a lot of the old archival records I look at were “in the hand of Mr. Locke”). He was an investor in the Royal Africa Company and the merchant ventures to the Bahamas. He drafted the Constitution of the Carolinas. And there’s more. I think it’s interesting to note to students, that there are libraries full of books analyzing Locke’s scholarship, but the first essay taking into account his own implication in the colonial project did not appear till 1993. That’s some food for thought—three centuries without considering this context important to understanding his theory. It’s still fairly easy for the students to see how the labor theory operated within the framework set by the Discovery Doctrine, as a means of taking possession of land. They see that like the Discovery Doctrine, thanks to a lot of things that Professor Banner writes about Native agricultural practices, the labor theory applied to Europeans only, not recognizing or valuing Native land use, agricultural practices, settlement, or political organization like lots of scholars have written about.
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Let me say a few words now about how I teach about the history of slavery.
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Because of the labor element I teach about this history in my unit on the labor theory. The labor theory of course did not apply to enslaved persons or freed people. And there’s again a terrific little section about that in the Singer, Berger, Davidson, Peñalver [casebook]. This history again highlights how the labor theory worked within the parameters of the hierarchies created by the Discovery Doctrine. The labor theory applied to Europeans, not to the freed people who would work the land, who tried to mobilize the labor theory in order to argue for their entitlements to 40 acres and a mule. In this unit, I teach the case The Antelope to draw a parallel between that John Marshall decision and Johnson v McIntosh and to emphasize that the root of both conquest and slavery was in the international law of discovery and continued in many ways to be governed by international law.
I give a basic timeline of the development of the slave trade in the American colonies in the US and the International and the domestic laws that governed it. I talked about the scale of the trade, how many people it affected. About 600,000 of the 12 million Africans that were captured for the transatlantic slave trade were brought to mainland America, and about 4 million people took their freedom with abolition. I talk a little bit about the struggle to define land and people as real property or chattel property. There were debates about how to categorize them to best ensure credit flow to meet the credit needs of settlers and to meet the demands of creditors who wanted to be paid back. So the very terms of property, these basic designations of real property and chattel property, were shaped and determined by the process of colonization and the development of the slave trade.
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I want to emphasize that this chapter is really not a holistic overview about how to teach race in the property law course. That would have taken many many more pages. I really concentrated on suggestions for how to teach the histories of conquest and slavery, because those are topics that seem less accessible to people, less known. What I try to show is that they lay down basic frameworks. They explain the deep structural nature of how this land market in the US created value through racial exclusion and violence, and the great force of anti-Blackness and resistance to Black land ownership that survived slavery and grew after abolition, that explains topics that you can teach later in your course like racial zoning, racially restrictive covenants, the FHA’s transformation of the real estate market with the creation of the suburbs through redlining. To me, it makes all of those topics much easier to teach, easier for students to understand and makes it less likely that they will be uncomfortable add-ons to the class and more clear as a basic essential part of the system that we have.
