Property Law as Immigration Law: The Creation of Non-Citizen Property Rights
Allison Brownell Tirres
DePaul University College of Law
March 6, 2013
19 Michigan Journal of Race & Law __ (2013, Forthcoming)
DePaul Legal Studies Research Paper
This Article explores the collusion of states and the federal government in encouraging migration and expanding notions of membership in the American polity. It is the first sustained treatment of the creation of property rights for non-citizens in American law. In the mid-nineteenth century, eleven states adopted provisions in their constitutions guaranteeing the property rights of resident aliens. Prior to this period, state courts had restricted non-citizen property rights, applying English common law doctrine. Under the common law, aliens were unable lawfully to hold or inherit property; the sovereign could force a property forfeiture at any time. Additions to state constitutions dramatically altered this scheme. Iowa, Wisconsin, California and Michigan led the way, including these rights in their state constitutions prior to the Civil War. In this article, I place these constitutional developments in the larger context of the histories of immigration, westward expansion, and property reform. I show that federal territorial law played a critical role in the expansion of non-citizen property rights at the state level. Federal law allowed for fee simple alien property ownership and alien suffrage; these rights directly influenced proponents of state property reform. I argue that both the federal government and the states utilized property law as a form of immigration regulation: not to expel migrants but rather to attract them. At the same time, these reform efforts held the seeds of restrictive policies that would develop later in the twentieth century. Becoming “American” through property ownership was not a fully inclusive process; from the outset it was limited by assumptions about origin, race, and territorial location.
Number of Pages in PDF File: 61
Keywords: property law, immigration law, legal history, citizenship, public land law, state and local government lawAccepted Paper Series
Date posted: March 7, 2013 ; Last revised: April 26, 2013
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