From Reconstruction to Deconstruction: Undermining Black Ownership, Political Independence, and Community Through Partition Sales of Tenancy in Common Property

77 Pages Posted: 29 Jan 2010 Last revised: 14 Nov 2015

Thomas W. Mitchell

Texas A&M University School of Law

Date Written: January 29, 2010

Abstract

This article considers one of the primary ways in which African Americans have lost millions of acres of land that they were able to acquire in the latter part of the nineteenth century and the beginning part of the twentieth century and the sociopolitical implications of this land loss. Specifically, this article highlights the fact that forced partition sales of tenancy in common property, referred to more commonly as heirs' property, have been a major source of black land loss within the African American community. The article argues that involuntary black land loss has had a significant negative impact upon the African American community given that the acquisition of land represented more than simply the acquisition of an important economic asset for African Americans who had been denied the opportunity for the most part to become real property owners prior to the Civil War and the period of Reconstruction. Consistent with political and property theory, after Reconstruction, many African Americans believed that landownership would enable them to participate much more robustly in the political life of the country and in civil society and that such ownership would provide African Americans with a foundation for the establishment of healthy and stable communities. In contrast to the default rules governing exit from tenancy in common ownership, the article demonstrates that the law often enables certain groups or communities to own property under various common ownership structures in a way that supports the ability of these groups and communities to maintain stable ownership of their real property over time. Given that poor and minority communities have lost a great deal of land that they had valued for both important economic and non-economic reasons, this article advocates for several reform proposals. These proposed reforms include proposed modifications to the default rules governing tenancy in common property that would enable groups such as African Americans who own much of their land under these default rules to maintain ownership of their property in a significantly more stable way than they do today.

Keywords: African American, Black, Civil War, Collective Ownership, Common Ownership, Common Property, Community, Democracy, Democratic, Eminent Domain, Estate Planning, Farmland, Farms, Farmers, Forced Sale, Heirs, Independence, Indian Law, Indians, Intestacy, Land Loss, Landholdings, Landownership

JEL Classification: K11, Q15, R21, Z13

Suggested Citation

Mitchell, Thomas W., From Reconstruction to Deconstruction: Undermining Black Ownership, Political Independence, and Community Through Partition Sales of Tenancy in Common Property (January 29, 2010). Northwestern University Law Review, Vol. 95, p. 505, 2001; Univ. of Wisconsin Legal Studies Research Paper No. 1106. Available at SSRN: https://ssrn.com/abstract=1544380

Thomas W. Mitchell (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States
(817) 212-3935 (Phone)

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