This post is part of a symposium on the LPE of Rural America.
“It is tempting to caricature property law as an archaic set of rules that govern the ownership of resources that used to be important—farmland…and the like.”
So says one of the leading property law casebooks, read by countless law students and professors. By boldly declaring that “farmland…and the like” only “used to be important,” this text gives voice to a perspective that we often encounter in our respective work on property law and rural landscapes: an erasure of the needs of living rural communities in popular discourse and a bias toward the urban in legal scholarship, perhaps especially in property-law literature.
Nowhere is this bias more evident than in discussions of race and racial inequality. Elsewhere, property scholars have done good and important work on the relationship between property law and the construction of racial difference. We know well, for instance, how property law has been used throughout history to direct valuable resources to white European settlers and their descendants. Indeed, one of this country’s earliest and most persistent legal projects has been to justify a western expansion of white land ownership, facilitated in turn by acts of colonialism, slavery, and explicit race-based exclusion in property law. And, now, property law remains complicit in and sometimes actively perpetuates ongoing race-based wealth disparities.
But research on racial disparities in property law tends to focus on the urban, constructing an important story of race-based segregation, housing crisis, and wealth disparity, but one that takes place almost exclusively on the city block or the suburban cul-de-sac. Richard Rothstein, for example, builds on the work of urban historians when he writes that “racially explicit government policies to segregate our metropolitan areas are not vestiges, were neither subtle nor intangible, and were sufficiently controlling to construct the de jure segregation that is now with us in neighborhoods and hence in schools” (emphasis added).
Although often overlooked, these same racial dynamics—of original race-based property distributions and the perpetuation of disparities through modern legal structures—also play out across rural landscapes and are just as important and foundational to contemporary generational wealth disparities for rural people.
Indeed, some of this country’s most notorious and persistent regions of concentrated poverty are both rural and racialized: the farming Black Belt of the Southeast, the Hispanic colonias along the Texas-Mexico border, and the Native American reservations of the Southwest and Upper Midwest. These regions of racialized rural poverty were also all actively shaped—in neither subtle nor intangible ways—by discriminatory property regimes: the disproportionate loss of Black-owned lands through property mechanisms like partition sales and tax foreclosures; the failure to honor the property rights of many Mexican Americans after the Treaty of Guadalupe Hidalgo; and a whole series of property experiments imposed directly on Indigenous people, including not only the many mechanisms of colonial displacement and dispossession but continuing into the modern reservation system, where the novel and problematic modern trust land status continue—through property law—to limit Native opportunity and sovereignty.
Despite all this, rural America remains far more diverse than popular imagination would suggest, and it is only becoming more diverse. Thus, it is critical to understand not only how property law has historically constructed these patterns of racial difference but also the role that property law now plays in actively maintaining these racialized rural landscapes.
That’s what we observe here, first by uncovering otherwise overlooked histories of racialization in particular rural land use practices and second by addressing current racial disparities in farmland ownership, as well as other ongoing inequities in rural land ownership.
(Not Archaic) History
To start, consider one example of racialized moral judgments that shaped rural land use in the twentieth century: the country’s first rural zoning ordinance. Implemented in northern Wisconsin in the 1930s, rural zoning favored a certain vision of the productive postwar family farm that excluded ethnic immigrant subsistence farmers reliant on municipal support, echoing urban zoning’s biases against subordinated racial and ethnic groups.
By the time the rural zoning ordinance was passed in the 1930s, the region known as the Cutover had already experienced dramatic changes in land uses. Nineteenth-century white settlers erased Indigenous land systems by dispossessing tribes of their land and clearing the forest. The state then successfully encouraged new immigrants to settle as farmers between 1895-1915. But the land wasn’t well-suited to agricultural use. The Great Depression compounded the economic effects of the agricultural slumps of the 1920s, and those very same settlers became problems for the counties responsible for providing their education, roads, and poverty relief.
Experts from the University of Wisconsin thought zoning could help create more economically productive settlement patterns in the region. Local government officials agreed, but their implementation of the ordinance had additional insidious results. The adopted ordinance blocked out forest areas, preventing new settlements and declaring anyone who lived within the boundaries to be non-conforming users—once again those very same immigrant settlers courted by the state. Local officials targeted non-conforming users for relocation, moving up to 300 families, including a disproportionate number of farmers from ethnic groups disfavored for their subsistence practices and retention of ethnic norms and values.
In short, from the start rural zoning was predicated as much on moral judgments as urban zoning was.
Current Rural Realities
Now, in terms of continuing effects, it turns out farmland—that purportedly outdated object of property scholars’ historic attention—remains central to current rural realities. There are more than 900 million acres of privately owned farmland in America, but the vast richness of these rural lands remains, by design, almost exclusively—98 percent—owned and controlled by people who are white. The five largest landowners in America—also all white—own more rural land than all of Black Americans combined.
Prior work has established the many ways that property law maintains these racialized land ownership dynamics. But it is also important to see the ongoing consequences. As existing farmers age, experts predict as many as half of American farm acres will change hands in the next two decades. Without a radical course-correction, current property incentives and structures will continue to direct these lands to the now-absent (and often urban) heirs of these legacy operations, pension funds, real-estate trusts, billionaires (like Bill Gates, the largest private owner of farmland in the United States), and foreign investors. In part, this is because our collective property choices and farm policies increasingly incentivize holding farmland as an asset, rather than living on farms as a resident steward.
Meanwhile, a crowd of emerging beginning farmers—and BIPOC farmers in particular—seek to build more sustainable, diversified farming operations but are locked out of secure, affordable land access by these same property dynamics. Not unlike the beginning farmers in the early twentieth-century Wisconsin Cutover, today’s aspiring farmers consistently cite lack of land access as their number one obstacle to becoming farmers, and many scholars around the globe agree that unlocking these land relations is necessary if we are to achieve a more just, sustainable, and resilient food system.
The results for remaining rural residents and rural communities are also acute: As farmland ownership and farm decision-making authority is exported outside the local community, social and ecological realities change. And property choices further grease these wheels. Consider, for example, recent fights over so-called “right to farm” laws. These laws, in general, change the rules of nuisance and prohibit rural residents and neighbors from suing many farming operations for the externalities of their farm practices, even when the farm operators now live far outside the impacted community.
And just last term, the Supreme Court held in Cedar Pointe Nursery v. Hassid that California’s longstanding law requiring certain farm owners to grant union organizers access to farmworkers on their properties constituted an unconstitutional taking. Property law, again, reshaped rural power relations. Farmworkers, nationally, are 62 percent racial minorities and 80 percent Hispanic, and as many as three-quarters are immigrants with precarious status.
This is just the beginning of a long list of examples of property constructing rural landscapes in a way that increases concerns about rural community alienation and decline, racial and social injustice, and rapidly increasing climate change.
None of these property challenges has an easy solution, and even deciphering true winners versus losers in these systems is often harder than one might expect. But rural lives and livelihoods are important, as are the combined challenges of racial, social, and climate justice across rural landscapes. Rurality is not incidental but central to these conversations, and we hope further and broader study of these land and property relations can contribute to a broader framework for understanding and engaging with these merged challenges.