Answer the following questions thoroughly using the textbook, sources in Canvas, and/or other scholarly sources. You are limited to using one citation from the class notes per question. Properly cite your work with footnote citations. Include a Work Cited

WEBDuboistoGarvey Constitutionpdf DeclarationofIndependenceandtheConstitution PlacingPaulRobeson BlackLandOwnership

Answer the following questions thoroughly using the textbook, sources in Canvas, and/or other scholarly sources. You are limited to using one citation from the class notes per question. Properly cite your work with footnote citations. Include a Work Cited page. Based on the historical evidence post-1865, what would be the best approach to solving the race problem—separatism or integrationism? Examine the Declaration of Independence and the United States Constitution in detail. Specifically explain the ways in which these founding documents of the United States have fallen short in their principles in reference to the African American population since 1865 Choose one of the following At the height of the Cold War in the 1950s African Americans were given an implied ultimatum when, W.E.B Du Bois and Paul Robeson were banned from traveling to either disconnect from anti-colonial movements and focus on civil rights at home, or remain pan-Africanists. Which path was the correct path to take and why? Explain the many ways that the enslavement of African Americans continued post-1865. 

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to Africa 

 

By W. E. Burghardt DuBois  

IT was upon the tenth of August, in High Harlem of Manhattan Island, where a hundred thousand negroes live. There was a long, low, unfinished church basement, 
roofed over. A little, fat black man, ugly, but with intelligent eyes and big head, was seated on a plant platform beside a “throne,” dressed in a military uniform of the 
gayest mid‐Victorian type, heavy with gold lace, epaulets, plume, and sword. Beside him were “potentates,” and before him knelt a succession of several colored 
gentlemen. These in the presence of a thousand or more applauding dark spectators were duly “knighted” and raised to the “peerage” as knight‐commanders and 
dukes of Uganda and the Niger. Among the lucky recipients of titles was the former private secretary of Booker T. Washington!  

What did it all mean! A casual observer might have mistaken it for the dress‐rehearsal of a new comic opera, and looked instinctively for Bert Williams and Miller and 
Lyles. But it was not; it was a serious occasion, done on the whole soberly and solemnly. Another might have found it simply silly. All ceremonies are more or less silly. 
Some negroes would have said that this ceremony had something symbolic, like the coronation, because it was part of a great “back‐to‐Africa” movement and 
represented self‐determination for the negro race and a relieving of America of her most difficult race problem by a voluntary operation.  

On the other hand, many American negroes and some others were scandalized by something which they could but regard as simply child’s play. It seemed to them 
sinister, this enthroning of a demagogue, a blatant boaster, who with monkey‐shines was deluding the people and taking their hard‐earned dollars; and in High 
Harlem there rose an insistent cry, “Garvey must go!”  

Knowledge of all this seeped through to the greater world because it was sensational and made good copy for the reporters. The great world now and then becomes 
aware of certain currents within itself, ‐‐ tragedies and comedies, movements of mind, gossip, personalities, ‐‐ in some inner whirlpool of which it had been scarcely 
aware before. Usually these things are of little interest or influence for the main current of events; and yet is not this same main current made up of the impinging of 
these smaller swirlings of little groups? No matter how segregated and silent the smaller whirlpool is, if it is American, at some time it strikes and influences the 
American world. What, then, is the latest news from this area of negrodom spiritually so foreign to most of white America?  

2  

The sensation that Garvey created was due not so much to his program as  

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to his processes of reasoning, his proposed methods of work, and the width of the stage upon which he essayed to play his part.  

His reasoning was at first new and inexplicable to Americans because he brought to the United States a new negro problem. We think of our problem here as the 
negro problem, but we know more or less clearly that the problem of the American negro is very different from the problem of the South African negro or the 
problem of the Nigerian negro or the problem of the South American negro. We have not hitherto been so clear as to the way in which the problem of the negro in 
the United States differs from the problem of the negro in the West Indies. For a long time we have been told, and we have believed, that the race problem in the 

West Indies, and particularly in Jamaica, has virtually been settled.  

Let us note the facts. Marcus Garvey was born on the northern coast of Jamaica in 1887. He was a poor black boy, his father dying later in the almshouse. He received 
a little training in the Church of England grammarschool, and then learned the trade of printing, working for years as foreman of a printing plant. Then he went to 
Europe, and wandered about England and France, working and observing until he finally returned to Jamaica. He found himself facing a stone wall. He was poor, he 
was black, he had no chance for a university education, he had no likely chance for preferment in any line, but could work as an artisan at small wage for the rest of 
his life.  

Moreover, he knew that the socalled settlement of the race problem in Jamaica was not complete; that as a matter of fact throughout the West Indies the 
development has been like this: most white masters had cohabited with negro women, and some had actually married them; their children were free by law in most 
cases, but were not the recognized equals of the whites either socially, politically, or economically. Because of the numbers of the free negroes as compared with the 
masters, and because of their continued growth in wealth and intelligence, they began to get political power, and they finally either expelled the whites by uniting 
with the blacks, as in Haiti, or forced the whites to receive the mulattoes, or at least the lighter‐hued ones, as equals.  

This is the West Indian solution of the negro problem. The mulattoes are virtually regarded and treated as whites, with the assumption that they will, by continued 
white intermarriage, bleach out their color as soon as possible. There survive, therefore, few white colonials, save new‐comers, who are not of negro descent in some 
more or less remote ancestor. Mulattoes intermarry, then, largely with the whites, and the so‐called disappearance of the color‐line is the disappearance of the line 
between the whites and mulattoes, and not between the whites and the blacks or even between the mulattoes and the blacks.  

Thus the privileged and exploiting group in the West Indies is composed of whites and mulattoes, while the poorly paid and ignorant proletariats are the blacks, 
forming a peasantry vastly in the majority, but socially, politically, and economically helpless and nearly voiceless. This peasantry, moreover, has been systematically 
deprived of its natural leadership because the black boy who showed initiative or who accidentally gained wealth and education soon gained the recognition  

‐‐ 541 ‐‐  

of the white‐mulatto group and might be incorporated with them, particularly if he married one of them. Thus his interests and efforts were identified with the 
mulatto‐white group.  

There must naturally arise a more or less insistent demand among the black peasants for self‐expression and for an exposition of their grievances by one of their own 
group. Such leaders have indeed arisen from time to time, and Marcus Garvey was one. His notoriety comes not from his ability and accomplishment, but from the 
Great War. Not that he was without ability. He was a facile speaker, able to express himself in grammatical and forceful English; he had spent enough time in world 
cities like London to get an idea of world movements, and he honestly believed that the backwardness of the blacks was simply the result of oppression and lack of 
opportunity.  

On the other hand, Garvey had no thorough education and a very hazy idea of the technic of civilization. He fell easily into the common error of assuming that 
because oppression has retarded a group, the mere removal of the injustice will at a bound restore the group to full power. Then, too, he personally had his 
drawbacks: he was inordinately vain and egotistic, jealous of his power, impatient of details, a poor judge of human nature, and he had the common weakness of 

untrained devotees that no dependence could be put upon his statements of fact. Not that he was a conscious liar, but dream, fact, fancy, wish, were all so blurred in 
his thinking that neither he himself nor his hearers could clearly or easily extricate them.  

Then came the new economic demand for negro peasant labor on the Panama Canal, and finally the Great War. Black West‐Indians began to make something like 
decent wages, they began to travel, and they began to talk and think. Garvey talked and thought with them. In conjunction with white and colored sympathizers he 
planned a small Jamaican Tuskegee. This failed, and he conceived the idea of a purely negro organization to establish independent negro states and link them with 
commerce and industry. His “Universal Negro Improvement Association,” launched August 1, 1914, in Jamaica, was soon in financial difficulties. The war was 
beginning to change the world, and as white American laborers began to be drawn into war work there was an opening in many lines not only for Southern American 
negroes as laborers and mechanics, but also for West‐Indians as servants and laborers. They began to migrate in larger numbers. With this new migration came 
Marcus Garvey.  

He established a little group of his own Jamaica countrymen in Harlem and launched his program. He took no account of the American negro problem; he knew 
nothing about it. What he was trying to do was to settle the Jamaican problem in the United States. On the other hand, American negroes knew nothing about the 
Jamaican problem, and they were excited and indignant at being brought face to face with a man who was full of wild talk about Africa and the West Indies and 
steamship lines and “race pride,” but who said nothing and apparently knew nothing about the right to vote, the horrors of lynching and mob law, and the problem of 
racial equality.  

Moreover, they were especially incensed at the new West‐Indian conception of the color‐line. Color‐lines  

‐‐ 542 ‐‐  

had naturally often appeared in colored America, but the development had early taken a far different direction from that in the West Indies. Migration by whites had 
numerically overwhelmed both masters and mulattoes, and compelled most American masters to sell their own children into slavery. Freedom, therefore, rather 
than color, became the first line of social distinction in the American negro world despite the near‐white aristocracies of cities like Charleston and New Orleans, and 
despite the fact that the proportion of mulattoes who were free and who gained some wealth and education was greater than that of blacks because of the favor of 
their white parents.  

After emancipation, color caste tended to arise again, but the darker group was quickly welded into one despite color by caste legislation, which applied to a white 
man with one negro great‐grandfather as well as to a full‐blooded Bantu. There were still obvious advantages to the negro American of lighter hue in passing for 
white or posing as Spanish or Portuguese, but the pressing demand for ability and efficiency and honesty within this fighting, advancing group continually drove the 
color‐line back before reason and necessity, and it came to be generally regarded as the poorest possible taste for a negro even to refer to differences of color. 
Colored folk as white as the whitest came to describe themselves as negroes. Imagine, then, the surprise and disgust of these Americans when Garvey launched his 
Jamaican color scheme.  

He did this, of course, ignorantly and with no idea of his mistake and no wit to read the signs. He meant well. He saw what seemed to him the same color‐lines which 
he hated in Jamaica, and he sought here as there to oppose white supremacy and the white ideal by a crude and equally brutal black supremacy and black ideal. His 
mistake did not lie in the utter impossibility of this program, ‐‐ greater upheavals in ideal have shaken the world before, ‐‐ but rather in its spiritual bankruptcy and 

futility; for what shall this poor world gain if it exchange one race supremacy for another?  

Garvey soon sensed that somewhere he was making a mistake, and he began to protest that he was not excluding mulattoes from his organization. Indeed, he has 
men of all colors and bloods in his organization, but his propaganda still remains “all‐black,” because this brings cash from the Jamaica peasants. Once he was actually 
haled to court and made to apologize for calling a disgruntled former colleague “white”! His tirades and twistings have landed him in strange contradictions. Thus 
with one voice he denounced Booker T. Washington and Frederick Douglass as bastards, and with the next named his boarding‐house and first steamship after these 
same men!  

3  

Aside from his color‐lines, Garvey soon developed in America a definite and in many respects original and alluring program. He proposed to establish the “Black Star 
Line” of steamships, under negro ownership and with negro money, to trade between the United States, the West Indies, and Africa. He proposed to establish a 
factories corporation which was going to build factories and manufacture goods both for local consumption of negroes and for export. He  

‐‐ 543 ‐‐  

was going eventually to take possession of Africa and establish independent negro governments there.  

The statement of this program, with tremendous head‐lines, wild eloquence, and great insistence and repetition, caught the attention of all America, white and black. 
When Mr. Garvey brought his cohorts to Madison Square Garden, clad in fancy costumes and with new songs and ceremonies, and when, ducking his dark head at 
the audience, he yelled, “We are going to Africa to tell England, France, and Belgium to get out of there,” America sat up, listened, laughed, and said here at least is 
something new.  

Negroes, especially West‐Indians, flocked to his movement and poured money into it. About three years ago he had some 80,000 members in his organization, and 
perhaps 20,000 or 30,000 were paying regularly thirty‐five cents a month into his chest. These numbers grew in his imagination until he was claiming 4,500,000 
followers, and speaking for “Four hundred million negroes”! He did not, however, stop with dreams and promises. If he had been simply a calculating scoundrel, he 
would carefully have skirted the narrow line between promise and performance and avoided as long as possible the inevitable catastrophe. But he believed in his 
program and he had a childish ignorance of the stern facts of the world into whose face he was flying. Being an islander, and born in a little realm where half a day’s 
journey takes one from ocean to ocean, the world always seemed small to him, and it was perhaps excusable for this black peasant of Jamaica to think of Africa as a 
similar, but slightly larger, island which could easily be taken possession of.  

His first practical step toward this was to establish the Black Star Line, and here he literally left his critics and opponents breathless by suddenly announcing in 1919 
that the Frederick Douglass, a steamship, had been bought by his line, was on exhibition at a wharf in New York, and was about to sail to the West Indies with freight 
and passengers. The announcement was electrical even for those who did not believe in Garvey. With a splendid, audacious faith, this poor black leader, with his 
storming tongue, compelled a word of admiration from all. But the seeds of failure were in his very first efforts. This first boat, the Yarmouth (never renamed the 
Frederick Douglass probably because of financial difficulties), was built in the year Garvey was born, and was an old sea‐scarred hulk. He was cheated in buying it, and 
paid $140,000 for it ‐‐ at least twice as much as the boat was worth. She made three trips to the West Indies in three years, and then was docked for repairs, attached 

for debt, and finally, in December, 1921, sold at auction for $1625!  

The second boat that Garvey bought was a steam yacht originally built for a Standard Oil magnate. It, too, was old and of doubtful value, but Garvey paid $60,000 for 
it, and sent it down to do a small carrying trade between the West Indies Islands. The boat broke down, and it cost $70,000 or $80,000 more to repair it than Garvey 
paid for it. Finally it was wrecked or seized in Cuba, and the crew was transported to the United States at government expense.  

The third boat was a Hudson River ferry‐boat that Garvey bought for $35,000. With this he carried excursionists up and down the Hudson during  

‐‐ 544 ‐‐  

one summer and used it as a vivid advertisement to collect more money. The boat, however, ran only that summer, and then had to be abandoned as beyond repair.  

Finally, Garvey tried to buy of the United States Shipping Board the steamship Orion for $250,000. This boat was to be renamed the Phyllis Wheatley, and its sailings 
were advertised in Garvey’s weekly paper for several months, and some passages were sold; but the boat never was delivered because sufficient payments were not 
made.  

Thus the Black Star Line arose and disappeared, and with it went some $800,000 of the savings of West‐Indians and a few American negroes. With this enterprise the 
initial step and greatest test of Mr. Garvey’s movement failed utterly. His factories corporation never really got started. In its place he has established a number of 
local grocery stores in Harlem and one or two shops, including a laundry and a printing‐press, which may or may not survive.  

His African program was made impossible by his own pig‐headedness. He proposed to make a start in Liberia with industrial enterprises. From this center he would 
penetrate all Africa and gradually subdue it. Instead of keeping this plan hidden and working cautiously and intelligently toward it, he yelled and shouted and 
telegraphed it all over the world. Without consulting the Liberians, he apparently was ready to assume partial charge of their state. He appointed officials with high‐
sounding titles, and announced that the headquarters of his organization was to be removed to Liberia in January, 1922. Such announcements, together with his talk 
about conquest and “driving Europe out,” aroused European governments to inquire about Garvey and his backing. Diplomatic representations were made to Liberia, 
asking it how far it intended to coöperate in this program. Liberia was naturally compelled to repudiate Garveyism, root and branch. The officials told Garvey that he 
or any one else was welcome to migrate to Liberia and develop industry within legal lines, but that they could recognize only one authority in Liberia and that was the 
authority of the Liberian Government, and that Liberia could not be the seat of any intrigue against her peaceful neighbors. They made it impossible for Garvey to 
establish any headquarters in Africa unless it was done by the consent of the very nations whom he was threatening to drive out of Africa!  

This ended his African program and reduced him to the curious alternative of sending a delegate to the third assembly of the League of Nations to ask them to hand 
over as a gift to his organization a German colony in order that he might begin his work.  

4  

Thus the bubble of Garveyism burst; but its significance, its meaning, remains. After all, one has to get within Garvey to know him, to understand him. He is not 
simply a liar and blatant fool. Something of both, to be sure, is there; but that is not all. He is the type of dark man whom the white world is making daily, molding, 
marring, tossing to the air. All his life whites have laughed and sneered at him and torn his soul. All his life he has hated the half‐whites who, rejecting their darker 

blood, have gloried in their pale shame. He has stormed  

‐‐ 545 ‐‐  

and fought within, and then at last it all burst out. He had to guard himself before the powers and be careful of law and libel and hunger, but where he could be free, 
he snarled and cursed at the whites, insulted the mulattoes with unpardonable epithets, and bitterly reviled the blacks for their cowardice.  

Suppose, now, for a moment that Garvey had been a man of first‐rate ability, canny, shrewd, patient, dogged? He might have brought a world war of races a 
generation nearer, he might have deprived civilization of that precious generation of respite where we have yet time to sit and consider if difference of human color 
must necessarily mean blows and blood. As a matter of fact, Garvey did not know how to approach his self‐appointed task; he had not the genius to wait and 
laboriously learn, yet he pompously seized the pose; he kept extremely busy, rushed hither and thither. He collected and squandered thousands, almost millions. He 
would, he must, succeed. He appeared in the uniforms of his dream triumphs, in 1921 with an academic cap and gown, weird in colors; in 1922 with cocked hat, gold 
lace, and sword ‐‐ the commander‐in‐chief of the African Legion! He did not quite dare call himself King Marcus I, but he sunned himself awhile in the address of 
“your Majesty.” He held court and made knights, lords, and dukes; and yet, as he feverishly worked, he knew he had failed; he knew he had missed the key to some 
dark arcanum. He grew suspicious, morose, complaining, furious at the “fools” and “scoundrels” who were “plotting” his ruin and the overthrow of his cause. With all 
the provincial backwoods love of courts and judges, he rushed into and reveled in litigation, figuring in at least fifty suits, suing for libel, breach of contract, slander, 
divorce, assault ‐‐ everything and anything; while in turn his personal enemies sued him, rioted against him, and one shot him, so that to‐day he dares not stir 
without a sturdy body‐guard.  

Beaten and overwhelmed with loss and disappointment, he will not yet surrender, and seeks by surrounding himself with new officials and by announcing new 
enterprises ‐‐ a daily paper, a new line of steamships, and the like ‐‐ to re‐form his lines. So he sits to‐day. He is a world figure in minute microcosm. On a larger field, 
with fairer opportunity, he might have been great, certainly notorious. He is to‐day a little puppet, serio‐comic, funny, yet swept with a great veil of tragedy; meaning 
in himself little more than a passing agitation, moving darkly and uncertainly from a little island of the sea to the panting, half‐submerged millions of the first world 
state. And yet he means something to the world. He is type of a mighty coming thing. He voices a vague, formless, but growing, integrating, human mind which some 
day will arrest the world.  

Just what it has cost the negro race in money to support Garvey it is hard to say, but certainly not less than a million dollars. And yet with all this there are certain 
peculiar satisfactions. Here has come a test to the American negro which he has not had before. A demagogue has appeared, not the worst kind of demagogue, but, 
on the contrary, a man who had much which was attractive and understandable in his personality and his program; nevertheless, a man whose program anybody  

‐‐ 546 ‐‐  

with common sense knew was impossible. With all the arts of the demagogue, Garvey appealed to crowds of people with persuasive eloquence, with the ringing of 
all possible charges of face loyalty and the bastardy of the mulatto and the persons ashamed of their race, and the implacable enmity of the whites. It was the sort of 
appeal that easily throws ignorant and inexperienced people into orgies of response and generosity. Yet with all this, coming at a critical time, when the negro was 
hurt at his war experience and his post‐war treatment, when lynching was still a national institution and mob‐law a ready resort; when the rank and file of ignorant 
West‐Indian negroes were going wild over Garvey, the American negroes sat cool and calm, and were neither betrayed into wild and unjust attacks upon Garvey nor 

into uncritical acceptance.  

His following has ebbed and flowed. Its main and moving nucleus has been a knot of black Jamaica peasants resident in America as laborers and servants, mostly 
unlettered, poor, and ignorant, who worship Garvey as their ideal incarnate. Garvey is bold. Garvey lashes the white folk. Garvey downs the mulattoes. Garvey 
forever! no matter what he does. Does he steal? Better let him steal than let white folk. Does he squander? It’s our money; let him waste. Does he fail? Others have 
failed.  

It is this blind and dangerous nucleus that explains Garvey’s success in holding his power. Around these are a mass of West‐Indians, resident in the islands and in the 
United States, who have honestly supported Garvey in the hope that this new leader would direct them out of the West‐Indian impasse of low wages, little 
educational opportunity, no industrial openings, and caste. Especially they seized upon the Black Star Line, as isolated islanders would, as a plan of real practical 
hope. This group reached sixty or seventy thousand in number during Garvey’s heyday, but with the failure of his enterprises it is rapidly falling away.  

With these groups have always been a number of American negroes: the ignorant, drawn by eloquence and sound; the grafters who saw a chance of sharing spoils; 
and with these some honest, thinking folk who paused and inquired, “Who is Garvey, and what is his program?” This American following, though always small, grew 
here and there, and in centers like Norfolk, Chicago, and Pittsburgh reached for a time into the thousands. But, on the whole, American negroes stood the test well.  

Garvey’s proposal of such a new, autonomous, and hostile black world in league with the brown and yellow peoples brought from American negroes a simple 
Missouri “Show us.” They asked: “What are you doing, and how? What are your concrete and practical proposals?” They did not follow the more impatient counsels 
of “Garvey must go.” They did not slander or silence or ignore him. The two hundred negro weeklies treated him fairly, and audiences listened to his words and read 
his literature. And right here lay his undoing, for the more his flamboyant promises were carefully compared with his results, the sooner the utter futility of his 
program was revealed.  

Here is a world that for a thousand years, from the First Crusade to the Great War, had been breaking down  

‐‐ 547 ‐‐  

the barriers between nations and races in order to build a world‐wide economic unity and cultural solidarity. The process has involved slavery, peonage, rape, theft, 
and extermination, but it is slowly uniting humanity. It is now proposed to turn back and cut out of this world its black eighth or its colored two thirds. Not only is this 
virtually impossible, but its attempt to‐day would certainly involve the white and colored worlds in a death‐struggle whose issue none can surely foretell. The power 
of the yellow, black, and brown worlds to‐day is the economic dependence of the white world on them, and the power of the white world is its economic technic and 
organization. The super‐diplomacy of race politics to‐morrow is to transmute this interdependence into cultural sympathy, spiritual tolerance, and human freedom. 
Not in segregation, but in closer, larger unity lies interracial peace.  

Not with entire clearness and yet with a certain fundamental and tremendously significant clarity the American negro realizes this, and as yet no demagoguery or 
pipe dreams have been able to divorce him from the facts. The present generation of negroes has survived two grave temptations, the greater one, fathered by 
Booker T. Washington, which said, “Let politics alone, keep in your place, work hard, and do not complain,” and which meant perpetual color caste for colored folk by 
their own coöperation and consent, and the consequent inevitable debauchery of the white world; and the lesser, fathered by Marcus Garvey, which said: “Give up! 

Surrender! The struggle is useless; back to Africa and fight the white world.”  

It is no ordinary tribute to American negro poise and common sense, and ability to choose and reject leadership, that neither of these programs has been able to hold 
them. One of the most singular proofs of this is that the latest support of Garveyism is from the notorious Ku Klux Klan. When Garvey saw his Black Star Line 
disappear, his West‐Indian membership fall off, and his American listeners grow increasingly critical, he flew South to consult the Grand Cyclops of the Invisible 
Empire. Whether the initiative came from him or from the Klan is not known, but probably the Klan invited him. They were indeed birds of a feather, believing in 
titles, flummery, and mumbo‐jumbo, and handling much gullible money.  

Garvey’s motives were clear. The triumph of the Klan would drive negroes to his program in despair, while the Klan’s sympathy would enable him to enter the South, 
where he has not dared to work and exploit the ignorant black millions. The Klan’s object was to encourage anything that would induce negroes to believe that their 
fight for freedom in America was vain. Garvey’s secretary said that the Klan would probably finance the Black Star Line, and Garvey invited the Grand Cyclops to 
speak at his convention. But Garvey reckoned without his host. A storm of criticism rose among negroes and kept Garvey explaining, contradicting, and repudiating 
the unholy alliance, and finally drove it under cover, although Garvey openly advertised the Klan’s program as showing the impossibility of the negro’s remaining in 
America, and the Klan sent out circulars defending Garvey and declaring that the opposition to him was from the Catholic Church!  

‐‐ 548 ‐‐  

Again it is High Harlem, with its music and laughter, its conversations shouted aloft, its teeming, bantering, pushing crowds, its brown and black and cream‐like faces, 
its crisp and curling hair. As the setting sun sends its last crimson light from the heights that hold the Hudson from the Harlem, it floods 138th Street and lights three 
blocks. One is a block of homes built by the Equitable Life Assurance Society, but now sold to negroes, some crowded, some carelessly kept, but most of them 
beautiful, even luxurious, perhaps as handsome a block as middle‐class America, white or black, affords. Next the sun softens the newness of a brick block on Seventh 
Avenue, stretching low and beautiful from the Y. W. C. A., with a moving‐picture house of the better class and a colored five‐and‐ten cent store built and owned by 
black folk. Down beyond, on 138th Street, the sun burns the raising spire of Abyssinian Church, a vast and striking structure built by negroes who for a hundred years 
have supported one organization and are now moving to their newest and luxurious home of soft carpets, stained windows, and swelling organ. Finally, the dying 
rays hit a low, rambling basement of brick and rough stone. It was designed as the beginning of a church long ago, but abandoned. Marcus Garvey roofed it over, and 
out of this squat and dirty old “Liberty Hall” he screams his propaganda. As compared with the homes, the business, the church, Garvey’s basement represents 
nothing in accomplishment and only waste in attempt.  

Yet it has a right to be. It represents something spiritual, however poor and futile to‐day. Deep in the black man’s heart he knows that he needs more than homes 
and stores and churches. He needs manhood ‐‐ liberty, brotherhood, equality. The call of the spirit urges him restlessly to and fro with all men of the despised and 
forgotten, seeking, seeking. Misled they often are, and again and again they play in microcosm the same tragic drama that other worlds and other groups have 
played. Here is Garvey yelling to life, from the black side, a race consciousness which leaps to meet Madison Grant and Lothrop Stoddard and other worshipers of the 
great white race. It is symptomatic and portentous. If with a greater and more gifted and efficient Garvey it sometime blazes to real flame, it means world war and 
eternal hate and blood. It means the setting of the world clock back a thousand years. And yet the world’s Garveys are not solely to blame, but rather every 
worshiper of race superiority and human inequality. On the other hand, back of all this lurks the quieter, more successful, more insistent, and hopeful fact. Races are 
living together. They are buying and selling, marrying and rearing children, laughing and crying. They are fighting mobs and lynchers and those that enslave and 

despise, and they have not yet failed in that fight. Their faith in their ultimate and complete triumph are these homes, this business block, this church, duplicated a 
hundred thousand times in a nation of twelve million. Here, then, are the two future paths, outlined with a certain sullen dimness in the world’s blood‐crimson 
twilight, and yet to be descried easily by those with the seeing hearts. Which path will America choose?  

 
 

Du Bois, William Edward Burghardt, 1868‐1963, Back to Africa In Century Magazine 150 no. 4:539‐548 (February 1923). (New York, NY: Century Co., 1923). pp. 
539‐548 [Bibliographic Details] [02‐1923] [View Full Text]  

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TheConstitution of the United States

Preamble

We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America.

Article. I. – The Legislative Branch

Section 1 – The Legislature

All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.

Section 2 – The House

The House of Representatives shall be composed of Members chosen every second Year
by the People of the several States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch of the State
Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five
Years, and been seven Years a Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State in which he shall be chosen.

(Representatives and direct Taxes shall be apportioned among the several States which
may be included within this Union, according to their respective Numbers, which shall be
determined by adding to the whole Number of free Persons, including those bound to
Service for a Term of Years, and excluding Indians not taxed, three fifths of all other
Persons.) (The previous sentence in parentheses was modified by the 14th
Amendment, section 2.) The actual Enumeration shall be made within three Years after
the first Meeting of the Congress of the United States, and within every subsequent Term
of ten Years, in such Manner as they shall by Law direct. The Number of Representatives
shall not exceed one for every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State of New Hampshire
shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence
Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight,
Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and
Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority
thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall
have the sole Power of Impeachment.

Section 3 – The Senate

The Senate of the United States shall be composed of two Senators from each State,
(chosen by the Legislature thereof,) (The preceding words in parentheses superseded
by 17th Amendment, section 1.) for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall
be divided as equally as may be into three Classes. The Seats of the Senators of the first
Class shall be vacated at the Expiration of the second Year, of the second Class at the
Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so
that one third may be chosen every second Year; (and if Vacancies happen by
Resignation, or otherwise, during the Recess of the Legislature of any State, the
Executive thereof may make temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies.) (The preceding words in parentheses
were superseded by the 17th Amendment, section 2.)

No person shall be a Senator who shall not have attained to the Age of thirty Years, and
been nine Years a Citizen of the United States, and who shall not, when elected, be an
Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no
Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the
absence of the Vice President, or when he shall exercise the Office of President of the
United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that
Purpose, they shall be on Oath or Affirmation. When the President of the United States is
tried, the Chief Justice shall preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office,
and disqualification to hold and enjoy any Office of honor, Trust or Profit under the
United States: but the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.

Section 4 – Elections, Meetings

The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall (be on
the first Monday in December,) (The preceding words in parentheses were superseded
by the 20th Amendment, section 2.) unless they shall by Law appoint a different Day.

Section 5 – Membership, Rules, Journals, Adjournment

Each House shall be the Judge of the Elections, Returns and Qualifications of its own
Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller
number may adjourn from day to day, and may be authorized to compel the Attendance
of absent Members, in such Manner, and under such Penalties as each House may
provide.

Each House may determine the Rules of its Proceedings, punish its Members for
disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the
same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and
Nays of the Members of either House on any question shall, at the Desire of one fifth of
those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other,
adjourn for more than three days, nor to any other Place than that in which the two
Houses shall be sitting.

Section 6 – Compensation

(The Senators and Representatives shall receive a Compensation for their Services, to be
ascertained by Law, and paid out of the Treasury of the United States.) (The preceding
words in parentheses were modified by the 27th Amendment.) They shall in all
Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during
their Attendance at the Session of their respective Houses, and in going to and returning
from the same; and for any Speech or Debate in either House, they shall not be
questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United States which shall have
been created, or the Emoluments whereof shall have been increased during such time;
and no Person holding any Office under the United States, shall be a Member of either
House during his Continuance in Office.

Section 7 – Revenue Bills, Legislative Process, Presidential Veto

All bills for raising Revenue shall originate in the House of Representatives; but the
Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall,
before it become a Law, be presented to the President of the United States; If he approve
he shall sign it, but if not he shall return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections at large on their Journal, and
proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree
to pass the Bill, it shall be sent, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds of that House, it
shall become a Law. But in all such Cases the Votes of both Houses shall be determined
by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be
entered on the Journal of each House respectively. If any Bill shall not be returned by the
President within ten Days (Sundays excepted) after it shall have been presented to him,
the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by
their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of Adjournment) shall be
presented to the President of the United States; and before the Same shall take Effect,
shall be approved by him, or being disapproved by him, shall be repassed by two thirds of
the Senate and House of Representatives, according to the Rules and Limitations
prescribed in the Case of a Bill.

Section 8 – Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of
Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the
United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses
against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a
longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such
Part of them as may be employed in the Service of the United States, reserving to the
States respectively, the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not
exceeding ten Miles square) as may, by Cession of particular States, and the acceptance
of Congress, become the Seat of the Government of the United States, and to exercise
like Authority over all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof.

Section 9 – Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall
think proper to admit, shall not be prohibited by the Congress prior to the Year one
thousand eight hundred and eight, but a tax or duty may be imposed on such Importation,
not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or
Enumeration herein before directed to be taken.) (Section in parentheses clarified by
the 16th Amendment.)

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of
one State over those of another: nor shall Vessels bound to, or from, one State, be obliged
to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law; and a regular Statement and Account of the Receipts and Expenditures of
all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any
Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of
any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or
foreign State.

Section 10 – Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque
and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin
a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for executing it’s inspection
Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or
Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall
be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops,
or Ships of War in time of Peace, enter into any Agreement or Compact with another
State, or with a foreign Power, or engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.

Article. II. – The Executive Branch

Section 1 – The President

The executive Power shall be vested in a President of the United States of America. He
shall hold his Office during the Term of four Years, and, together with the Vice-President
chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number
of Electors, equal to the whole Number of Senators and Representatives to which the
State may be entitled in the Congress: but no Senator or Representative, or Person
holding an Office of Trust or Profit under the United States, shall be appointed an
Elector.

(The Electors shall meet in their respective States, and vote by Ballot for two persons, of
whom one at least shall not lie an Inhabitant of the same State with themselves. And they
shall make a List of all the Persons voted for, and of the Number of Votes for each; which
List they shall sign and certify, and transmit sealed to the Seat of the Government of the
United States, directed to the President of the Senate. The President of the Senate shall,
in the Presence of the Senate and House of Representatives, open all the Certificates, and
the Votes shall then be counted. The Person having the greatest Number of Votes shall be
the President, if such Number be a Majority of the whole Number of Electors appointed;
and if there be more than one who have such Majority, and have an equal Number of
Votes, then the House of Representatives shall immediately chuse by Ballot one of them
for President; and if no Person have a Majority, then from the five highest on the List the
said House shall in like Manner chuse the President. But in chusing the President, the
Votes shall be taken by States, the Representation from each State having one Vote; a
quorum for this Purpose shall consist of a Member or Members from two-thirds of the
States, and a Majority of all the States shall be necessary to a Choice. In every Case,
after the Choice of the President, the Person having the greatest Number of Votes of the
Electors shall be the Vice President. But if there should remain two or more who have
equal Votes, the Senate shall chuse from them by Ballot the Vice-President.) (This clause
in parentheses was superseded by the 12th Amendment.)

The Congress may determine the Time of chusing the Electors, and the Day on which
they shall give their Votes; which Day shall be the same throughout the United States.

No person except a natural born Citizen, or a Citizen of the United States, at the time of
the Adoption of this Constitution, shall be eligible to the Office of President; neither shall
any Person be eligible to that Office who shall not have attained to the Age of thirty-five
Years, and been fourteen Years a Resident within the United States.

(In Case of the Removal of the President from Office, or of his Death, Resignation, or
Inability to discharge the Powers and Duties of the said Office, the same shall devolve on
the Vice President, and the Congress may by Law provide for the Case of Removal,
Death, Resignation or Inability, both of the President and Vice President, declaring what
Officer shall then act as President, and such Officer shall act accordingly, until the
Disability be removed, or a President shall be elected.) (This clause in parentheses has
been modified by the 20th and 25th Amendments.)

The President shall, at stated Times, receive for his Services, a Compensation, which
shall neither be increased nor diminished during the Period for which he shall have been
elected, and he shall not receive within that Period any other Emolument from the United
States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or
Affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of
the United States, and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States.”

Section 2 – Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the actual Service of the United
States; he may require the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any subject relating to the Duties of their respective
Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur; and he shall nominate, and
by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for, and which
shall be established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the
Recess of the Senate, by granting Commissions which shall expire at the End of their
next Session.

Section 3 – State of the Union, Convening Congress

He shall from time to time give to the Congress Information of the State of the Union,
and recommend to their Consideration such Measures as he shall judge necessary and
expedient; he may, on extraordinary Occasions, convene both Houses, or either of them,
and in Case of Disagreement between them, with Respect to the Time of Adjournment,
he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors
and other public Ministers; he shall take Care that the Laws be faithfully executed, and
shall Commission all the Officers of the United States.

Section 4 – Disqualification

The President, Vice President and all civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.

Article III. – The Judicial Branch

Section 1 – Judicial powers

The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish. The
Judges, both of the supreme and inferior Courts, shall hold their Offices during good
Behavior, and shall, at stated Times, receive for their Services a Compensation which
shall not be diminished during their Continuance in Office.

Section 2 – Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made,
under their Authority; to all Cases affecting Ambassadors, other public Ministers and
Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which
the United States shall be a Party; to Controversies between two or more States; between
a State and Citizens of another State; between Citizens of different States; between
Citizens of the same State claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in
parentheses is modified by the 11th Amendment.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the
other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations as the Congress
shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial
shall be held in the State where the said Crimes shall have been committed; but when not
committed within any State, the Trial shall be at such Place or Places as the Congress
may by Law have directed.

Section 3 – Treason

Treason against the United States, shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of
Treason unless on the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of
Treason shall work Corruption of Blood, or Forfeiture except during the Life of the
Person attainted.

Article. IV. – The States

Section 1 – Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and the Effect
thereof.

Section 2 – State citizens, Extradition

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from
Justice, and be found in another State, shall on demand of the executive Authority of the
State from which he fled, be delivered up, to be removed to the State having Jurisdiction
of the Crime.

(No Person held to Service or Labour in one State, under the Laws thereof, escaping into
another, shall, in Consequence of any Law or Regulation therein, be discharged from
such Service or Labour, But shall be delivered up on Claim of the Party to whom such
Service or Labour may be due.) (This clause in parentheses is superseded by the 13th
Amendment.)

Section 3 – New States

New States may be admitted by the Congress into this Union; but no new States shall be
formed or erected within the Jurisdiction of any other State; nor any State be formed by
the Junction of two or more States, or parts of States, without the Consent of the
Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States; and nothing in
this Constitution shall be so construed as to Prejudice any Claims of the United States, or
of any particular State.

Section 4 – Republican government

The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be convened) against
domestic Violence.

Article. V. – Amendment

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the Application of the Legislatures of two thirds
of the several States, shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified
by the Legislatures of three fourths of the several States, or by Conventions in three
fourths thereof, as the one or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses
in the Ninth Section of the first Article; and that no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate.

Article. VI. – Debts, Supremacy, Oaths

All Debts contracted and Engagements entered into, before the Adoption of this
Constitution, shall be as valid against the United States under this Constitution, as under
the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several
State Legislatures, and all executive and judicial Officers, both of the United States and
of the several States, shall be bound by Oath or Affirmation, to support this Constitution;
but no religious Test shall ever be required as a Qualification to any Office or public
Trust under the United States.

Article. VII. – Ratification

The Ratification of the Conventions of nine States, shall be sufficient for the
Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth
Day of September in the Year of our Lord one thousand seven hundred and Eighty seven
and of the Independence of the United States of America the Twelfth. In Witness whereof
We have hereunto subscribed our Names.

Go Washington – President and deputy from Virginia

New Hampshire – John Langdon, Nicholas Gilman

Massachusetts – Nathaniel Gorham, Rufus King

Connecticut – Wm Saml Johnson, Roger Sherman

New York – Alexander Hamilton

New Jersey – Wil Livingston, David Brearley, Wm Paterson, Jona. Dayton

Pensylvania – B Franklin, Thomas Mifflin, Robt Morris, Geo. Clymer, Thos FitzSimons,
Jared Ingersoll, James Wilson, Gouv Morris

Delaware – Geo. Read, Gunning Bedford jun, John Dickinson, Richard Bassett, Jaco.
Broom

Maryland – James McHenry, Dan of St Tho Jenifer, Danl Carroll

Virginia – John Blair, James Madison Jr.

North Carolina – Wm Blount, Richd Dobbs Spaight, Hu Williamson

South Carolina – J. Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce
Butler

Georgia – William Few, Abr Baldwin

Attest: William Jackson, Secretary

The Amendments

The following are the Amendments to the Constitution. The first ten Amendments
collectively are commonly known as the Bill of Rights.

Amendment 1 – Freedom of Religion, Press, Expression. Ratified 12/15/1791.

Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.

Amendment 2 – Right to Bear Arms. Ratified 12/15/1791.

A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.

Amendment 3 – Quartering of Soldiers. Ratified 12/15/1791.

No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment 4 – Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.

Amendment 5 – Trial and Punishment, Compensation for Takings. Ratified
12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.

Amendment 6 – Right to Speedy Trial, Confrontation of Witnesses. Ratified
12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.

Amendment 7 – Trial by Jury in Civil Cases. Ratified 12/15/1791.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-
examined in any Court of the United States, than according to the rules of the common
law.

Amendment 8 – Cruel and Unusual Punishment. Ratified 12/15/1791.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.

Amendment 10 – Powers of the States and People. Ratified 12/15/1791.

The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.

Amendment 11 – Judicial Limits. Ratified 2/7/1795.

The Judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.

Amendment 12 – Choosing the President, Vice-President. Ratified 6/15/1804.

The Electors shall meet in their respective states, and vote by ballot for President and
Vice-President, one of whom, at least, shall not be an inhabitant of the same state with
themselves; they shall name in their ballots the person voted for as President, and in
distinct ballots the person voted for as Vice-President, and they shall make distinct lists
of all persons voted for as President, and of all persons voted for as Vice-President and of
the number of votes for each, which lists they shall sign and certify, and transmit sealed
to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if
such number be a majority of the whole number of Electors appointed; and if no person
have such majority, then from the persons having the highest numbers not exceeding
three on the list of those voted for as President, the House of Representatives shall choose
immediately, by ballot, the President. But in choosing the President, the votes shall be
taken by states, the representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the states, and a
majority of all the states shall be necessary to a choice. And if the House of
Representatives shall not choose a President whenever the right of choice shall devolve
upon them, before the fourth day of March next following, then the Vice-President shall
act as President, as in the case of the death or other constitutional disability of the
President.

The person having the greatest number of votes as Vice-President, shall be the Vice-
President, if such number be a majority of the whole number of Electors appointed, and if
no person have a majority, then from the two highest numbers on the list, the Senate shall
choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the
whole number of Senators, and a majority of the whole number shall be necessary to a
choice. But no person constitutionally ineligible to the office of President shall be eligible
to that of Vice-President of the United States.

Amendment 13 – Slavery Abolished. Ratified 12/6/1865.

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof
the party shall have been duly convicted, shall exist within the United States, or any place
subject to their jurisdiction.

2.

Congress shall have power to enforce this article by appropriate legislation.

Amendment 14 – Citizenship Rights. Ratified 7/9/1868.

1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But when the right to vote at any election for the choice of electors for
President and Vice-President of the United States, Representatives in Congress, the
Executive and Judicial officers of a State, or the members of the Legislature thereof, is
denied to any of the male inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President and
Vice-President, or hold any office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of Congress, or as an officer of
the United States, or as a member of any State legislature, or as an executive or judicial
officer of any State, to support the Constitution of the United States, shall have engaged
in insurrection or rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts
incurred for payment of pensions and bounties for services in suppressing insurrection or
rebellion, shall not be questioned. But neither the United States nor any State shall
assume or pay any debt or obligation incurred in aid of insurrection or rebellion against
the United States, or any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of
this article.

Amendment 15 – Race No Bar to Vote. Ratified 2/3/1870.

1. The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of
servitude.

2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment 16 – Status of Income Tax Clarified. Ratified 2/3/1913.

The Congress shall have power to lay and collect taxes on incomes, from whatever
source derived, without apportionment among the several States, and without regard to
any census or enumeration.

Amendment 17 – Senators Elected by Popular Vote. Ratified 4/8/1913.

The Senate of the United States shall be composed of two Senators from each State,
elected by the people thereof, for six years; and each Senator shall have one vote. The
electors in each State shall have the qualifications requisite for electors of the most
numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive
authority of such State shall issue writs of election to fill such vacancies: Provided, That
the legislature of any State may empower the executive thereof to make temporary
appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator
chosen before it becomes valid as part of the Constitution.

Amendment 18 – Liquor Abolished. Ratified 1/16/1919. Repealed by Amendment 21,
12/5/1933.

1. After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or the
exportation thereof from the United States and all territory subject to the jurisdiction
thereof for beverage purposes is hereby prohibited.

2. The Congress and the several States shall have concurrent power to enforce this article
by appropriate legislation.

3. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of the several States, as provided in the Constitution,
within seven years from the date of the submission hereof to the States by the Congress.

Amendment 19 – Women’s Suffrage. Ratified 8/18/1920.

The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Amendment 20 – Presidential, Congressional Terms. Ratified 1/23/1933.

1. The terms of the President and Vice President shall end at noon on the 20th day of
January, and the terms of Senators and Representatives at noon on the 3d day of January,
of the years in which such terms would have ended if this article had not been ratified;
and the terms of their successors shall then begin.

2. The Congress shall assemble at least once in every year, and such meeting shall begin
at noon on the 3d day of January, unless they shall by law appoint a different day.

3. If, at the time fixed for the beginning of the term of the President, the President elect
shall have died, the Vice President elect shall become President. If a President shall not
have been chosen before the time fixed for the beginning of his term, or if the President
elect shall have failed to qualify, then the Vice President elect shall act as President until
a President shall have qualified; and the Congress may by law provide for the case
wherein neither a President elect nor a Vice President elect shall have qualified, declaring
who shall then act as President, or the manner in which one who is to act shall be
selected, and such person shall act accordingly until a President or Vice President shall
have qualified.

4. The Congress may by law provide for the case of the death of any of the persons from
whom the House of Representatives may choose a President whenever the right of choice
shall have devolved upon them, and for the case of the death of any of the persons from
whom the Senate may choose a Vice President whenever the right of choice shall have
devolved upon them.

5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification
of this article.

6. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of three-fourths of the several States within seven
years from the date of its submission.

Amendment 21 – Amendment 18 Repealed. Ratified 12/5/1933.

1. The eighteenth article of amendment to the Constitution of the United States is hereby
repealed.

2. The transportation or importation into any State, Territory, or possession of the United
States for delivery or use therein of intoxicating liquors, in violation of the laws thereof,
is hereby prohibited.

3. The article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by conventions in the several States, as provided in the Constitution,
within seven years from the date of the submission hereof to the States by the Congress.

Amendment 22 – Presidential Term Limits. Ratified 2/27/1951.

1. No person shall be elected to the office of the President more than twice, and no person
who has held the office of President, or acted as President, for more than two years of a
term to which some other person was elected President shall be elected to the office of
the President more than once. But this Article shall not apply to any person holding the
office of President, when this Article was proposed by the Congress, and shall not
prevent any person who may be holding the office of President, or acting as President,
during the term within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.

2. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of three-fourths of the several States within seven
years from the date of its submission to the States by the Congress.

Amendment 23 – Presidential Vote for District of Columbia. Ratified 3/29/1961.

1. The District constituting the seat of Government of the United States shall appoint in
such manner as the Congress may direct: A number of electors of President and Vice
President equal to the whole number of Senators and Representatives in Congress to
which the District would be entitled if it were a State, but in no event more than the least
populous State; they shall be in addition to those appointed by the States, but they shall
be considered, for the purposes of the election of President and Vice President, to be
electors appointed by a State; and they shall meet in the District and perform such duties
as provided by the twelfth article of amendment.

2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment 24 – Poll Tax Barred. Ratified 1/23/1964.

1. The right of citizens of the United States to vote in any primary or other election for
President or Vice President, for electors for President or Vice President, or for Senator or

Representative in Congress, shall not be denied or abridged by the United States or any
State by reason of failure to pay any poll tax or other tax.

2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment 25 – Presidential Disability and Succession. Ratified 2/10/1967.

1. In case of the removal of the President from office or of his death or resignation, the
Vice President shall become President.

2. Whenever there is a vacancy in the office of the Vice President, the President shall
nominate a Vice President who shall take office upon confirmation by a majority vote of
both Houses of Congress.

3. Whenever the President transmits to the President pro tempore of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged by the Vice
President as Acting President.

4. Whenever the Vice President and a majority of either the principal officers of the
executive departments or of such other body as Congress may by law provide, transmit to
the President pro tempore of the Senate and the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the powers and duties of
his office, the Vice President shall immediately assume the powers and duties of the
office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and
the Speaker of the House of Representatives his written declaration that no inability
exists, he shall resume the powers and duties of his office unless the Vice President and a
majority of either the principal officers of the executive department or of such other body
as Congress may by law provide, transmit within four days to the President pro tempore
of the Senate and the Speaker of the House of Representatives their written declaration
that the President is unable to discharge the powers and duties of his office. Thereupon
Congress shall decide the issue, assembling within forty eight hours for that purpose if
not in session. If the Congress, within twenty one days after receipt of the latter written
declaration, or, if Congress is not in session, within twenty one days after Congress is
required to assemble, determines by two thirds vote of both Houses that the President is
unable to discharge the powers and duties of his office, the Vice President shall continue
to discharge the same as Acting President; otherwise, the President shall resume the
powers and duties of his office.

Amendment 26 – Voting Age Set to 18 Years. Ratified 7/1/1971.

1. The right of citizens of the United States, who are eighteen years of age or older, to
vote shall not be denied or abridged by the United States or by any State on account of
age.

2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment 27 – Limiting Congressional Pay Increases. Ratified 5/7/1992.

No law, varying the compensation for the services of the Senators and Representatives,
shall take effect, until an election of Representatives shall have intervened.

This file was prepared by USConstitution.net. Find us on the web at
http://www.usconstitution.net.

The Declaration of

Independence
& the
Constitution
of the United States

M-654 (rev. 07/08)

The Declaration of
Independence
& the
Constitution
of the United States

“The sacred rights of mankind are not to be

rummaged for, among old parchments, or musty

records. They are written, as with a sun beam

in the whole volume of human nature, by the

hand of the divinity itself; and can never be

erased or obscured by mortal power.”

— Alexander Hamilton, 1775

“The basis of our political systems is the

right of the people to make and to alter

their Constitutions of Government. But the

Constitution which at any time exists, ‘till

changed by an explicit and authentic act of the

whole People is sacredly obligatory upon all.”

— George Washington, 1796

“The Declaration of Independence…[is the]

declaratory charter of our rights, and of the

rights of man.”

— Thomas Jefferson, 1819

MeSSage froM The DIreCTor

The Declaration of Independence and the
Constitution of the United States are the two most
important, and enduring documents in our Nation’s
history. It has been said that “the Declaration of
Independence was the promise; the Constitution
was the fulfillment.”

More than 200 years ago, our Founding
Fathers set out to establish a government based
on individual rights and the rule of law. The
Declaration of Independence, which officially
broke all political ties between the American
colonies and Great Britain, set forth the ideas and
principles behind a just and fair government, and
the Constitution outlined how this government
would function. Our founding documents have
withstood the test of time, rising to the challenge
each time they were called upon.

Make no mistake, we have been presented with
a timeless framework for self-government, but in
order to preserve this wonderful gift, we must hold
these principles close to our hearts. I encourage you
to read and understand these documents. I promise
you will be nothing short of inspired.

Director
U.S. Citizenship and Immigration Services

�

The DeCLaraTIoN of INDePeNDeNCe
Action of Second Continental Congress, July 4, 1776
The Unanimous Declaration of the thirteen united States of America

WheN in the Course of human events, it
becomes necessary for one People to dissolve the
Political Bands which have connected them with
another, and to assume among the Powers of the
earth, the separate and equal Station to which the
Laws of Nature and of Nature’s God entitle them,
a decent Respect to the Opinions of Mankind
requires that they should declare the causes which
impel them to the Separation.

We hold these Truths to be self-evident,
that all Men are created equal, that they are
endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty, and
the pursuit of happiness—That to secure these
Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of the
Governed, that whenever any Form of Government
becomes destructive of these ends, it is the Right of
the People to alter or to abolish it, and to institute
new Government, laying its Foundation on such
Principles, and organizing its Powers in such
Form, as to them shall seem most likely to effect
their Safety and happiness. Prudence, indeed, will
dictate that Governments long established should
not be changed for light and transient Causes;
and accordingly all experience hath shewn, that
Mankind are more disposed to suffer, while evils are
sufferable, than to right themselves by abolishing
the Forms to which they are accustomed. But when

� �

a long Train of Abuses and Usurpations, pursuing
invariably the same Object, evinces a design to reduce
them under absolute Despotism, it is their Right, it
is their Duty, to throw off such Government, and to
provide new Guards for their future Security. Such
has been the patient Sufferance of these Colonies;
and such is now the Necessity which constrains
them to alter their former Systems of Government.
The history of the present King of Great-Britain
is a history of repeated Injuries and Usurpations,
all having in direct Object the establishment of an
absolute Tyranny over these States. To prove this, let
Facts be submitted to a candid World.

he has refused his Assent to Laws, the most
wholesome and necessary for the public Good.

he has forbidden his Governors to pass Laws
of immediate and pressing Importance, unless
suspended in their Operation till his Assent should
be obtained; and when so suspended, he has utterly
neglected to attend to them.

he has refused to pass other Laws for the
Accommodation of large Districts of People,
unless those People would relinquish the Right
of Representation in the Legislature, a Right
inestimable to them, and formidable to Tyrants
only.

he has called together Legislative Bodies at
Places unusual, uncomfortable, and distant from
the Depository of their public Records, for the sole
Purpose of fatiguing them into Compliance with
his Measures.

he has dissolved Representative houses
repeatedly, for opposing with manly Firmness his
Invasions on the Rights of the People.

he has refused for a long Time, after such
Dissolutions, to cause others to be elected;
whereby the Legislative Powers, incapable of
Annihilation, have returned to the People at large
for their exercise; the State remaining in the mean
time exposed to all the Dangers of Invasion from
without, and Convulsions within.

he has endeavoured to prevent the Population
of these States; for that Purpose obstructing the
Laws for Naturalization of Foreigners; refusing to
pass others to encourage their Migrations hither,
and raising the Conditions of new Appropriations
of Lands.

he has obstructed the Administration of Justice,
by refusing his Assent to Laws for establishing
Judiciary Powers.

he has made Judges dependent on his Will
alone, for the Tenure of their Offices, and the
Amount and Payment of their Salaries.

he has erected a Multitude of new Offices,
and sent hither Swarms of Officers to harrass our
People, and eat out their Substance.

he has kept among us, in Times of Peace,
Standing Armies, without the consent of our
Legislatures.

he has affected to render the Military
independent of and superior to the Civil Power.

he has combined with others to subject us
to a Jurisdiction foreign to our Constitution, and
unacknowledged by our Laws; giving his Assent to
their Acts of pretended Legislation:

For quartering large Bodies of Armed Troops
among us:

� �

For protecting them, by a mock Trial, from
Punishment for any Murders which they should
commit on the Inhabitants of these States:

For cutting off our Trade with all Parts of the
World:

For imposing Taxes on us without our
Consent:

For depriving us, in many Cases, of the Benefits
of Trial by Jury:

For transporting us beyond Seas to be tried for
pretended Offences:

For abolishing the free System of english
Laws in a neighbouring Province, establishing
therein an arbitrary Government, and enlarging its
Boundaries, so as to render it at once an example
and fit Instrument for introducing the same
absolute Rule into these Colonies:

For taking away our Charters, abolishing our
most valuable Laws, and altering fundamentally
the Forms of our Governments:

For suspending our own Legislatures, and
declaring themselves invested with Power to
legislate for us in all Cases whatsoever.

he has abdicated Government here, by
declaring us out of his Protection and waging War
against us.

he has plundered our Seas, ravaged our Coasts,
burnt our Towns, and destroyed the Lives of our
People.

he is, at this Time, transporting large Armies
of foreign Mercenaries to compleat the Works of
Death, Desolation, and Tyranny, already begun
with circumstances of Cruelty and Perfidy, scarcely

paralleled in the most barbarous Ages, and totally
unworthy the head of a civilized Nation.

he has constrained our fellow Citizens taken
Captive on the high Seas to bear Arms against
their Country, to become the executioners of their
Friends and Brethren, or to fall themselves by their
hands.

he has excited domestic Insurrections
amongst us, and has endeavoured to bring on the
Inhabitants of our Frontiers, the merciless Indian
Savages, whose known Rule of Warfare, is an
undistinguished Destruction of all Ages, Sexes and
Conditions.

In every stage of these Oppressions we have
Petitioned for Redress in the most humble Terms:
Our repeated Petitions have been answered only by
repeated Injury. A Prince, whose Character is thus
marked by every act which may define a Tyrant, is
unfit to be the Ruler of a free People.

Nor have we been wanting in Attentions to
our British Brethren. We have warned them from
Time to Time of Attempts by their Legislature to
extend an unwarrantable Jurisdiction over us. We
have reminded them of the Circumstances of our
emigration and Settlement here. We have appealed
to their native Justice and Magnanimity, and we
have conjured them by the Ties of our common
Kindred to disavow these Usurpations, which,
would inevitably interrupt our Connections and
Correspondence. They too have been deaf to the
Voice of Justice and of Consanguinity. We must,
therefore, acquiesce in the Necessity, which
denounces our Separation, and hold them, as we

� �

hold the rest of Mankind, enemies in War, in Peace,
Friends.

We, therefore, the Representatives of the united
States of America, in General Congress, Assembled,
appealing to the Supreme Judge of the World for
the Rectitude of our Intentions, do, in the Name,
and by Authority of the good People of these
Colonies, solemnly Publish and Declare, That these
United Colonies are, and of Right ought to be Free
and Independent States; that they are absolved from
all Allegiance to the British Crown, and that all
political Connection between them and the State of
Great-Britain, is and ought to be totally dissolved;
and that as Free and Independent States, they have
full Power to levy War, conclude Peace, contract
Alliances, establish Commerce, and to do all other
Acts and Things which Independent States may of
right do. —And for the support of this Declaration,
with a firm Reliance on the Protection of divine
Providence, we mutually pledge to each other our
Lives, our Fortunes, and our sacred honor.

Signed by ORDeR and in BehALF of the CONGReSS,

JOhN hANCOCK, President

Attest.
ChARLeS ThOMSON, Secretary

Georgia:
Button Gwinnett
Lyman hall
George Walton

North Carolina:
William hooper
Joseph hewes
John Penn

South Carolina:
edward Rutledge
Thomas heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton

Massachusetts:
Samuel Adams
John Adams
Robert Treat Paine
elbridge Gerry
John hancock

Maryland:
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton

Virginia:
George Wythe
Richard henry Lee
Thomas Jefferson
Benjamin harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton

Pennsylvania:
Robert Morris
Benjamin Rush

Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross

Delaware:
Caesar Rodney
George Read
Thomas McKean

New York:
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris

New Jersey:
Richard Stockton
John Witherspoon
Francis hopkinson
John hart
Abraham Clark

New Hampshire:
Josiah Bartlett
Matthew Thornton
William Whipple

Rhode Island:
Stephen hopkins
William ellery

Connecticut:
Roger Sherman
Samuel huntington
William Williams
Oliver Wolcott

Signers of the Declaration of Independence

� �

The CoNSTITUTIoN
of The

UNITeD STaTeS of aMerICa

We the People of the United States, in Order to form
a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution
for the United States of America.

article. I.

Section. 1. All legislative Powers herein
granted shall be vested in a Congress of the United
States, which shall consist of a Senate and house of
Representatives.

Section. 2. The house of Representatives shall
be composed of Members chosen every second
Year by the People of the several States, and the
Electors in each State shall have the Qualifications
requisite for electors of the most numerous Branch
of the State Legislature.

No Person shall be a Representative who shall
not have attained to the Age of twenty five Years,
and been seven Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant
of that State in which he shall be chosen.

[Representatives and direct Taxes shall be
apportioned among the several States which may
be included within this Union, according to their
respective Numbers, which shall be determined
by adding to the whole Number of free Persons,
including those bound to Service for a Term of

�0

��

Years, and excluding Indians not taxed, three fifths
of all other Persons.]1 The actual enumeration
shall be made within three Years after the first
Meeting of the Congress of the United States, and
within every subsequent Term of ten Years, in such
Manner as they shall by Law direct. The number
of Representatives shall not exceed one for every
thirty Thousand, but each State shall have at Least
one Representative; and until such enumeration
shall be made, the State of New hampshire shall
be entitled to chuse three, Massachusetts eight,
Rhode-Island and Providence Plantations one,
Connecticut five, New-York six, New Jersey four,
Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina
five, and Georgia three.

When vacancies happen in the Representation
from any State, the executive Authority thereof
shall issue Writs of Election to fill such Vacancies.

The house of Representatives shall chuse their
Speaker and other Officers; and shall have the sole
Power of Impeachment.

Section. 3. The Senate of the United States
shall be composed of two Senators from each State,
[chosen by the Legislature thereof,]2 for six Years;
and each Senator shall have one Vote.

Immediately after they shall be assembled in
Consequence of the first Election, they shall be
divided as equally as may be into three Classes.
The Seats of the Senators of the first Class shall
be vacated at the expiration of the second Year, of

1Changed by section 2 of the Fourteenth Amendment.
2Changed by the Seventeenth Amendment.

the second Class at the expiration of the fourth
Year, and of the third Class at the expiration of
the sixth Year, so that one third may be chosen
every second Year; [and if Vacancies happen by
Resignation, or otherwise, during the Recess of
the Legislature of any State, the executive thereof
may make temporary Appointments until the next
Meeting of the Legislature, which shall then fill
such Vacancies.]�

No Person shall be a Senator who shall not
have attained to the Age of thirty Years, and been
nine Years a Citizen of the United States, and who
shall not, when elected, be an Inhabitant of that
State for which he shall be chosen.

The Vice President of the United States shall
be President of the Senate, but shall have no Vote,
unless they be equally divided.

The Senate shall chuse their other Officers,
and also a President pro tempore, in the Absence
of the Vice President, or when he shall exercise the
Office of President of the United States.

The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President
of the United States is tried, the Chief Justice shall
preside: And no Person shall be convicted without
the Concurrence of two thirds of the Members
present.

Judgment in Cases of Impeachment shall
not extend further than to removal from Office,
and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States:

�Changed by the Seventeenth Amendment.

�� ��

but the Party convicted shall nevertheless be liable
and subject to Indictment, Trial, Judgment and
Punishment, according to Law.

Section. 4. The Times, Places and Manner of
holding elections for Senators and Representatives,
shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the
Places of chusing Senators.

The Congress shall assemble at least once in
every Year, and such Meeting shall be [on the first
Monday in December,]4 unless they shall by Law
appoint a different Day.

Section. 5. each house shall be the Judge of
the Elections, Returns and Qualifications of its own
Members, and a Majority of each shall constitute a
Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to
compel the Attendance of absent Members, in such
Manner, and under such Penalties as each house
may provide.

each house may determine the Rules of its
Proceedings, punish its Members for disorderly
Behaviour, and, with the Concurrence of two
thirds, expel a Member.

each house shall keep a Journal of its
Proceedings, and from time to time publish
the same, excepting such Parts as may in their
Judgment require Secrecy; and the Yeas and Nays
of the Members of either house on any question
shall, at the Desire of one fifth of those Present, be
entered on the Journal.

4Changed by section 2 of the Twentieth Amendment.

Neither house, during the Session of Congress,
shall, without the Consent of the other, adjourn for
more than three days, nor to any other Place than
that in which the two houses shall be sitting.

Section. 6. The Senators and Representatives
shall receive a Compensation for their Services, to
be ascertained by Law, and paid out of the Treasury
of the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance
at the Session of their respective houses, and in
going to and returning from the same; and for any
Speech or Debate in either house, they shall not be
questioned in any other Place.

No Senator or Representative shall, during the
Time for which he was elected, be appointed to any
civil Office under the Authority of the United States,
which shall have been created, or the emoluments
whereof shall have been encreased during such
time; and no Person holding any Office under the
United States, shall be a Member of either house
during his Continuance in Office.

Section. 7. All Bills for raising Revenue shall
originate in the house of Representatives; but the
Senate may propose or concur with Amendments
as on other Bills.

every Bill which shall have passed the house
of Representatives and the Senate, shall, before it
become a Law, be presented to the President of
the United States; If he approve he shall sign it,
but if not he shall return it, with his Objections
to that house in which it shall have originated,
who shall enter the Objections at large on their

�� ��

Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that house shall
agree to pass the Bill, it shall be sent, together with
the Objections, to the other house, by which it
shall likewise be reconsidered, and if approved by
two thirds of that house, it shall become a Law. But
in all such Cases the Votes of both houses shall be
determined by yeas and Nays, and the Names of
the Persons voting for and against the Bill shall be
entered on the Journal of each house respectively.
If any Bill shall not be returned by the President
within ten Days (Sundays excepted) after it shall
have been presented to him, the Same shall be a
Law, in like Manner as if he had signed it, unless
the Congress by their Adjournment prevent its
Return, in which Case it shall not be a Law.

every Order, Resolution, or Vote to which
the Concurrence of the Senate and house of
Representatives may be necessary (except on a
question of Adjournment) shall be presented to
the President of the United States; and before the
Same shall take effect, shall be approved by him, or
being disapproved by him, shall be repassed by two
thirds of the Senate and house of Representatives,
according to the Rules and Limitations prescribed
in the Case of a Bill.

Section. 8. The Congress shall have Power To
lay and collect Taxes, Duties, Imposts and excises,
to pay the Debts and provide for the common
Defence and general Welfare of the United States;
but all Duties, Imposts and excises shall be uniform
throughout the United States;

To borrow Money on the credit of the United
States;

To regulate Commerce with foreign Nations,
and among the several States, and with the Indian
Tribes;

To establish an uniform Rule of Naturalization,
and uniform Laws on the subject of Bankruptcies
throughout the United States;

To coin Money, regulate the Value thereof, and
of foreign Coin, and fix the Standard of Weights
and Measures;

To provide for the Punishment of counterfeiting
the Securities and current Coin of the United
States;

To establish Post Offices and post Roads;
To promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective
Writings and Discoveries;

To constitute Tribunals inferior to the supreme
Court;

To define and punish Piracies and Felonies
committed on the high Seas, and Offences against
the Law of Nations;

To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on
Land and Water;

To raise and support Armies, but no
Appropriation of Money to that Use shall be for a
longer Term than two Years;

To provide and maintain a Navy;
To make Rules for the Government and

Regulation of the land and naval Forces;

�� ��

To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and
repel Invasions;

To provide for organizing, arming, and
disciplining, the Militia, and for governing such
Part of them as may be employed in the Service of
the United States, reserving to the States respectively,
the Appointment of the Officers, and the Authority
of training the Militia according to the discipline
prescribed by Congress;

To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding
ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the
Seat of the Government of the United States, and
to exercise like Authority over all Places purchased
by the Consent of the Legislature of the State in
which the Same shall be, for the erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful
Buildings;—And

To make all Laws which shall be necessary
and proper for carrying into execution the
foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United
States, or in any Department or Officer thereof.

Section. 9. The Migration or Importation
of such Persons as any of the States now existing
shall think proper to admit, shall not be prohibited
by the Congress prior to the Year one thousand
eight hundred and eight, but a Tax or duty may be
imposed on such Importation, not exceeding ten
dollars for each Person.

The Privilege of the Writ of habeas Corpus
shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require
it.

No Bill of Attainder or ex post facto Law shall
be passed.

No Capitation, or other direct, Tax shall be laid,
unless in Proportion to the Census or enumeration
herein before directed to be taken.�

No Tax or Duty shall be laid on Articles
exported from any State.

No Preference shall be given by any Regulation
of Commerce or Revenue to the Ports of one State
over those of another: nor shall Vessels bound to,
or from, one State, be obliged to enter, clear, or pay
Duties in another.

No Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by
Law; and a regular Statement and Account of the
Receipts and expenditures of all public Money
shall be published from time to time.

No Title of Nobility shall be granted by the
United States: And no Person holding any Office
of Profit or Trust under them, shall, without the
Consent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever,
from any King, Prince, or foreign State.

Section. 10. No State shall enter into any Treaty,
Alliance, or Confederation; grant Letters of Marque
and Reprisal; coin Money; emit Bills of Credit;
make any Thing but gold and silver Coin a Tender
in Payment of Debts; pass any Bill of Attainder, ex

�See the Sixteenth Amendment.

�� ��

post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the
Congress, lay any Imposts or Duties on Imports or
exports, except what may be absolutely necessary
for executing it’s inspection Laws: and the net
Produce of all Duties and Imposts, laid by any State
on Imports or exports, shall be for the Use of the
Treasury of the United States; and all such Laws
shall be subject to the Revision and Controul of
the Congress.

No State shall, without the Consent of
Congress, lay any Duty of Tonnage, keep Troops,
or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with
a foreign Power, or engage in War, unless actually
invaded, or in such imminent Danger as will not
admit of delay.

article. II.

Section. 1. The executive Power shall be vested
in a President of the United States of America. he
shall hold his Office during the Term of four Years,
and, together with the Vice President, chosen for
the same Term, be elected, as follows:

each State shall appoint, in such Manner as
the Legislature thereof may direct, a Number of
electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled
in the Congress: but no Senator or Representative,
or Person holding an Office of Trust or Profit under
the United States, shall be appointed an elector.

[The electors shall meet in their respective
States, and vote by Ballot for two Persons, of whom

one at least shall not be an Inhabitant of the same
State with themselves. And they shall make a List
of all the Persons voted for, and of the Number
of Votes for each; which List they shall sign and
certify, and transmit sealed to the Seat of the
Government of the United States, directed to the
President of the Senate. The President of the Senate
shall, in the Presence of the Senate and house of
Representatives, open all the Certificates, and the
Votes shall then be counted. The Person having the
greatest Number of Votes shall be the President, if
such Number be a Majority of the whole Number
of electors appointed; and if there be more than
one who have such Majority, and have an equal
Number of Votes, then the house of Representatives
shall immediately chuse by Ballot one of them for
President; and if no Person have a Majority, then
from the five highest on the List the said House shall
in like Manner chuse the President. But in chusing
the President, the Votes shall be taken by States,
the Representation from each State having one
Vote; A quorum for this Purpose shall consist of a
Member or Members from two thirds of the States,
and a Majority of all the States shall be necessary
to a Choice. In every Case, after the Choice of the
President, the Person having the greatest Number
of Votes of the electors shall be the Vice President.
But if there should remain two or more who have
equal Votes, the Senate shall chuse from them by
Ballot the Vice President.]6

The Congress may determine the Time of
chusing the electors, and the Day on which they

6Changed by the Twelfth Amendment.

�0 ��

shall give their Votes; which Day shall be the same
throughout the United States.

No Person except a natural born Citizen, or
a Citizen of the United States, at the time of the
Adoption of this Constitution, shall be eligible to
the Office of President; neither shall any Person be
eligible to that Office who shall not have attained
to the Age of thirty five Years, and been fourteen
Years a Resident within the United States.

[In Case of the Removal of the President from
Office, or of his Death, Resignation, or Inability to
discharge the Powers and Duties of the said Office,
the Same shall devolve on the Vice President, and
the Congress may by Law provide for the Case
of Removal, Death, Resignation or Inability, both
of the President and Vice President, declaring
what Officer shall then act as President, and such
Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.]7

The President shall, at stated Times, receive for
his Services, a Compensation, which shall neither
be increased nor diminished during the Period for
which he shall have been elected, and he shall not
receive within that Period any other emolument
from the United States, or any of them.

Before he enter on the Execution of his Office,
he shall take the following Oath or Affirmation:—”I
do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect
and defend the Constitution of the United States.”

7Changed by the Twenty-Fifth Amendment.

Section. 2. The President shall be Commander
in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called
into the actual Service of the United States; he may
require the Opinion, in writing, of the principal
Officer in each of the executive Departments, upon
any Subject relating to the Duties of their respective
Offices, and he shall have Power to grant Reprieves
and Pardons for Offences against the United States,
except in Cases of Impeachment.

he shall have Power, by and with the Advice
and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present
concur; and he shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers
of the United States, whose Appointments are not
herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law
vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the
Courts of Law, or in the heads of Departments.

The President shall have Power to fill up all
Vacancies that may happen during the Recess of
the Senate, by granting Commissions which shall
expire at the end of their next Session.

Section. 3. he shall from time to time give
to the Congress Information of the State of the
Union, and recommend to their Consideration
such Measures as he shall judge necessary and
expedient; he may, on extraordinary Occasions,
convene both houses, or either of them, and in

�� ��

Case of Disagreement between them, with Respect
to the Time of Adjournment, he may adjourn them
to such Time as he shall think proper; he shall
receive Ambassadors and other public Ministers; he
shall take Care that the Laws be faithfully executed,
and shall Commission all the Officers of the United
States.

Section. 4. The President, Vice President and all
civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and
Misdemeanors.

article III.

Section. 1. The judicial Power of the United
States, shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges, both
of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated
Times, receive for their Services, a Compensation,
which shall not be diminished during their
Continuance in Office.

Section. 2. The judicial Power shall extend
to all Cases, in Law and equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their
Authority;—to all Cases affecting Ambassadors,
other public Ministers and Consuls;—to all Cases
of admiralty and maritime Jurisdiction;—to
Controversies to which the United States shall be
a Party;—to Controversies between two or more
States;—[between a State and Citizens of another

State;—]� between Citizens of different States;—
between Citizens of the same State claiming Lands
under Grants of different States, [and between a
State, or the Citizens thereof, and foreign States,
Citizens or Subjects.]�

In all Cases affecting Ambassadors, other
public Ministers and Consuls, and those in which
a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such
exceptions, and under such Regulations as the
Congress shall make.

The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall
have been committed; but when not committed
within any State, the Trial shall be at such Place or
Places as the Congress may by Law have directed.

Section. 3. Treason against the United States,
shall consist only in levying War against them, or
in adhering to their enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the
Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.

�Changed by the eleventh Amendment.
�Changed by the eleventh Amendment.

�� ��

article. IV.

Section. 1. Full Faith and Credit shall be given
in each State to the public Acts, Records, and judicial
Proceedings of every other State; And the Congress
may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be
proved, and the effect thereof.

Section. 2. The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens
in the several States.

A Person charged in any State with Treason,
Felony, or other Crime, who shall flee from Justice,
and be found in another State, shall on Demand of
the executive Authority of the State from which he
fled, be delivered up, to be removed to the State
having Jurisdiction of the Crime.

[No Person held to Service or Labour in one
State, under the Laws thereof, escaping into another,
shall, in Consequence of any Law or Regulation
therein, be discharged from such Service or Labour,
but shall be delivered up on Claim of the Party to
whom such Service or Labour may be due.]10

Section. 3. New States may be admitted by
the Congress into this Union; but no new State
shall be formed or erected within the Jurisdiction
of any other State; nor any State be formed by the
Junction of two or more States, or Parts of States,
without the Consent of the Legislatures of the
States concerned as well as of the Congress.

The Congress shall have Power to dispose of and
make all needful Rules and Regulations respecting

10Changed by the Thirteenth Amendment.

the Territory or other Property belonging to the
United States; and nothing in this Constitution
shall be so construed as to Prejudice any Claims of
the United States, or of any particular State.

Section. 4. The United States shall guarantee
to every State in this Union a Republican Form of
Government, and shall protect each of them against
Invasion; and on Application of the Legislature, or
of the executive (when the Legislature cannot be
convened) against domestic Violence.

article. V.

The Congress, whenever two thirds of both
houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the
several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to
all Intents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three fourths
of the several States, or by Conventions in three
fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress;
Provided that no Amendment which may be made
prior to the Year One thousand eight hundred and
eight shall in any Manner affect the first and fourth
Clauses in the Ninth Section of the first Article; and
that no State, without its Consent, shall be deprived
of it’s equal Suffrage in the Senate.

article. VI.

All Debts contracted and engagements entered
into, before the Adoption of this Constitution, shall

�� ��

be as valid against the United States under this
Constitution, as under the Confederation.

This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made,
under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.

The Senators and Representatives before
mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers,
both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support
this Constitution; but no religious Test shall ever be
required as a Qualification to any Office or public
Trust under the United States.

article. VII.

The Ratification of the Conventions of nine
States, shall be sufficient for the Establishment of
this Constitution between the States so ratifying
the Same.

done in Convention by the Unanimous
Consent of the States present the Seventeenth
Day of September in the Year of our Lord one
thousand seven hundred and eighty seven and of
the Independence of the United States of America
the Twelfth In Witness whereof We have hereunto
subscribed our Names,

G°. Washington—Presidt.
and deputy from Virginia

New Hampshire
John Langdon
Nicholas Gilman

Massachusetts
Nathaniel Gorham
Rufus King

Connecticut
Wm. Saml. Johnson
Roger Sherman

New York
Alexander hamilton

New Jersey
Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton

Pennsylvania
B Franklin
Thomas Mifflin
Robt Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris

Delaware
Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom

Maryland
James Mchenry
Dan of St Thos. Jenifer
Danl Carroll

Virginia
John Blair—
James Madison Jr.

North Carolina
Wm. Blount
Richd. Dobbs Spaight
hu Williamson

South Carolina
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler

Georgia
William Few
Abr Baldwin

Attest William Jackson Secretary

Signers of the
Constitution of the United States of america

�� ��

In Convention Monday
September 17th 1787.

Present
The States of

New hampshire, Massachusetts, Connecticut, Mr.
hamilton from New York, New Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North Carolina,
South Carolina and Georgia.

Resolved,
That the preceeding Constitution be laid

before the United States in Congress assembled,
and that it is the Opinion of this Convention, that
it should afterwards be submitted to a Convention
of Delegates, chosen in each State by the People
thereof, under the Recommendation of its
Legislature, for their Assent and Ratification; and
that each Convention assenting to, and ratifying
the Same, should give Notice thereof to the United
States in Congress assembled. Resolved, That it is
the Opinion of this Convention, that as soon as
the Conventions of nine States shall have ratified
this Constitution, the United States in Congress
assembled should fix a Day on which Electors
should be appointed by the States which shall have
ratified the same, and a Day on which the Electors
should assemble to vote for the President, and
the Time and Place for commencing Proceedings
under this Constitution.

That after such Publication the electors should
be appointed, and the Senators and Representatives
elected: That the electors should meet on the
Day fixed for the Election of the President, and
should transmit their Votes certified, signed,
sealed and directed, as the Constitution requires,
to the Secretary of the United States in Congress
assembled, that the Senators and Representatives
should convene at the Time and Place assigned;
that the Senators should appoint a President of the
Senate, for the sole Purpose of receiving, opening
and counting the Votes for President; and, that after
he shall be chosen, the Congress, together with
the President, should, without Delay, proceed to
execute this Constitution.

By the unanimous Order of the Convention

G°. WAShINGTON—Presidt.

W. JACKSON Secretary.

�0 ��

Congress oF THe UniTed sTaTes11
begun and held at the City of New-York,

on Wednesday the fourth of March,
one thousand seven hundred and eighty nine

The Conventions of a number of the
States, having at the time of their adopting the
Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further
declaratory and restrictive clauses should be added:
And as extending the ground of public confidence
in the Government, will best ensure the beneficent
ends of its institution:

ReSOLVeD by the Senate and house of
Representatives of the United States of America,
in Congress assembled, two thirds of both
houses concurring, that the following Articles be
proposed to the Legislatures of the several States,
as Amendments to the Constitution of the United
States, all or any of which Articles, when ratified
by three fourths of the said Legislatures, to be
valid to all intents and purposes, as part of the said
Constitution; viz.t.

ARTICLeS in addition to, and Amendment of
the Constitution of the United States of America,
proposed by Congress, and ratified by the

11 On September 2�, 17��, Congress transmitted to the
state legislatures twelve proposed amendments, two of
which, having to do with Congressional representation and
Congressional pay, were not adopted. The remaining ten
amendments became the Bill of Rights. The amendment
concerning Congressional pay was ratified on May 7,
1��2, becoming the Twenty-Seventh Amendment to the
Constitution.

Legislatures of the several States, pursuant to the
fifth Article of the original Constitution….

FReDeRICK AUGUSTUS MUhLeNBeRG
Speaker of the house of Representatives.
JOhN ADAMS, Vice-President of the United States,

and President of the Senate.
ATTeST,
JOhN BeCKLeY, Clerk of the house of

Representatives.
SAM. A. OTIS, Secretary of the Senate.

�� ��

aMeNDMeNTS12
To The CoNSTITUTIoN of The

UNITeD STaTeS of aMerICa

amendment I.

Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.

amendment II.

A well regulated Militia, being necessary to
the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed.

amendment III.

No Soldier shall, in time of peace be quartered
in any house, without the consent of the Owner,
nor in time of war, but in a manner to be prescribed
by law.

amendment IV.

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched,
and the persons or things to be seized.

12 The first ten Amendments (the Bill of Rights) were ratified
effective December 1�, 17�1.

�� ��

amendment V.

No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War
or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of
law; nor shall private property be taken for public
use, without just compensation.

amendment VI.

In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed; which district
shall have been previously ascertained by law, and
to be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defence.

amendment VII.

In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact tried
by a jury, shall be otherwise re-examined in any
Court of the United States, than according to the
rules of the common law.

amendment VIII.

excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.

amendment IX.

The enumeration in the Constitution of certain
rights shall not be construed to deny or disparage
others retained by the people.

amendment X.

The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to
the people.

amendment XI.13

The Judicial power of the United States shall
not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.

amendment XII.14

The electors shall meet in their respective
states, and vote by ballot for President and Vice-
President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they
shall name in their ballots the person voted for as
President, and in distinct ballots the person voted
for as Vice-President, and they shall make distinct

1�The Eleventh Amendment was ratified February 7, 1795.
14The Twelfth Amendment was ratified June 15, 1804.

�� ��

lists of all persons voted for as President, and of
all persons voted for as Vice-President, and of the
number of votes for each, which lists they shall
sign and certify, and transmit sealed to the seat of
the government of the United States, directed to
the President of the Senate;—The President of the
Senate shall, in the presence of the Senate and house
of Representatives, open all the certificates and the
votes shall then be counted;—The person having
the greatest number of votes for President, shall
be the President, if such number be a majority of
the whole number of electors appointed; and if no
person have such majority, then from the persons
having the highest numbers not exceeding three on
the list of those voted for as President, the house
of Representatives shall choose immediately, by
ballot, the President. But in choosing the President,
the votes shall be taken by states, the representation
from each state having one vote; a quorum for this
purpose shall consist of a member or members
from two-thirds of the states, and a majority of
all the states shall be necessary to a choice. [And
if the house of Representatives shall not choose
a President whenever the right of choice shall
devolve upon them, before the fourth day of March
next following, then the Vice-President shall act
as President, as in the case of the death or other
constitutional disability of the President—]1� The
person having the greatest number of votes as
Vice-President, shall be the Vice-President, if such
number be a majority of the whole number of
electors appointed, and if no person have a majority,

1�Superseded by section � of the Twentieth Amendment.

then from the two highest numbers on the list, the
Senate shall choose the Vice-President; a quorum
for the purpose shall consist of two-thirds of the
whole number of Senators, and a majority of the
whole number shall be necessary to a choice. But
no person constitutionally ineligible to the office of
President shall be eligible to that of Vice-President
of the United States.

amendment XIII.16

Section 1. Neither slavery nor involuntary
servitude, except as a punishment for crime
whereof the party shall have been duly convicted,
shall exist within the United States, or any place
subject to their jurisdiction.

Section 2. Congress shall have power to
enforce this article by appropriate legislation.

amendment XIV.17

Section 1. All persons born or naturalized in
the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.

Section 2. Representatives shall be apportioned
among the several States according to their

16The Thirteenth Amendment was ratified December 6, 1865.
17The Fourteenth Amendment was ratified July 9, 1868.

�� ��

respective numbers, counting the whole number
of persons in each State, excluding Indians not
taxed. But when the right to vote at any election
for the choice of electors for President and Vice
President of the United States, Representatives in
Congress, the Executive and Judicial officers of a
State, or the members of the Legislature thereof, is
denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens of
the United States, or in any way abridged, except
for participation in rebellion, or other crime, the
basis of representation therein shall be reduced in
the proportion which the number of such male
citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or
Representative in Congress, or elector of President
and Vice President, or hold any office, civil or
military, under the United States, or under any
State, who, having previously taken an oath, as a
member of Congress, or as an officer of the United
States, or as a member of any State legislature, or
as an executive or judicial officer of any State, to
support the Constitution of the United States, shall
have engaged in insurrection or rebellion against
the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds
of each house, remove such disability.

Section 4. The validity of the public debt of the
United States, authorized by law, including debts
incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion,

shall not be questioned. But neither the United
States nor any State shall assume or pay any debt
or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for
the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal
and void.

Section 5. The Congress shall have power to
enforce, by appropriate legislation, the provisions
of this article.

amendment XV.18

Section 1. The right of citizens of the United
States to vote shall not be denied or abridged by
the United States or by any State on account of
race, color, or previous condition of servitude.

Section 2. The Congress shall have power to
enforce this article by appropriate legislation.

amendment XVI.19

The Congress shall have power to lay and collect
taxes on incomes, from whatever source derived,
without apportionment among the several States,
and without regard to any census or enumeration.

amendment XVII.20

The Senate of the United States shall be
composed of two Senators from each State, elected
by the people thereof, for six years; and each Senator
shall have one vote. The electors in each State shall

1�The Fifteenth Amendment was ratified February 3, 1870.
1�The Sixteenth Amendment was ratified February 3, 1913.
20The Seventeenth Amendment was ratified April 8, 1913.

�0 ��

have the qualifications requisite for electors of the
most numerous branch of the State legislatures.

When vacancies happen in the representation
of any State in the Senate, the executive authority
of such State shall issue writs of election to fill
such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make
temporary appointments until the people fill the
vacancies by election as the legislature may direct.

This amendment shall not be so construed as
to affect the election or term of any Senator chosen
before it becomes valid as part of the Constitution.

amendment XVIII.21

[Section 1. After one year from the
ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the
importation thereof into, or the exportation thereof
from the United States and all territory subject to
the jurisdiction thereof for beverage purposes is
hereby prohibited.

Section 2. The Congress and the several States
shall have concurrent power to enforce this article
by appropriate legislation.

Section 3. This article shall be inoperative
unless it shall have been ratified as an amendment
to the Constitution by the legislatures of the several
States, as provided in the Constitution, within seven
years from the date of the submission hereof to the
States by the Congress.]

21 The Eighteenth Amendment was ratified January 16, 1919.
It was repealed by the Twenty-First Amendment, December
�, 1���.

amendment XIX.22

The right of citizens of the United States to
vote shall not be denied or abridged by the United
States or by any State on account of sex.

Congress shall have power to enforce this
article by appropriate legislation.

amendment XX.23

Section 1. The terms of the President and
the Vice President shall end at noon on the 20th
day of January, and the terms of Senators and
Representatives at noon on the �d day of January,
of the years in which such terms would have ended
if this article had not been ratified; and the terms of
their successors shall then begin.

Section 2. The Congress shall assemble at least
once in every year, and such meeting shall begin at
noon on the �d day of January, unless they shall by
law appoint a different day.

Section 3. If, at the time fixed for the beginning
of the term of the President, the President elect shall
have died, the Vice President elect shall become
President. If a President shall not have been chosen
before the time fixed for the beginning of his term,
or if the President elect shall have failed to qualify,
then the Vice President elect shall act as President
until a President shall have qualified; and the
Congress may by law provide for the case wherein
neither a President elect nor a Vice President elect
shall have qualified, declaring who shall then act

22The Nineteenth Amendment was ratified August 18, 1920.
2�The Twentieth Amendment was ratified January 23, 1933.

�� ��

as President, or the manner in which one who is
to act shall be selected, and such person shall act
accordingly until a President or Vice President shall
have qualified.

Section 4. The Congress may by law provide
for the case of the death of any of the persons from
whom the house of Representatives may choose a
President whenever the right of choice shall have
devolved upon them, and for the case of the death
of any of the persons from whom the Senate may
choose a Vice President whenever the right of
choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on
the 15th day of October following the ratification
of this article.

Section 6. This article shall be inoperative
unless it shall have been ratified as an amendment
to the Constitution by the legislatures of three-
fourths of the several States within seven years
from the date of its submission.

amendment XXI.24

Section 1. The eighteenth article of amendment
to the Constitution of the United States is hereby
repealed.

Section 2. The transportation or importation
into any State, Territory, or Possession of the United
States for delivery or use therein of intoxicating
liquors, in violation of the laws thereof, is hereby
prohibited.

24The Twenty-First Amendment was ratified December 5, 1933.

Section 3. This article shall be inoperative
unless it shall have been ratified as an amendment
to the Constitution by conventions in the several
States, as provided in the Constitution, within
seven years from the date of the submission hereof
to the States by the Congress.

amendment XXII.25

Section 1. No person shall be elected to
the office of the President more than twice, and
no person who has held the office of President,
or acted as President, for more than two years of
a term to which some other person was elected
President shall be elected to the office of President
more than once. But this Article shall not apply to
any person holding the office of President when
this Article was proposed by the Congress, and
shall not prevent any person who may be holding
the office of President, or acting as President,
during the term within which this Article becomes
operative from holding the office of President or
acting as President during the remainder of such
term.

Section 2. This article shall be inoperative
unless it shall have been ratified as an amendment
to the Constitution by the legislatures of three-
fourths of the several States within seven years
from the date of its submission to the States by the
Congress.

2� The Twenty-Second Amendment was ratified February 27,
1��1.

�� ��

amendment XXIII.26

Section 1. The District constituting the seat of
Government of the United States shall appoint in
such manner as Congress may direct:

A number of electors of President and Vice
President equal to the whole number of Senators
and Representatives in Congress to which the
District would be entitled if it were a State, but in
no event more than the least populous State; they
shall be in addition to those appointed by the States,
but they shall be considered, for the purposes of
the election of President and Vice President, to be
electors appointed by a State; and they shall meet
in the District and perform such duties as provided
by the twelfth article of amendment.

Section 2. The Congress shall have power to
enforce this article by appropriate legislation.

amendment XXIV.27

Section 1. The right of citizens of the United
States to vote in any primary or other election for
President or Vice President, for electors for President
or Vice President, or for Senator or Representative
in Congress, shall not be denied or abridged by the
United States or any State by reason of failure to
pay any poll tax or other tax.

Section 2. The Congress shall have power to
enforce this article by appropriate legislation.

26The Twenty-Third Amendment was ratified March 29, 1961.
27 The Twenty-Fourth Amendment was ratified January 23,

1�64.

amendment XXV.28

Section 1. In case of the removal of the
President from office or of his death or resignation,
the Vice President shall become President.

Section 2. Whenever there is a vacancy in
the office of the Vice President, the President shall
nominate a Vice President who shall take office
upon confirmation by a majority vote of both
houses of Congress.

Section 3. Whenever the President transmits
to the President pro tempore of the Senate and the
Speaker of the house of Representatives his written
declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to
them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice
President as Acting President.

Section 4. Whenever the Vice President and
a majority of either the principal officers of the
executive departments or of such other body
as Congress may by law provide, transmit to
the President pro tempore of the Senate and the
Speaker of the house of Representatives their
written declaration that the President is unable to
discharge the powers and duties of his office, the
Vice President shall immediately assume the powers
and duties of the office as Acting President.

Thereafter, when the President transmits
to the President pro tempore of the Senate and
the Speaker of the house of Representatives his

2� The Twenty-Fifth Amendment was ratified February 10,
1�67.

�� ��

written declaration that no inability exists, he
shall resume the powers and duties of his office
unless the Vice President and a majority of either
the principal officers of the executive department
or of such other body as Congress may by law
provide, transmit within four days to the President
pro tempore of the Senate and the Speaker of the
house of Representatives their written declaration
that the President is unable to discharge the powers
and duties of his office. Thereupon Congress shall
decide the issue, assembling within forty-eight
hours for that purpose if not in session. If the
Congress, within twenty-one days after receipt of
the latter written declaration, or, if Congress is not
in session, within twenty-one days after Congress
is required to assemble, determines by two-thirds
vote of both houses that the President is unable to
discharge the powers and duties of his office, the
Vice President shall continue to discharge the same
as Acting President; otherwise, the President shall
resume the powers and duties of his office.

amendment XXVI.29

Section 1. The right of citizens of the United
States, who are eighteen years of age or older, to
vote shall not be denied or abridged by the United
States or by any State on account of age.

Section 2. The Congress shall have power to
enforce this article by appropriate legislation.

2�The Twenty-Sixth Amendment was ratified July 1, 1971.

amendment XXVII.30

No law, varying the compensation for the
services of the Senators and Representatives, shall
take effect, until an election of Representatives shall
have intervened.

�0 Congress submitted the text of the Twenty-Seventh
Amendment to the States as part of the proposed Bill of
Rights on September 2�, 17��. The Amendment was not
ratified together with the first ten Amendments, which
became effective on December 1�, 17�1. The Twenty-
Seventh Amendment was ratified on May 7, 1992, by vote of
Michigan.

�� ��

DaTeS To reMeMber

May 25, 1787: The Constitutional Convention opens
with a quorum of seven states in Philadelphia to discuss
revising the Articles of Confederation. eventually, all
states but Rhode Island are represented.

September 17, 1787: All 12 state delegations approve
the Constitution, �� delegates sign it of the 42 present,
and the Convention formally adjourns.

June 21, 1788: The Constitution becomes effective for
the ratifying states when New hampshire is the ninth
state to ratify it.

March 4, 1789: The first Congress under the
Constitution convenes in New York City.

april 30, 1789: George Washington is inaugurated as
the first President of the United States.

June 8, 1789: James Madison introduces the proposed
Bill of Rights in the house of Representatives.

September 24, 1789: Congress establishes a Supreme
Court, 1� district courts, three ad hoc circuit courts,
and the position of Attorney General.

September 25, 1789: Congress approves 12
amendments and sends them to the states for
ratification.

february 2, 1790: The Supreme Court convenes for the
first time.

December 15, 1791: Virginia ratifies the Bill of Rights,
and 10 of the 12 proposed amendments become part
of the U.S. Constitution.

INDeX To The CoNSTITUTIoN of The
UNITeD STaTeS aND aMeNDMeNTS

Article, section Page
Admiralty & Maritime cases III,2 22
Advice and consent II,2 21
Age, as qualification for public
office
president II,1 20
representatives I,2 �
senators I,� 11
voting A26 46
Ambassadors
Case controversies III,2 2�
President’s power II,2-� 21-22
Amendment procedure V 2�
Appellate jurisdiction III,2 2�
Appointment power II,2 21
Appointments, temporary A17 40
Apportionment of representatives I,2;A14,2 �-10; �7-��
Appropriations(s) I,�,� 14, 17
Arms, right to bear A2 ��
Army II,2 21
Assembly, right of A1 ��
Authors I,� 1�
Bail, excessive A� ��
Bankruptcy, Congress’ power I,� 1�
Bill of Rights (Amends. 1-10) A1-A10 ��-��
Bills I,7 1�-14
Bills of attainder I,�-10 17
Borrowing, Congress’ power I,� 1�
Cabinet officers’ reports II,2 21
Census I,2 �-10
Chief Justice, role in
impeachment trials I,� 11
Commander in Chief II,2 21
Commerce, Congress’ power I,� 1�
Commission of officers II,3 22
Compact I,10 1�
Congress
annual meetings I,4;A20,2 12; 41
declaring war I,� 1�
legislative proceedings I,� 12-1�

�0 ��

Article, section Page
Congress—Continued
members’ compensation and
privileges I,6;A27 1�; 47
organization I,1 �
powers I,�;A12 14-16; ��-�7
special sessions II,� 21-22
Congressional Record (Journal) I,� 12-1�
Constitution, purpose Preamble �
Contracts, interference by states I,10 17-1�
Controversies, court cases III,2 22-2�
Conventions V;VII;A21 2�; 26; 4�
Copyrights & patents,
Congress’ power I,� 1�
Counsel, right to A6 �4
Counterfeiting, Congress’
power to punish I,� 1�
Courts (see Judiciary)
Criminal proceedings, rights of
accused A�;A6 �4
Currency, Congress’ power I,� 1�
Defense, Congress’ power I,� 14
District of Columbia I,�;A2� 16; 44
Double jeopardy A� �4
Due process of law A�;A14,1 �4; �7
electoral College II,1;A12;A2� 1�-1�;
��-�7; 44
equal protection of laws A14,1 �7
equity III,2;A11 22; ��
ex post facto laws I,�-10 17-1�
extradition of fugitives by states IV,2 24
Fines, excessive A� ��
Foreign affairs, President’s power II,2 21
Foreign commerce, Congress’
power I,� 1�
“Full faith and credit” clause IV,1 24
General welfare, Congress’ power I,� 14
Grand jury indictments A� �4
Grievances, redress of A1 ��
habeas corpus I,� 17
house of Representatives
election to & eligibility for I,2 �
members’ terms of office I,2;I,6 9; 13
Speaker of I,2;A24;A2�,�-4 10;
44-46

Article, section Page
house of Representatives—Continued
special powers
impeachment I,2 10
Presidential elections II,1;A12 1�-20; ��-�7
revenue bills I,7 1�
states’ representation in I,2 �-10
vacancies I,2 10
Immunities (see Privileges
and immunities)
Impeachment
officials subject to II,4 22
penalties I,� 11-12
power of, lodged in house I,2 10
reasons II,4 22
trials, Senate I,� 11
Indians, commerce with,
Congress’ power I,� 1�
Inhabitant (see Resident) I,2;I,� �; 11
International law,
Congress’ power I,� 1�
Inventors I,� 1�
Judiciary
inferior courts I,�;III,1 1�; 22
judicial review III,2 22-2�
jurisdiction III,2 22-2�
nomination & confirmation
of judges II,2 21
Supreme Court III,1 22
terms of office &
compensation III,1 22
Jury trials III,2;A6;A7 2�; �4; �4
“Lame duck” amendment A20 41
Liquor A1�;A21 40; 42
Marque and reprisal, letters of I,�,10 1�; 17
Men (see Persons)
Militia (Military) A2;A� ��; �4
congressional powers I,� 1�-16
presidential powers II,2 21
Money I,� 1�
National debt VI 2�-26
National Americans (see Indians)
Naturalization I,� 1�
Navy I,�;II,2 1�; 21
“Necessary and proper” clause I,8 16

�� ��

Article, section Page
Nominate II,2;A2� 21; 4�
Oath of office, federal and state II,1;VI 20; 26
Original jurisdiction III,2 2�
Pardons and reprieves,
President’s power II,2 21
People, powers reserved to A10 ��
Persons A14 �7-��
Petition the government, right to A1 ��
“Pocket veto” I,7 14
Poll tax, prohibition A24,1 44
Post offices & roads,
Congress’ power I,� 1�
Presidency, succession to II,1;A20;A2� 20; 41-42;
4�-46
President
disability A2�,� 4�
election II,1;A12;A22; 1�-20;
A2� ��-�7; 4�; 44
eligibility for office II,1 20
legislation, role in I,7 1�-14
oath of office II,1 20
powers & duties II,2-� 21-22
term of office & compensation II,1 18-20
Press, freedom of A1 ��
Privileges and immunities
(of citizens) IV,2;A14,1 24; �7
Prohibition A1�;A21 40; 42
Property, taking for public use A� �4
Punishments, cruel and unusual A� ��
Race A1� ��
Ratification of Constitution V;VII 25; 26
Religion, freedom of A1 ��
Religious oaths VI 26
Resident (see Inhabitant) II,1 20
Search and seizure A4 ��
Seas, Congress’ power I,� 1�
Secrecy I,� 12
Self-incrimination A� �4
Senate
election to & eligibility for I,� 11
equal representation of states V 2�
officers I,3 11
President of I,�;A12 11; �6
President of, pro tempore I,�;A2�,�-4 11; 4�-46

Article, section Page
Senate—Continued
special powers
impeachment trials I,� 11-12
Presidential appointments II,2 21
treaties II,2 21
terms of office I,3;I,6 10; 13
vacancies A17 ��-40
Slavery, prohibition A1�;A14,4 �7; ��-��
Soldiers, quartering of A� ��
Speech, freedom of A1 ��
Spending, Congress’ power I,� 14-1�
State of Union message II,� 21
States
and federal elections I,4 12
formation & admission to
Union IV,� 24-2�
powers requiring consent of
Congress I,10 17-1�
powers reserved to A10 ��
protection against invasion,
violence IV,4 2�
republican form of
government guaranteed IV,4 2�
suits against III,2;A11 22-2�; ��
Sundays I,7 14
Supreme law of the land
(Constitution) VI 26
Taxing power, in general I,7-� 1�-14
direct taxes prohibited I,� 17
income taxes permitted A16 ��
Territories IV,� 24-2�
Titles of nobility I,� 17
Treason II,4;III,� 22; 2�
Treaty(ies) I,10;II,2; 17; 21;
III,2;VI 22; 26
Trial I,�;III,2; 12; 2�;
A6;A7 �4
Veto, President’s power I,7 1�-14
Vice-Presidency, succession to A20;A2� 41-42; 4�-46
Vice-President
conditions for assuming
Presidency II,1;A20; 20; 41-42;
A2� 4�-46

�� ��

Article, section Page
Vice President—Continued
declaring President disabled,
role in A2�,4 4�-46
Senate, role in I,�;A12 11; ��-�7
term of office II,1 18
Voting rights A14;A24 �7-��; 44
blacks, former slaves A1�,1 ��
eighteen-years-old A26 46
women A1� 41
War powers (see Congress,
declaring war, powers;
President, powers & duties;
States, protection against
invasion)
Warrants A4 ��
Weights and measures
standards of I,� 1�
Women (see Persons)

“No free government, nor the blessings of

liberty, can be preserved to any people, but by…a

frequent recurrence to fundamental principles.”

— George Mason, 1776

“The people made the Constitution, and the

people can unmake it. It is the creature of their

own will, and lives only by their will.”

— John Marshall, 1821

“The happy Union of these States is a wonder;

their Constitution a miracle; their example the

hope of Liberty throughout the world.”

— James Madison, 1829

��

U.S. Citizenship and Immigration Services
would like to gratefully acknowledge the

support of the National Constitution Center
in Philadelphia, PA for their assistance in the
development of this educational product. For

more information on the National Constitution
Center and its mission, please visit

http://www.constitutioncenter.org/.

http://www.uscis.gov

• Pocket Constitution Cover
• Pocket Constitution Body

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Placing Paul Robeson in History: Understanding

His Philosophical Framework

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Journal of Black Studies
2016, Vol. 47(3) 235 –257

© The Author(s) 2016
Reprints and permissions:

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DOI: 10.1177/0021934715623533

jbs.sagepub.com

Article

Placing Paul Robeson in
History: Understanding
His Philosophical
Framework

Mark Alan Rhodes II1

Abstract
Paul Robeson is one of the greatest yet most unknown figures of the 20th century.
This article goes beyond the traditional bibliographic style of documenting
this great life, toward constructing a usable philosophical framework from it.
Utilizing Robeson’s own works, and building on the small critical literature
already in existence, I present his philosophical framework – comprised of anti-
colonialism, socialism, and human rights. I present these dense, interconnected,
and ever-expansive philosophical stances into a form of communication that
can be easily understood, evaluated, taught, and compared. Understanding the
philosophies, actions, and examples of his ideological framework will provide
the appropriate contextual background for understanding (to play off the title of
Robeson’s 1958 book, Here I Stand) where Paul Robeson philosophically stood.

Keywords
Paul Robeson, anti-colonialism, Pan-Africanism, nationalism, socialism,
human rights, education, philosophy

Introduction

Paul Robeson has been described as one of the United States’ greatest musi-
cians, scholars, athletes, actors, and activists of the 20th century.
Certainly, Paul Robeson’s fame on the football field, on the concert and
theater stage, in

1Kent State University, OH, USA

Corresponding Author:
Mark Alan Rhodes II, Department of Geography, Kent State University, 319A McGilvrey Hall,
Kent, OH 44240, USA.
Email: mrhode21@kent.edu

623533 JBSXXX10.1177/0021934715623533Journal of Black StudiesRhodes
research-article2016

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mailto:mrhode21@kent.edu

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236 Journal of Black Studies 47(3)

film, and through his own scholarship and activism reached around the world.
The blacklisting and illegal seizure of Robeson’s passport for his adamant
beliefs in anti-colonialism, socialism, and human rights ended nearly half a
century ago. However, despite a worldwide generation of commemorations,
publications, albums, films, plays, poems, and documentaries, there is still
little recognition or memory of him. Despite being little known today, Paul
Robeson expressed his philosophical beliefs throughout his life in his
research, singing, acting, athleticism, and activism. Of the many quotes
which describe Robeson’s life, struggle, and philosophy, the following state-
ment applies most to the development of a Robeson philosophical frame-
work: “[o]ne day, . . . , the example and struggle of Paul Robeson will be fully
recognized by all for what it was and is: a blueprint for human existence”
(Blockson, 1998, p. 250).

How does this “blueprint for human existence” relate to Paul Robeson’s
philosophical beliefs? How was he influenced by leading scholars, activists,
and artists, and how did his beliefs fit into larger philosophical movements?
And what evidence exemplifies Robeson’s actions as they relate to his philo-
sophical framework? Blockson uses the term “blueprint,” but a synonym that
better illustrates the complexities that are intertwined with the plurality of
Robeson’s beliefs is framework. In this article, I argue that anti-colonialism,
socialism, and human rights were the three tracts of Robeson’s framework,
though they are broad generalizations and still do not include every aspect of
Robeson. Using primary and secondary sources from P. Robeson’s time and
P. Robeson’s own writing (1958), speeches (1978), and performances, I sim-
plify these dense, interconnected, ever-expansive philosophical stances into a
form of communication that can be easily understood, evaluated, taught, and
compared. Understanding the philosophies, actions, and examples of his ide-
ological framework will provide the appropriate contextual background for
understanding where Robeson stood.

Robeson was born in 1898 in Princeton, New Jersey, to Maria and
Reverend William Robeson, an escaped slave and Union veteran. Excelling
in academics, athletics, and the arts in high school, Robeson earned a scholar-
ship to Rutgers University, where being valedictorian and selected for the
College Football All-American team in 1917 and 1918 were among his many
accomplishments. In 1923, he graduated from Columbia University with a
law degree, and while financing his education he played football professionally
and joined a theater company that traveled to Britain. Encountering the intense
racial divides that limited his ability to practice law at the level which he desired,
Robeson took his life in a more professionally artistic direction by acting in
theater, later on screen, and eventually as a musician. After moving to London
for almost a decade, he began to further his interest in ethnomusicology, African

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Rhodes 237

culture, and politics, and by the mid-1930s, Robeson had fully integrated
these interests into his art. Not long after that, Paul Robeson began to very
actively participate politically in issues of labor rights, anti-colonialism, and
human rights, specifically in such political debates as Welsh unionization,
British de-colonization, the Spanish Civil War, and ultimately the griping
violation of human rights occurring against African Americans in the United
States (P. Robeson, 1958).

Paul Robeson holds the record for the longest running Shakespeare play
on Broadway. He was a member of a championship professional football
team as well as the 1917 and 1918 All-American college football teams
(Harris, 1998). He held a key to the city of Boston, three honorary doctorates,
and a law degree from Columbia (Ramdin, 1987). In the early 1940s, Robeson
was considered one of the greatest African Americans alive, yet not 10 years
later, he was classified as one of the greatest “un-Americans.” After regaining
this respect after the McCarthy era (despite never having lost it in other parts
of the world) it would be expected that today his name would be no less com-
monplace than Martin Luther King Jr. (Naison, 1998/2002). Instead, in the
United States, commemoration of him has been severely limited.

Despite Paul Robeson being a force in intellectual circles within and out-
side of academia, the current research on Paul Robeson is relatively small.
Most common are traditional biographical sketches (e.g., Boyle & Bunie,
2001; Davis, 1998; Duberman, 1988; Goodman, 2013; Hayes, 2001;
Swindall, 2013) often originating from his friends and family (e.g., Brown,
1976; Robeson, 1930; Robeson, 1989, 1993, 2001, 2010; Seton, 1958).
Recently, critical academic analyses of Robeson (Criterion Collection, 2007;
Dorinson & Pencak, 2002; Stewart, 1998), each using a different cultural
framework (i.e., critical theater studies or critical ethnomusicology perspec-
tives), have begun to rival and question the grounds of his near mythical
standing and deepen the more traditional biographical works. The lack of
memory and limited research on Robeson has particularly led to an absence
of him within geography, my own field, with the only exceptions being slight
mentions in Jim Tyner (2006), David Featherstone (2013), and Tyner,
Kimsroy, and Sirik (2015) and Rhodes’s (2015) thesis on Robeson’s memo-
rialization in Wales.

Particularly within colonial discourses, debates on class, and discussions
of human rights, Paul Robeson can address many of the issues, which accom-
pany structural legacies and contemporary concerns. Khonsura Wilson’s
(2013) Robesonian framework revealed the power of creativity in social
activism and identity, and was truly the first attempt outside of education
(Blum, 1998, 1999, 2002, 2008; Calvin & Rogovin, 1999; Fernekes, 2004) at
developing a framework built around Paul Robeson. Wilson provides an

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238 Journal of Black Studies 47(3)

invaluable resource through the establishment of a framework for under-
standing the creative ideal, the creative agent, and creative thought in general
through Robeson’s perspective. Studies and works of performance, art, edu-
cation, and others are able to implement this framework for further integra-
tion of agency, identity, and social justice. He even posits that a “Robesonian
framework of creative themes, insights, and categories might be on the hori-
zon” (Wilson, 2013, p. 727). While this is certainly a necessary contribution
and a great leap within the scholarly work on Paul Robeson, it is slightly
putting the cart before the horse. Wilson mentions many of Robeson’s influ-
ences and theoretical perspectives, but does not lay them out as a “principle
framework” in such a way as would set up his own development of a frame-
work (Wilson, 2013, p. 726). This article sets up such an underpinning philo-
sophical framework, which not only further bolsters the themes of Wilson’s
manuscript, but adds an additional layer to the Robesonian framework.

Religious Foundations

Robeson’s philosophical developments neither occurred in a vacuum nor did
they have a specific starting point. In order to understand the influences and
actions of his later life, P. Robeson Jr. (2001) argued that Paul Robeson’s
early years, specifically the influences of his father, set the stage and influ-
enced Robeson’s philosophical development.

Paul Robeson’s father preached as a Presbyterian minister for the
Witherspoon Presbyterian Church for 20 years before 1898, when Paul
Robeson was born (Duberman, 1988, p. 6). The Presbyterian Church of the
United States of America (PCUSA) is not commonly associated with the
African American community, but by the turn of the century the Church, due
partly to its large missionary presence and the association of slave owners,
their slaves, and the Church, had a rapidly growing African American pres-
ence. Just as the PCUSA today is arguably the most liberal of the major
denominations, there was a strong movement within the Church at the end of
the 19th century to move away from its perception of being selfish and mer-
cenary. Rev. Matthew Anderson (1897) wrote that the Church must move
beyond pity and toward love and respect in order to ensure every race and
nationality their God-given rights and privileges. The Church also clarified
that financial prospects had nothing to do with their motives (though this very
clarification calls into question their motives).

Tolerance, just as today, did not thoroughly permeate the Presbyterian
Church, nor was it insusceptible to outside forces of White supremacy. Rev.
Robeson found this out in 1900 when the intolerance of Princeton, New
Jersey’s, leaders toward his sermons of social injustice forced him out of the

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Presbytery. In 1907, Rev. Robeson found a new denominational home in the
African Methodist Episcopal (AME) Zion Church and founded his new par-
ish, St. Thomas, in 1910 in Somerville, New Jersey. Less is known about the
impact of the AME Zion Church on Rev. William Robeson’s last decade of
life, though most of his convictions were said to be uncompromising. Most
importantly, the AME Zion Church would, ultimately, have a more profound
impact on Paul Robeson’s life (Duberman, 1988, p. 8). His eventual blacklist-
ing limited his concerts to Black Churches across the country in the 1950s,
and one of his greatest supporters was his brother Rev. Benjamin Robeson,
minister of an AME Zion Church in Harlem. Paul Robeson Jr. (2001) insisted
that the interactions his father had with religion (generally speaking) shaped
everything he did in life and laid the foundation for his philosophical ideas.

Anti-Colonialism

Anti-Colonialist is the first of the three philosophical components which
makes up Paul Robeson’s “blueprint of human existence,” though featured
heavily within this category is also the role of Pan-Africanism and national-
ism. The ideas of the anti-colonialist movement itself cannot be separated
from the ideas coming out of the broader human rights movements, but what
makes anti-colonialism and Pan-Africanism unique are their philosophical
worldviews and perspectives. Anti-colonialism can be seen as comprised of
first, the non-violent resistance teachings of activist Mahatma Gandhi (1965),
and, second, around those who held a more militant perspective such as revo-
lutionary scholars Frantz Fanon (1963) and Amílcar Cabral (1980). Also
included in the anti-colonial movement was the structure of Marxism.
Robeson built on and reinterpreted many of the anti-colonial discourses of
Soviet leaders Vladimir Lenin and Joseph Stalin. As Williams (2012, p. 167)
states, it was his Black nationalist philosophies in conjunction with ethnic
and cultural factors, such as folk songs, that led Robeson to believe that
Marxism and a cosmopolitan understanding of the world were the means to
end imperial control.

Robeson’s foundation for these socialist anti-colonial beliefs came first
from the Soviet constitution and later the famous African-Asian Bandung
Conference. “Article 123,” issued by the Soviet Union in the 1936
Constitution, influenced Paul Robeson greatly through the following:

Equality of rights of citizens of the U.S.S.R., irrespective of their nationality or
race, in all spheres of economic, state, cultural, social and political life, is an
indefeasible law. Any direct or indirect restriction of the rights of, or, conversely,
any establishment of direct or indirect privileges for, citizens on account of

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240 Journal of Black Studies 47(3)

their race or nationality, as well as any advocacy of racial or national
exclusiveness or hatred and contempt, is punishable by law. (Union of Soviet
Socialist Republics, 1936)

While controversial, because of the issues occurring in the Soviet Union at
the time, Robeson developed his understanding of the Soviet Union from the
perspective of their political propaganda. This combined with Robeson’s
first-hand experiences of racial freedom and tolerance in the Soviet Union
and led Robeson, until he became aware of the discrimination that was
covertly occurring, to be one of the Soviet Union’s most vocal supporters
(P. Robeson, 1958).

These ideas manifested at the 1955 Bandung Conference, to which
Robeson remotely contributed, and in the Ten Principals of Bandung. He
forever cited the Principals in reference to his opinion on international affairs
and an example of countries with colonial legacies coming together in an
effort to form an economic and political block to imperial exploitation.

1. Respect for fundamental human rights and for the purposes and prin-
ciples of the charter of the United Nations.

2. Respect for the sovereignty and territorial integrity of all nations.
3. Recognition of the equality of all races and of the equality of all

nations large and small.
4. Abstention from intervention or interference in the internal affairs of

another country.
5. Respect for the right of each nation to defend itself singly or collec-

tively, in conformity with the Charter of the United Nations.
6. (a) Abstention from the use of arrangements of collective defense

to serve the particular interests of any of the big powers.
(b) Abstention by any country from exerting pressures on other

countries.
7. Refraining from acts or threats of aggression or the use of force

against the territorial integrity of political independence of any
country.

8. Settlement of all international disputes by peaceful means, such as
negotiations, conciliation, arbitration, or judicial settlement as well as
other peaceful means of the parties’ own choice, in conformity with
the charter of the United Nations.

9. Promotion of mutual interests and cooperation.
10. Respect for justice and international obligation. (P. Robeson, 1958,

pp. 46-47)

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Robeson also played a major role within British politics promoting the
British Labour and Communist Parties’ agenda of de-colonization, especially
concerning India. Joining forces with the British politician Sir. Stafford
Cripps, British MP Shapurji Saklatvala, and other leaders, he was brought
into the House of Commons on more than one occasion to be asked his opin-
ion on his ideas of race, colonialism, and “third world” cultures (Duberman,
1988, p. 213).

One of the few debates concerning Robeson relates to his relationship to
colonialism. Unfortunately, his role in many British films indubitably served
as propaganda for British colonialism. The three sides to the debate are first,
that he was making a living while opening up the possibility for Blacks to
obtain major roles in future films (Ellrod, 1997). The second is that he was
coerced into creating each movie and then later manipulated through the edit-
ing process (P. Robeson, 2001). The third admits that he was used and or
agreed to the British colonial propaganda; however, in each part he played he
progressively exerted his own agency, representing African people and cul-
ture in a way that, while still being manipulated, was still radically different
from mainstream film (Musser, 1998, 2007).

Within the anti-colonialist movement, many other leaders also happened
to be friends of and influences to Paul Robeson. Saklatvala, Indian Prime
Minister Jawaharlal Nehru (1964), Cripps, and journalist George Padmore
were all involved in the very political debate of British de-colonization; keep-
ing in mind the continued influence of Marxism on Robeson, and his belief
that a similar system to “Article 123” of the Soviet Union 1936 Constitution,
which on paper granted, under penalty of law, complete equality to all citi-
zens, was seen as a possible solution to colonialism.

Saklatvala, an Indian, was the third Asian MP in the United Kingdom, and
was a prominent figure in both the Communist Party and in the Indian Home
Rule League. One of his most prominent identifiers was the public polarity
expressed between himself and Gandhi. Both supporting humanitarian and
independent goals for India, Saklatvala’s industrialized communism chal-
lenged Gandhi’s ideas of communal cottage capitalism (or vice versa).
Despite geographical irony that Gandhi was a political power in India while
Saklatvala was an Indian political power in Britain, Gandhi refused a national
rebellion while Saklatvala called for India to act in 1927 after he was influ-
enced by colonial Ireland (Saklatvala & Gandhi, 1927).

One of the most influential figures in British politics which also influ-
enced Robeson was Cripps (1946). Cripps did not necessarily wish to change
colonialism (as he defined it); what he desired was a strong and powerful
commonwealth of equally free, understood, and respected nations, with
Britain sitting no higher politically, economically, or socially than any other

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242 Journal of Black Studies 47(3)

member. This idea of nationalism without inequality is clearly expressed in
Robeson’s music. Not only does Robeson sing the national and nationalist
anthems of many countries (e.g., China, the Soviet Union, the United States,
Russia, Poland, Ireland, Scotland, and Wales), but specifically within his ren-
dition of composer Ludwig van Beethoven and poet Friedrich Schiller’s “All
Men are Brothers.” The lyrics of the song, “[b]rothers, sing your county’s
anthem; Shout your land’s undying fame; . . . Raise on high your country’s
sign; . . . Brothers, lift your flag with mine,” reflect this nationalist aspect of
Robeson’s anti-colonialist philosophy (P. Robeson & Booth, 2013).

Last, anti-colonialism includes many of the leaders of the Pan-African
movement. Pan-Africanism also focused on fighting for national and ethnic
sovereignty and against imperialism, but specifically, African freedom was
fought for because of its overall diasporic effect and the interconnectedness
of all Africans (P. Robeson, 1978, p. 88).

Paul Robeson’s role in Pan-Africanism and his identity as African began
in the 1930s as he expanded his work as an ethnomusicologist. In 1933, he
enrolled in the School of Oriental and African Studies (SOAS) at London
University where he began research into African languages and folk music. It
was through his involvements with the school that he became involved with,
and an honorary member of, the West African Students Union (WASU; P.
Robeson, 1958, p. 32). During this time, his political ideas evolved from “I’m
an artist. I don’t understand politics” in 1931 (Ramdin, 1987, p. 75) to his
famous 1937 speech “[t]he artist must take sides. He must elect to fight for
freedom or for slavery. I have made my choice. I had no alternative” (P.
Robeson, 1978, p. 119).

This swift shift in philosophy can in no small part be contributed to his
ongoing contact and friendship of the members of the WASU: Jomo Kenyatta,
Nnamdi Azikiwe, Cyril Lionel Robert James and one of their mentors Du
Bois (Swindall, 2013, p. 67). The WASU was mostly comprised of male stu-
dents from wealthy West African families in British colonies who were con-
cerned about continued colonial rule (Given, 1989). Kenyatta is a great
example. While he fought for freedom from colonial oppression for Kenya
(which he eventually helped achieve and became the independent state’s first
president) and other African nations, he also had prolonged interactions with
Padmore (1937) and Gandhi, who were both involved in the broader concept
of Anti-colonialism (Jomo Kenyatta, 2014). This overlapping of influences
and philosophies, from Robeson, Kenyatta, Du Bois, Gandhi, and Padmore,
is just one example to the intricacy of the layering of Robeson’s ideology.

Azikiwe was another major influence on Paul Robeson’s African thoughts.
Just as he mentored Kwame Nkrumah, who later became the first president of
Ghana, the first “post”-colonial African country, Azikiwe influenced Robeson

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during their interactions in London. Azikiwe used his expertise in political
science and journalism to decolonize Nigeria and become its first president in
1963. Interestingly, he attended and taught at Lincoln University (where
Robeson coached football) and attended Columbia University (where
Robeson earned his law degree). It would be hard to argue that Azikiwe’s
time at Lincoln and Columbia did not involve philosophical transfer of civil
rights ideologies which would then add to his overall stance in Pan-Africanism
and reciprocation between Robeson and himself (French, 1996).

To best understand where Paul Robeson fits into the movement of the
1930s, 1940s, 1950s, and 1960s, analyzing the writings of the leaders of the
movement, which Robeson would have read and influenced, sets the stage.
Cabral, Fanon, and Julius Nyerere are all considered leaders of Pan-African
thought during the time of Paul Robeson. Nyerere (1968) was a teacher-
turned-politician who fought for the independence of Tanzania and became
its first president. Despite controversial practices of his government, Nyerere
was a leading example of African socialism and independence who hosted
and supported the South African-based African National Congress and the
continental Pan-African Congress. Fanon fought for Algerian independence,
while exposing the ontology of the colonized through his writing and psychi-
atric work (Emory University, 2014). Fanon, much like Du Bois, revealed
that the colonized have ontologies imposed on them through means such as
language, religion, and other cultural and racial values (Peterson, 2007, p.
24). It is in Fanon’s (1963) The Wretched of the Earth that he argues that the
only cure for this is the violent destruction of race as a social construct, a true
and encompassing revolution (P. Robeson, 2008). Cabral (1980) was born in
Guinea Bissau but grew up in and is recognized for his work in Cabo Verde
as an agronomist and struggle for the de-colonization of Portuguese colonies.
Like Fanon, he did not shy away from a militant response to colonialism;
however, he did not believe militancy was inevitable. He instead championed
the idea of cultural resistance and the role it ultimately plays in breaking
down colonial rule. The work and philosophies of these individuals parallels
that of Paul Robeson throughout his struggle for African freedom.

Robeson fully believed African Americans in the United States could not
be free until all African people around the world were free. In Here I Stand P.
Robeson (1958, p. 64) wrote, “[c]an we oppose White Supremacy in South
Carolina and not oppose the same vicious system in South Africa?” As you
will see in all of Paul Robeson’s philosophies, humanitarianism and the one-
ness of humankind are constantly present.

While Robeson did act and perform art from African cultures, his most
affecting contributions toward the Pan-African movement were through his
speeches and his work with the Council on African Affairs (CAA).1 Even

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244 Journal of Black Studies 47(3)

before he founded the CAA, P. Robeson (1978, pp. 88-104) was vocal about
the importance of an African nationality, the ceasing of European interven-
tion in Africa, and the concept that colonialism was rooted in race. He argued,
long before biology had proven so, that race was not a physical thing. Rather,
it is a social construct for the means of economic exploitation.

Once the CAA was founded, Robeson found a national and international
platform beyond his own stages and personal speeches, which he used to
combat colonialism and racism in Africa. There was certainly a trend from
the early 1940s, when P. Robeson (1978, pp. 158, 193) decided that the world
must act, to the realization that the world was not acting in the late 1940s and
the necessity of African countries to achieve freedom for themselves. Through
the CAA, he appealed to President Franklin Delano Roosevelt, President
Harry Truman, and the United Nations on numerous occasions, both raising
awareness of and concerning the Fascist-like states of South Africa and
Kenya and calling the United States and the World into action. “ACTION
NOW,” is what P. Robeson (1978, p. 164) wrote in a joint U.S.-United
Nations address in 1946: “WILL AMERICA HELP FREE AFRICA? . . .
AMERICA MUST ANSWER!” When no answer came, or at least no answer
that Robeson agreed with, there was a definite shift in his philosophy, as evi-
denced in his speeches. Paul Robeson (1978, pp. 193-194 & 307-317) was
becoming more militant and supportive of militant protest in places such as
Kenya and South Africa. In 1949, he stated that there will be no tolerance and
no compromise, “racism must be destroyed” (P. Robeson, 1978, p. 194). Just
as Du Bois, Robeson saw the connections between slavery and racism. In
referring to the Union of South Africa, he said, “[o] my brothers and sisters
of the two USA’s – we are going to be free!” (P. Robeson, 1978, p. 325). Not
only did he see freedom in Africa as freedom for African Americans, he was
willing to lead the African American charge to “pry loose” the chokehold
colonialism and Fascism held on the continent (P. Robeson, 1978, p. 351).

So, it is clear that Robeson was influenced by some of the greatest anti-
colonial and Pan-African leaders and activists of the twentieth century. His hon-
ors themselves speak to his involvement in the movements, from being invited by
Nkrumah to teach for the Institute of African Studies at the University of Ghana,
to an award from the United Nations in 1978 for his contributions toward the
international fight against apartheid, and his 1950 Nigerian “Champion of
Freedom” award (Hunton, 1958, p. 117; O’Malley, 1978; Ramdin, 1987, p. 196).

Socialism

This Anglo-directed anti-colonial philosophy transitions nicely into Paul
Robeson’s Anglo-originating socialist ideology. Robeson’s philosophies on

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Rhodes 245

the global labor movement are quite possibly the most difficult to contextual-
ize of his three philosophies. For the benefit of relative simplicity, emphasis
will be on socialism in the United States and the United Kingdom including
the Soviet influences to each of these areas. Philip Foner (1967, 1991), a
leading labor historian, provided a good consensus of the dominance in the
United States’ labor movement of trade unions, as opposed to government
organizations. The exception to this concept would be President F. D.
Roosevelt’s (1947) New Deal. Quite differently, in the United Kingdom the
labor movement was propelled by party organization. It was then, through the
many socialist parties, especially the leading Communist and Labour Parties,
that unions were able to gain traction (CP, 2015; Labour, 2015).

Most of Robeson’s influences came from leading labor activists in Britain.
While in London, he had many discussions on Marx, socialism, and labor
with such individuals as writer Herbert George Wells, poet Langston Hughes,
Cripps, and Nyerere. Cripps and Nyerere highlight the intersection of anti-
colonial and Pan-Africanism, respectfully, with socialism. Cripps (1946), a
leading figure in the history of the Labour Party was an advocate for a curtail-
ing of private industry and property and increasing jobs, pay, conditions, and
benefits. Many of Nyerere’s (1968) beliefs on labor were later published in
his government’s programs. The Tanganyika African National Union (TANU)
Creed and the broader Arusha Declaration state that all citizens deserve equal
pay, there must be an absence of exploitation, workers should own the means
of production, a democratic government is necessary, and socialism must be
a belief system. This last point clearly connects with Robeson. They both
believed people cannot simply put in place a socialist political or economic
system. It must be accompanied by a fundamental revolution of principal,
where people live the ideals of socialism and are not simply dictated by them
(Nyerere, 1968; P. Robeson, 1958).

Robeson’s labor ideas, to a greater extent than his other ideologies, evolved
throughout his life with his experiences. As he traveled to the Soviet Union,
other nations of the British Isles, and eventually back to the United States, his
writing reflected a changing opinion of the role labor rights and socialism
should have on the world (Horne, 1998).

Museum curator Charles Wright (1975) provided the best synopsis of
Robeson’s worldwide contribution to the international labor movement.
From advocacy in and of the Welsh mines, to his support of the India League,
to his presence on the front lines of the Spanish Civil War, to his singing of
“Joe Hill” all across the United States in union halls and public and state
venues (P. Robeson, 2013a), Robeson championed the ideas of scientific
socialism. Wright, of course, is not the only writer of Robeson’s labor
involvement. Singer Pete Seeger (2007) and historian Joseph Walwik (2002)

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also discussed Robeson through the Peekskill Riots, historian Ron Verzuh
(2012) spoke of his Peace Arch Concerts, and Robeson’s own work through
music (P. Robeson, 2013b) and film (Hurwitz & Strand, 1942; Tennyson,
1940) represents his role in the worldwide struggle for labor rights and ideas
of socialism.2

Wright’s (1975) book, Robeson, Labor’s Forgotten Champion, speaks not
only to Robeson’s contribution to labor, but also the lack of memory of him
in 1975 which continues today. He identifies the different unions Robeson
supported and sometimes helped organize: The International Longshoremen’s
and Warehousemen’s Union, the Tobacco Workers of North Carolina, the
National Maritime Union, the United Public Workers’ Union, the United
Automobile Workers, the National Negro Labor Council, the South Wales
Miners’ Union, and many more to lesser extents. In addition to his union
activity, he then linked this activity to his geography. Wales, Scotland,
Manchester, England, and Hawaii all receive special attention by Wright, as
they all received special attention by Robeson as pivotal centers of interna-
tional commerce and thus centers of labor movements.

Peekskill, New York, is also discussed by Wright, but other scholars have
also paid special attention to the riots at Peekskill which served as the turning
point in Paul Robeson’s national reception (e.g., Fast, 2002). Recently passed,
legendary folk singer, Pete Seeger sang at the concert at Peekskill, and it was
his organization, Peoples Artists Inc., that helped sponsor the 1949 concerts.
With an audience composed mostly of union supporters, some men sur-
rounded Robeson on his concert platform, while others created a periphery to
protect the concert-goers from the ever raucous protesters. The violence
occurred after the concert when, as the cars and people were leaving, thou-
sands of rocks were thrown while the police who had been containing the
protestors either did nothing, or contributed to the violence (Wright, 1975, p.
123). Robeson’s response to the violence is also just as important. He asked
where the next Peekskill would be and how much further will the racists and
those who wish to exploit the common worker go in their violence? Again,
Robeson’s philosophies blur, as the riots at Peekskill were as much racially
charged as they were politically, and Robeson used the event in further dis-
cussion of both socialism and human rights. Wright (1975, pp. 127-128)
ended by quoting Robeson, “[l]et them continue . . . It [Robeson’s voice] will
be heard above the screams of the intolerant.”

The Secretary of State under President Truman, Dean Acheson, revoked
Paul Robeson’s passport that year. The blacklisting period had begun, and for
the next decade Robeson had to rely, with the exception of the Black Church,
on trade unions and universities for his support. That, however, did not dimin-
ish his returned support of labor rights. Together, Robeson and unions across

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the globe waged “war” (as Harvey Murphy of the Mine Mill and Smelters
Union of British Columbia put it) against the U.S. government. Murphy’s
union invited Robeson to Canada in 1951 and despite not needing a passport
to cross the border, the U.S. Border Patrol was under executive order to deny
Robeson passage. In 1952, and for the next 2 years, Robeson went back to the
Canadian border and held a concert at the Peace Arch in Blain, Washington,
first of all in protest of his own denied freedoms, but also in support of the
international labor movement and the freedom for all people (Verzuh, 2012).

Paul Robeson’s other expression of his pro-labor ideas became manifest in
his art. Unity Theater, which he founded in London, is one such example.
Unity Theater provided a stage for actors to perform works which they had
written and were accepted by the common people of Britain, somewhat like
a working actors union. Robeson also made sure that many of his concerts
were accessible to all. Especially as he toured the British Isles outside of
London and areas of the Caribbean and Central America, he charged as little
as one dollar or pound for entry. Of course, his art itself acts as a testament to
the struggles of labor (Duberman, 1988). The song “Joe Hill” describes the
martyrdom of a union leader in Utah (P. Robeson, 2013a). The film The
Proud Valley is now a Welsh national symbol for its depiction of miners in
Wales and their fight for labor rights (Musser, 2007; Tennyson, 1949). The
documentary Native Land highlights the many injustices which occurred in
the United States against unions in the 1940s (Hurwitz & Strand, 1942). Paul
Robeson (1978, p. 119) stated the artist must elect to fight for freedom or for
slavery. He made his choice. He had no alternative.

Human Rights

The third philosophy of Paul Robeson was his involvement and influence in
the civil rights movement and more broadly his constant struggle towards the
universal equality of human rights. More so than his other philosophies, there
is little separation between his influences and the leaders of the human rights
movement than those of the anti-colonialist and socialist movements, at least
in the early twentieth century when his conceptualization of human rights
developed. With statesman Frederick Douglass (1945) as the backdrop, politi-
cal activists Booker T. Washington, Marcus Garvey, and Du Bois (1970, 1993,
2007; Balaji, 2007) were the most influential individuals to Robeson and,
within the human and civil rights movements, are often viewed in polarities.

Paul Robeson’s acting actually led to a public vilification of him by
Garvey. Garvey’s separatist (Pan-African Nationalist) beliefs found their way
into Robeson’s theories on civil rights, but they did not stop Robeson from
accepting a handful of roles, which Garvey saw as a disgrace to Robeson and

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248 Journal of Black Studies 47(3)

all Black people. Robeson, however, did not agree with Garvey’s ideas on
race or repatriation. P. Robeson (1978, p. 104) firmly believed that race was
a social construct and laughed at the idea of Black Nationalism destroying the
White civilization. He also was firmly against leaving the United States.
When asked by Pennsylvania Democrat Chairman Francis Walter of the
House Un-American Activities Committee why he did not stay in Russia, P.
Robeson (1978, p. 427) replied,

[b]ecause my father was a slave, and my people died to build this country, and
I am going to stay here and have a part of it just like you. And no Fascist-
minded people will drive me from it. Is that clear?

Washington’s ideas of cultural assimilation, a strong education and, for
those who were able, a responsibility to utilize their skills in whatever way
was acceptable to mainstream culture are evident in Paul Robeson’s early
life. Robeson even mentions Washington as he writes about his early educa-
tional experience and how much he respected Washington (Hayes, 2001).
Robeson’s early acting career reflected this. While these two figures were in
stark ideological contestation between separatist and assimilationist ideals,
Robeson mainly from his father’s teaching of subtlety, balanced the two
(Duberman, 1988, p. 15). Chambers (2006) however, argues that P. Robeson’s
(1958) autobiography served as a breaking point with his father’s more
Washington-influenced philosophies. Overall, while these two ideologies
conflicted as far as Robeson’s human rights philosophies are concerned, the
stress on integrated education and a Pan-African Nationalist approach to cul-
tural and political distinction were balanced through an air of respect and
tolerance.

Douglas and Du Bois were the most influential to Robeson and Robeson,
in turn, was most similar to them. Both were scholars, statesmen, and activ-
ists, and both discussed race as a social construct. Douglas said “[w]e are then
a persecuted people; not because we are colored, but simply because that
color has for a series of years been coupled in the public mind with the deg-
radation of slavery and servitude” (Goldfield, 1997, p. 92). Beyond simply
being influenced by Du Bois, Robeson and Du Bois became great friends as
they grew older. Both were highly educated, part of the WASU in London
(Carew, 2004), and friends with Nkrumah and fought for an independent
Ghana and African de-colonization in general. Du Bois earned the Lenin
Peace Prize, while Robeson earned the Stalin Peace Prize. Du Bois served on
Robeson’s CAA, and both were ultimately vilified and condemned by the
U.S. government; Robeson was forbidden to leave and Du Bois was forbid-
den to enter (P. Robeson, 1958).

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Rhodes 249

Robeson’s role in the human rights movement is often cited as paving the
way for his predecessors such as singer Harry Belefonte, boxer Muhammad
Ali, and activists Malcolm X and Martin Luther King Jr. (Nazel, 1980).
Robeson set the example for African Americans in sports and campaigned for
their continued integration (Dorinson, 2002a, 2002b, 2002c). He broke the
stereotype of the Black actor on stage (Baraka, 1998; Duberman, 1998). He
was the first to program Negro music as concert music (McGinty & Shirley,
1998; Pencak, 2002). After a long struggle with stereotypes in film, he walked
out on Hollywood (Als, 2007). On the political stage Robeson, again using
the CAA and his own influence, fought for outlawing lynching and Jim Crow
throughout the United States, all the while attempting to unite, arouse, and lift
off the inferiority complex he perceived of many African Americans (Bell,
1998; Perucci, 2004, 2009).

During Paul Robeson’s time in high school and at Rutgers, he broke
through every racial barrier in athletics which was presented to him. He
became the first African American to play for Rutgers, coached football for 1
year at Lincoln University, and then played professionally for 3 years with
the Hammond Pros, the Akron Pros (who were the championship team the
year prior), and the Milwaukee Badgers (Harris, 1998). P. Robeson (1978, p.
151) carried this support of desegregated sports throughout his life and was
part of the committee who met with Major League Baseball to put an end to
prohibiting Black players (Dorinson, 2002b).

On the stage and screen, Robeson fought another battle against the use of
his body in a way which played into the established “norms” of a Black actor
or a Black man in general. The 1937 film Jericho is an example where he
only signed on to act in the film after he was guaranteed editing control. His
roles in Othello and All God’s Chillun Got Wings, where he co-starred with a
White woman as his partner, also broke down color barriers in the United
Kingdom, but especially in the United States. This exertion of power, first,
created movies that for the first time did not have racist overtones, and sec-
ond, paved the way for other Black actors to hold dignified positions
(Criterion Collection, 2007).

In the same manner as his acting, Robeson lifted African American music
above its perceived level to the concert stage. He was the first concert singer to
hold an event where only African American music was programmed. This rep-
resents Robeson’s idea of the validity of the African American culture and his
agreement with Garvey that assimilation should not be the only solution to the
many problems facing African Americans in the United States (Pencak, 2002).

Within politics and the legal issues facing the human rights movement,
Paul Robeson played a major, and often underappreciated or contested, role.
Paul Robeson founded the CAA, was on the Civil Rights Congress, led a

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250 Journal of Black Studies 47(3)

march on Washington against lynching, and spoke in almost every state on
the horrible discrimination of Jim Crow Laws (Duberman, 1988).

To this day, debate continues as to why Robeson was blacklisted and his
passport revoked. Officially, it was caused by his support of African indepen-
dence movements. Another perspective cites his ties with the Soviet Union
and communism. The final opinion offered is that Robeson was detained
because, as he traveled around the world, he spoke out against the humanitar-
ian violations and racism in the United States. He chose to fight for freedom
and so they revoked his passport, but his voice and body shattered that barrier
(Beeching, 2002; P. Robeson, 1978). Today Robeson’s body and voice con-
tinue to represent values of the civil rights movement, represented here by the
words of the late former Poet Laureate of New Jersey, Amiri Baraka:

That’s why these revolutionaries still give us strength every day,
That’s why the fools and racists can’t make them fade away,
Two great beings of fire and light,
Two great figures who can make day out of night,
And the huge constellation called Paul Robeson has returned once
again,
His century of revolutionary struggle will guide without end,
Paul the artist,
Paul the actor,
Paul the scholar,
Paul the fighter,
All combined so that he was the tallest of men. (Baraka, 2006)

Conclusion

In the end, whether he was fighting against colonialism, racism, or capital-
ism, Paul Robeson was fighting Fascism. Just as he often replied to the ques-
tion of his political stance, he was a staunch Ant-Fascist. He was on the front
lines during the Spanish Civil War. He shook his finger in President Truman’s
face and threatened possible violent action after being told lynching was not
a national concern. Robeson marched with thousands of Welsh miners, lead-
ing them in song, through the streets of London in protest of labor exploita-
tion. His life went from that of vocal expression to that of physical protest
despite the strongest attempts by the U.S. government to silence him. They
never did, but 25 years of blacklisting have left a scar on the memorial land-
scape of Paul Robeson.

However, his involvement internationally was not expunged from all land-
scapes and there are isolated pockets throughout the United States and greater

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Rhodes 251

pockets of popular memory throughout the world, such as Wales (Dobbs &
Cope, 2001a, 2001b, 2002a, 2002b, 2003a, 2003b; Rhodes, 2015; Williams,
2012), Canada (MacDowell, 2003; Verzuh, 2012), and Germany (Carmody,
2014). It is through these locations where connections can be drawn to under-
stand how well the aforementioned philosophies have been represented.
Furthermore, there may be intricate political, cultural, and historical implica-
tions which may arise and can be identified from an incomplete representa-
tion. It is vital that humanity remembers Paul Robeson, and not that he was
just a singer or an actor. He was an anti-colonialist, a socialist, and a human
rights leader, and this memory of Paul Robeson holds the potential to contrib-
ute a philosophical blueprint of human existence to the world.

Acknowledgements

The author thanks George Garrison above all for his continued support and constructive
criticism of this work as it has progressed over time. The author also thanks the two
anonymous reviewers and Chris Post, Jim Tyner, Tayo Aluko, Daniel Williams, Mark
Rogovin, Sian Williams, Hywel Francis, Greg Cullen, Amanda Rogers, Pyrs Gruffudd,
Sterling Stuckey, and Gareth Hoskins for their incredible contributions to his own abil-
ity to wrap his mind around such a broad philosophical discourse as Robeson’s.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publica-
tion of this article.

Notes

1. Throughout his life, Robeson’s opinions on his film acting career evolved, but
to others, such as his close friend Du Bois (as cited in Reid, 1998, p. 175), this
was a representation of double consciousness, or “ . . . two warring ideals in one
dark body . . .” As Reid (1998, p. 168), states in his chapter, “Race, Working-
Class Consciousness, and Dreaming in Africa: Song of Freedom and Jericho,”
Robeson’s work in many of his films embodied the marriage of Pan-Africanism
and benevolent colonialism.

2. This recording, and these two films, represent only a fraction of Robeson’s
greater artistic legacy. Overall, however, most films Robeson produced he later
denounced, along with some of his recordings. In light of this, and the complica-
tions which arise from deeply interpreting film and music, I have chosen to focus
primarily on Paul Robeson’s writings and speeches, many of which reference his
art, where he provided his own interpretations and perspectives.

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252 Journal of Black Studies 47(3)

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Wright, C. (1975). Robeson: Labor’s forgotten champion. Detroit, MI: Balamp.

Author Biography

Mark Alan Rhodes II is a PhD student in the Department of Geography at Kent State
University whose research has focused on the role of Paul Robeson in Wales and
continues through the veins of memory, performance, and music.

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No. 13

2

March 2000

From Reconstruction to
Deconstruction: Undermining
Black Landownership, Political
Independence, and Community

through Partition Sales of
Tenancies in Common

Thomas W. Mitchell

FROM RECONSTRUCTION TO DECONSTRUCTION:

UNDERMINING BLACK LANDOWNERSHIP,
POLITICAL INDEPENDENCE, AND COMMUNITY

THROUGH PARTITION SALES OF
TENANCIES IN COMMON

by

Thomas W. Mitchell

All views, interpretations, recommendations, and conclusions expressed in this
paper are those of the author and not necessarily those of the supporting or
cooperating institutions.

LTC Research Paper 132 Land Tenure Center
University of Wisconsin–Madison

March 2000

ii

Copyright © 2000 by Thomas W. Mitchell. All
rights reserved.

Readers may make verbatim copies of this
document for noncommercial purposes by any
means, provided that this copyright notice
appears on all such copies.

ISBN: 0-934519-81-1

iii

TABLE OF CONTENTS

Introduction 1

1. Partition sales of black-owned land: How the rules of tenancies in common and
patterns of family wealth transmission contribute to land loss in rural, African American
communities

9

1.1 Tenancies in common

10

1.2 Patterns of family wealth transmission amongst poor, rural African Americans contribute

to the fractionation of interests and make much black-owned land a target for land
speculators 1

3

2. African American land imperative and historical factors contributing to land loss

19

3. Political and property theory together with comparative studies supports the view that
land can provide the basis for community and ground greater democratic participation 2

7

3.1 Visions of participatory democracy in a racially mixed society

27

3.2 Landownership in a participatory democracy

29

4. Legal acknowledgment of the link between land and community 3

8

4.1 Modern federal Indian policy recognizes that Indian landownership promotes Indian
culture and community, despite the federal judiciary’s tepid vindication of this policy

38

4.2 In takings jurisprudence, judges do not consider the importance land may have for
minority communities in considering condemnation 4

4

5. Proposal

52

5.1 Land consolidation

53

5.2 Allow either a majority or a supermajority of those holding common tenancy interests to

restructure as a limited liability company

57

5.3 States should establish land consolidation courts to aid rural property owners locked in

inefficient patterns of ownership and improve the productivity of the land base

61

5.4 Restoration of land the USDA foreclosed upon or provision of alternative, in lieu land

64

5.5 Legal services attorneys with specialized training should be hired to provide assistance

to heir property owners 6

5

5.6 Placing into trust African American heritage land 6

6

CONCLUSION 67

FROM RECONSTRUCTION TO DECONSTRUCTION:
UNDERMINING BLACK LANDOWNERSHIP, POLITICAL INDEPENDENCE,

AND COMMUNITY THROUGH PARTITION SALES OF
TENANCIES IN COMMON1

by

Thomas W. Mitchell2

INTRODUCTION

Forty acres and a mule. The government broke that promise to African American farmers.
Over one hundred years later, the USDA broke its promise to Mr. James Beverly. It
promised him a loan to build farrowing houses so that he could breed hogs. Because he was
African American, he never received that loan. He lost his farm because of the loan that
never was. Nothing can completely undo the discrimination of the past or restore lost land
or lost opportunities to Mr. Beverly. . . .3

The story of the federal government’s failure to deliver “forty acres and a mule” to freed slaves
after the Civil War has long been a part of African American folklore. This history has now been
highlighted in an opinion by a federal judge in the landmark settlement of the class action lawsuit
filed by black farmers against the United States Department of Agriculture (“the USDA”). The
history of those individual African Americans who purchased land in states throughout the South
following emancipation, however, remains largely unknown and uncelebrated. In total, this group
acquired approximately 15 million acres of land in the region in the 50 years following the Civil
War. As much as any group of Americans in this nation’s history, these landowners embraced the
republican ideal of the rural smallhold and widely distributed ownership, and believed that only
through such ownership could real economic and political independence be achieved.4

1 Revised version of a thesis submitted in partial fulfillment of the requirements for the degree of Master of Laws

(LL.M.) at the University of Wisconsin Law School, 1999.
2 Thomas Mitchell, Assistant Dean, University of Wisconsin Law School, supervises the Summer Extern Program,

a clinical externship run jointly by the Land Tenure Center and the Law School, both at the University of Wisconsin–
Madison. He will join the University of Wisconsin Law School faculty as an assistant professor beginning in August
2000.

3 Pigford v. Glickman, 185 F.R.D. 82, 112 (D.D.C. 1999).
4 ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877 109 (1988).

2

Unlike the large numbers of poor white men who were able to acquire land from the public
domain under federal homestead laws in the late 1800s, African Americans who acquired land did
so mostly by private market purchases, often in the teeth of threatened violence, limited access to
credit, and overt discrimination.5 The new group of black landowners who purchased rural land
between 1865 and 1910 generally became owner-operators of farms; consequently, the high-water
mark for black landownership strongly correlates with the high-water mark for the number of
black farmers in the South. By 1920, there were more than 925,000 black farmers in the United
States and one in four black farmers owned the land. Almost all of these black owner-operators
lived in the South.

With the new millennium just on the horizon, the pattern of landownership in the rural African
American community represents the mirror opposite of the trend in black land acquisition100 years
ago at the dawn of the twentieth century. Remarkable levels of acquisition have been replaced by
extraordinary levels of land loss in the past half-century or so. Today, African American farm
owner-operators— whether full- or part-owners— own little more than 2 million acres of land in
the United States.6 In part this is a trend amongst small farmers of all races and in every region.
The number of small farmers and the acreage under ownership by small farmers have declined
significantly in recent times. Yet land loss in rural African American communities far exceeds
farmland lost by white farmers.7 Even American Indian landowners— a group whose current land
base represents but a fraction of its ancestral landholdings— have fared better than rural African
American landowners over the past 50 to 60 years.8

5 Id. at 376, 403–4; see also LOREN SCHWENINGER, BLACK PROPERTY OWNERS IN THE SOUTH: 1790–1915 145–

6, 148, 151–2 (1990).
6 1 BUREAU OF THE CENSUS, DEP’T OF AGRIC., 1997 CENSUS OF AGRICULTURE, PART 51, UNITED STATES

SUMMARY AND STATE DATA 25 (1997) [hereinafter 1997 CENSUS OF AGRICULTURE]. The 1997 census reveals that the
11,192 black, full-farm owners owned 1, 095,093 acres of land and the 5,368 black, part-owners owned 1,068,343 acres
of land. In addition to these owners, an additional 1,891 tenant farmers rented 221,432 acres of land.

7 The Minority Farmer: A Disappearing American Resource; Has the Farmers Home Administration Been the
Primary Catalyst?, H.R. REP. NO. 101-984, at 5 (1990) (noting that the difference in the rate of land loss in the 1950s
between the rural, black community with a 51.3 percent rate of loss and the rate of rural, white land loss which stood at
28.8 percent has been steadily growing) [hereinafter The Minority Farmer: A Disappearing American Resource]; see
also Decline of Minority Farming in the United States: Hearing Before the Government Information, Justice, and
Agriculture Subcomm. of the House Comm. On Gov’t Operations, 101st Cong. 26 (July 25, 1990) (testimony of David
H. Harris, Jr., of the Land Loss Prevention Project) [hereinafter Decline of Minority Farming in the United States].

8 In fact, since the Indian Reorganization Act of 1934, the American Indian land base held in trust by the federal
government for both Indian tribes and individual American Indians has appeared to increase if one compares the number
of acres held in trust in 1934 with the number of acres the Bureau of Indian Affairs reports that are currently held in trust
for Indian tribes and individual American Indians. In 1934, the federal government held 48 million acres of land in trust
for Indians. See ROBERT N. CLINTON ET AL., AMERICAN INDIAN LAW 152 (3rd ed. 1991). At the end of 1997, the Bureau
of Indian Affairs reported that nearly 56 million acres were held in trust for both tribes and individual American Indians.
BUREAU OF INDIAN AFFAIRS, U.S. DEP’T OF INTERIOR, 1997 ANNUAL REPORT OF INDIAN LANDS, FORM 5-5425,
(the ANNUAL REPORT OF INDIAN LANDS was last officially published by the
Bureau of Indian Affairs in September 1985). According to the 1997 annual report, the most recent such report, the
Bureau of Indian Affairs holds in trust 45,678,161 acres of land for Indian tribes and an additional 10,059,291 acres for
individual Indians.

3

Even the USDA has acknowledged that for many farmers, “especially minority and limited-
resource farmers,” land loss has been involuntary.9 Such involuntary land loss extends to rural,
black landowners generally. This paper focuses on one of the primary causes of involuntary black
land loss in recent times— partition sales of black-owned land held under tenancies in common.
A partition sale can be viewed as a “private” forced sale of land held under concurrent ownership
arrangements, typically the tenancy in common. The combined effect of two sets of legal rules
contribute to the loss of black-owned rural land as a result of partition actions. First, like many
other poor people in this country, rural African American landowners have tended not to make
wills; at the owner’s death, state intestacy rules transfer to a broad class of heirs an interest in real
property of the intestate. Property passed down by intestacy over generations becomes highly
fractionated, splintering the fee into hundreds and even thousands of interests.

Second, the resulting tenancies in common are governed by rules of common ownership that
fail to distribute rights and responsibilities fairly amongst the tenants in common. Any tenant in
common, whether a co-tenant holding a minute interest or a majority interest, may force a sale of
the land, thereby ending the tenancy in common. Any co-tenant may sell their interest to someone
outside of the family or ownership group, bringing a stranger into the common ownership, without
seeking the consent of the other co-tenants. Despite these broad powers, there are no
corresponding obligations to contribute to the ongoing costs of maintaining the property.

In the special case of fractionated heir property, especially as held by poor people, these
distributional problems can be magnified. It may be impossible even for a diligent co-tenant in
possession to obtain contribution from the other co-tenants for the ongoing costs of maintaining
the property. Poor people who own heir property in common are unlikely to have access to
lawyers who can craft sophisticated, private agreements to manage common property in a manner
that fairly distributes rights and responsibilities and ensures continued ownership of the land by the
group. Race compounds this problem as minorities often have less access to legal professionals
than other, similarly situated people in terms of economic class.10 And where interests are
fractionated, any effort to reach such a private agreement ex post facto involves prohibitive
transactions costs. Simply identifying the other co-tenants who often are dispersed throughout the
country can be impossible.

Opportunistic lawyers or land speculators have taken advantage of these legal rules in order
to acquire black-owned land. Many times, family members know— or learn from an outsider— that
they own an interest in a tenancy in common and decide to cash out. Although some seek legal

9 CIVIL RIGHTS ACTION TEAM, U.S. DEP’T OF AGRIC., CIVIL RIGHTS AT THE U.S. DEP’T OF AGRIC. 14 (1997)

[hereinafter the CRAT Report].
10 As the supervisor for the past two years of a clinical externship program run jointly by the Land Tenure Center

of the University of Wisconsin–Madison and the University of Wisconsin Law School, I have observed firsthand the
problem that poor African Americans experience in securing legal representation. Under this externship program, we
have sent law students from the University of Wisconsin Law School and Howard University School of Law to work for
the Federation of Southern Cooperatives/Land Assistance Fund in Epes, Alabama, over the course of the past three
summers. The Federation is an organization of rural agricultural, marketing, and credit cooperatives located throughout
the South that serves a primarily rural and African American population. In addition, the Federation attempts to help
African American landowners retain their land; however, such work is difficult because the Federation does not have
any lawyers on their staff. Each summer, we have had great difficulty in finding attorneys in Alabama interested in
representing the African American landowners and former landowners who have brought their cases to the Federation,
in many cases out of desperation.

4

assistance, many of these people do not want the entire land sold.11 Many of these family members
exit the tenancy in common by selling their interest to nonfamily members.12 They often do not
know the financial pressure that this may place on other co-tenants who may wish to remain on
the land or to preserve it for the family. Unbeknownst to the family member, the buyer often takes
the interest with the underlying motive of seeking a partition sale.13 Even the partition actions
initiated by family members who seek a sale of the property tend to be brought by “heirs who are
physically removed from the land.”

14

Through the mechanism of the partition sale, many rural African Americans who had worked
land that had been in the family for generations have been forced off the land in recent decades.
Interestingly, this story has parallels in the land tenure experience of other poor and minority
communities in the United States, especially of land identified with political or spiritual significance
for such communities. For example, at the conclusion of the United States–Mexico War, many
cash-poor Mexicans who sought to confirm prior grants of land (suddenly on the U.S. side of the
border) under the terms of the Treaty of Guadalupe Hidalgo lost their land after attorneys who
agreed to represent them in exchange for an interest in the land filed partition actions once they
acquired that interest in the land.15 Throughout this article, to highlight the common land tenure
problems poor, minorities in this country have faced and continue to face— common problems that
have been little noted by scholars— comparisons are made to certain American Indian land tenure
problems, both historical and contemporary.

Other factors have contributed to the diminishment of the rural African American land base.
Some landowners sold their land voluntarily and did not reinvest in other land.16 For some this
represented a decision to leave farming or leave the region. Many other, nominally “voluntary”
sales of black-owned land have been “occasioned by trickery, forgery, duress and other means
which give the appearance of ‘voluntariness’ on the face of the conveying instrument.”17 In these
instances and in other legal proceedings that have led to land loss, lawyers and land speculators
use sharp practices and sometimes commit outright fraud in order to dispossess African Americans
of their land.

18

11 THE EMERGENCY LAND FUND, THE IMPACT OF HEIR PROPERTY ON BLACK RURAL LAND TENURE IN THE

SOUTHEASTERN REGION OF THE UNITED STATES 280 (1984) [hereinafter THE EMERGENCY LAND FUND].
12 Id.
13 Id.
14 Id. at 126.
15 See Guadalupe T. Luna, Chicana/Chicano Land Tenure in the Agrarian Domain: On the Edge of a “Knaked

Knife,” 4 MICH. J. RACE & L. 39, 127 (1998).
16 See the CRAT Report, supra note 8, at 14.
17 THE EMERGENCY LAND FUND, supra note 10, at 252–3. Similarly, many “voluntary” sales of Indian-owned land

during the life of the Dawes Act were made under questionable circumstances. Cf. Judith Royster, The Legacy of
Allotment, 27 ARIZ. ST. L.J. 1, 5 (1995).

18 Unscrupulous land speculators used many of the legal processes that have contributed to black land loss to
deprive individual American Indians of millions of acres of land between passage of the Burke Act in 1905 and passage
of the Indian Reorganization Act in 1934. During this period many of the Indians holding individual allotments were
dispossessed of their land once the federal government removed the trust status and accompanying restrictions on
alienation of their property. The trust status was removed either through expiration of the 25-year period under the Dawes
Act or under provisions of the Burke Act whereby Indians who held allotments were deemed to be “competent” prior

5

In addition to partition sales, other legal processes have contributed to involuntary land loss
in rural African American communities. Discrimination in federal agricultural subsidies and
lending— the subject of the Pigford class action— is one factor contributing to involuntary land
loss. Well-respected activists who have worked to promote black land retention in the South over
the past thirty years also cite tax sales, foreclosure, adverse possession, and eminent domain as
legal processes that contribute to the loss of black-owned land.

Of all the legal processes that have contributed to black land loss, however, forced sales of
land represent a particularly harsh mechanism by which someone can lose land under the Hegelian,
personality theory of property set forth by Margaret Jane Radin and others.19 One can make a
reasonable argument that a landowner who opens himself or herself to adverse possession by not
vigilantly watching over his or her property over an extended period of time may not consider such
ownership vital to their sense of personhood. In contrast, under private forced sales such as
partition sales and foreclosure, other legal actors may force a sale of land in possession of a person
holding some interest in the land who may be productively using the land.20 Foreclosure is directly
linked to a property owner’s financial insolvency, although racial discrimination often causes or
contributes to the financial ruin of African American property owners in the first instance, as the
judge in the Pigford lawsuit noted.21 However, unlike the very structure of the legal rules

to the expiration of 25 years, even though a great number of these people could neither read nor write. See JANET A.
MCDONNELL, THE DISPOSSESSION OF THE AMERICAN INDIAN, 1887–1934 120 (1991).

19 MARGARET JANE RADIN, REINTERPRETING PROPERTY 197–98 (1993) (“Forced sale is sometimes (but not
always) an injury to personhood. It is not an injury to personhood where the person is appropriately thought of as a
wealth-maximizing entity holding fungible property, but it is an injury to personhood where personal property, taking
on the attribute-aspect, is involved”). Radin’s discussion of forced sales and “personhood” fits within her broader theory
that grounds property rights in the flourishing of the human personality. According to Radin, property closely associated
with a person— property for personhood— should be more strongly protected than property less imbued with significance
to a person. Radin posits that a person holding property less associated with the personhood perspective holds only
“fungible property rights” that may be overridden. The “personhood perspective” of property is premised upon the notion
that individuals must control certain tangible resources in the external world in order to develop themselves properly.
Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982).

20 Under eminent domain, governmental entities are required to demonstrate that a condemnation of land held by
a property owner will result in some public good for the community as a whole. In contrast, forced sales through partition
sales or foreclosure occur whether or not the person seeking to force a sale can demonstrate that the community will
benefit from such a sale.

21 Pigford v. Glickman, 185 F.R.D. 82, 87 (1999). The Court in Pigford highlighted how the Farmers Home
Administration contributed to the financial demise of Mr. James Beverly which resulted in Mr. Beverly’s being forced
to sell his property. The Court noted:

Mr. James Beverly of Nottaway County, Virginia, was a successful small farmer before going to the FmHA.
To build on his success, in 1981 he began working with the FmHA office to develop a farm plan to expand
and modernize his swine herd operations. The plan called for loans to purchase breeding stock and equipment
as well as farrowing houses that were necessary for the breeding operations. FmHA approved his loans to
buy breeding stock and equipment, and he was told that the loan for farrowing houses would be approved.
After he already had bought the livestock and equipment, his application for a loan to build the farrowing
houses was denied. The livestock and equipment were useless to him without the farrowing houses. Mr.
Beverly ended up having to sell his property to settle his debt to the FmHA.

Id. In a similar vein, many formerly solvent African American homeowners have been driven to bankruptcy and have
lost their homes through foreclosure as a result of the predatory lending practices of certain finance companies that have
targeted minority communities. MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH, WHITE WEALTH: A NEW
PERSPECTIVE ON RACIAL INEQUALITY 21 (1997).

6

governing partition actions that encourage forced sales of a tenant in common’s property interest
irrespective of his/her financial solvency or his/her desire to maintain continued ownership of the
land, the legal rules governing foreclosure do not in and of themselves contribute to a person’s
insolvency and subsequent loss of property.

In the African American experience in this country, not only has landownership proved vital
to individual development and democratic participation, but also such ownership has contributed
to building community. Those rural African Americans who acquired land soon after emancipation
rose to join the small numbers of those at the top of the rural, black class structure.22 Real
improvements in the lives of many of these landowners validated the strongly held view within the
community that landownership could “‘complete their independence’.”23 These landowners gained
an immediate stake in the economy and helped make the political life of the region more
democratic and robust. Landowning African Americans were much more likely to register, vote,
and run for office than other rural black people.

24

In later periods, including in the era of the civil rights movement, individual black landowners
and landowning groups of African Americans became anchors within their communities; they
served as buffers for their communities from the racism of the surrounding society.25 Many black
landowners, for instance, dedicated portions of their land for use by the wider community; schools,
churches, and community centers were often built on such dedicated land. Whether land was under
individual or community ownership, such landownership helped improve the life chances of many
destitute, rural African Americans. Not just theory but experience affirms the powerful conviction
amongst African Americans that landownership assures not just a living and autonomy, but that
there is a link between land, community, and power.

Given the historical, unfulfilled promise of governmental reallocation of land after the Civil
War and the undermining of black landownership once achieved without any significant
governmental assistance, our society has a clear moral obligation to reverse the processes that
have stripped black landowners of their land. The Vatican recently urged major land reform in

22 FONER, supra note 3, at 404.
23 Id. at 104.
24 Id. at 69.
25 RICHARD A. COUTO, AIN’T GONNA LET NOBODY TURN ME AROUND: THE PURSUIT OF RACIAL JUSTICE IN THE

RURAL SOUTH 39–40, 87–8, 244 (1991). Couto’s interview of an African American medical doctor from rural
Tennessee highlights the role that African American owner-operators of farms played in the registration of black voters
in Tennessee during the civil rights movement. In the course of an interview, Dr. Jesse Cannon, Jr., stated:

The largest group of blacks at that time who were heading the movement were people from this particular
community. They were the ones who provided homes for various civil rights workers or other legal people
to have a place to stay during that particular struggle. They provided homes for them, and they knew that they
could provide those homes without fear that some one was going to kick them out of their home because they
were doing that. Not only that, they organized rallies and provided transportation. They did the legwork, and
they organized the first massive groups to descend upon the courthouse here in Brownsville, the county seat,
and they were the ones who stood there in lines for weeks to get registered. They could do this because they
had their own farms. They weren’t tenant farmers who, if they weren’t out there in the fields, they were going
to get kicked off the farms.

Id. at 39.

7

poor countries on largely moral grounds.26 Reform of laws in the United States to promote land
acquisition and retention in disadvantaged communities would be consistent with this international
focus on promoting just patterns of land distribution. Some political and moral thinkers advocate
that land be reallocated to specific ethnic groups in order to promote enhanced cultural integrity
for such groups. Hurst Hannum for one states that “[w]ith few exceptions, a territorial base . . .
is essential to the preservation of a group’s culture.”27 Yet African Americans who fought to
acquire and retain land throughout the past century were not motivated in the main by the idea of
building a separate and distinct culture that would be separate from the rest of the country. They
sought landownership as a vehicle that could facilitate participation in the larger society. For this
reason, strengthening the ability of African Americans to maintain landownership— no matter how
diffuse or scattered these holdings may be— should specifically concern democrats whose goal is
to increase the participation of African Americans and reverse their historic marginalization. This
article advocates government intervention to promote enhanced landownership— both
quantitatively and qualitatively— for African Americans.

Reform of the state laws of intestacy to narrow the class of heirs to whom property may pass
could prevent fractionation of the ownership interest in the first instance. So, too, public interest
lawyers, legal aid offices, and community activists could work to educate landowners of the
importance of estate planning with the goal of family-land retention. Such reforms, however,
would only marginally impact ownership interests that already are fractionated. In these cases, the
horse is already out of the barn. Instead, this paper maintains that the problem of fractionated heir
property within the rural, African American community justifies more fundamental reform of
common property law and the creation of government institutions that would have the capacity
to help those who own heir property restructure their ownership in a way that the ownership could
be stabilized and the property could be used productively.

Federal intervention to address the issue of fractionated heir property in minority hands would
not be unprecedented. In 1984, Congress recognized that the problem of fractionated heir property
in Indian hands, mostly in the West, warranted drastic intervention, notwithstanding the fact that
the particular proposed solution— twice ruled unconstitutional by the Supreme Court28— remains
contested both within and without the American Indian community. Moreover, under the Indian
Reorganization Act of 1934 (“the IRA”),29 the federal government reversed its fifty-year policy
of assimilation that it had sought to advance in part by land dispossession under the Dawes Act.
Supporters of the IRA made clear that landownership must be maintained for American Indians
given that land is so strongly identified with the American Indian heritage and is strongly linked
to the community’s sovereignty and survival. Notwithstanding the shortcomings of the act
identified by many in the American Indian community and by a number of academics, the IRA has
helped arrest the precipitous loss of Indian land that occurred between 1887 and 1934 under the

26 PONTIFICAL COUNCIL FOR JUSTICE AND PEACE, TOWARDS A BETTER DISTRIBUTION OF LAND (1997). Other

world religions such as the Baha’i Faith have also specifically addressed the importance of farmers and the role of the
agricultural sector to society. See, e.g., BAHA’I PUBLISHING TRUST, THE PROMULGATION OF UNIVERSAL PEACE: TALKS
DELIVERED BY ‘ABDU’L-BAHÁ DURING HIS VISIT TO THE UNITED STATES AND CANADA IN 1912 217 (2d ed. 1982)
(“The fundamental basis of the community is agriculture, tillage of the soil. All must be producers”).

27 HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION 112 (1990)
28 See Babbitt v. Youpee, 519 U.S. 234 (1997); Hodel v. Irving, 481 U.S. 704 (1987).
29 Indian Reorganization Act of June 18, 1934, 48 Stat. 988.

8

terms of the General Allotment Act of 1887 and other congressional acts enacted during this time
period.

The reforms proposed in this paper are not race specific for the most part; land tenure
amongst rural landowners and small farmers generally would be strengthened should these
proposals be enacted. Given the specific examples of linkage between landownership and
community in many parts of the Black Belt, land tenure reform provides a tested strategy,
consistent with the American liberal tradition, to promote racial justice and a more democratic
society. This would suggest that the federal government’s possible payment of $50,000 to Mr.
Beverly without restoring his farm to him not only fails to make him whole economically, but also
leaves him one short in the “bundle of democratic tools” that he formerly possessed. Although the
court in Pigford took the fatalistic position that “[h]istorical discrimination cannot be undone,”

30

our legal institutions should do their very best to make whole, as both economic and civic actors,
African Americans unfairly dispossessed of their land. Short of this, the federal government should
act now to ensure that rural, black landownership does not become merely an interesting, but
short-lived chapter in American history.

30 Pigford v. Glickman, 185 F.R.D. 82, 112 (1999).

9

1. PARTITION SALES OF BLACK-OWNED LAND:
How the rules of tenancies in common and patterns of family wealth
transmission contribute to land loss in rural, African American
communities

Though many legal rules and processes contribute to black land loss, activists and academics agree
that partition sales of land held under tenancies in common and tax sales are common avenues of
land loss.31 These experts also conclude that foreclosure,32 adverse possession,33 and eminent
domain also contribute to land loss.34 In some of these legal proceedings, opportunists use sharp
practices to acquire black-owned land against the clear will of most of those owning such land.

35

One organization with long experience promoting black land retention claims that “a sale for
partition and division is the most widely used legal method facilitating the loss of heir property”
within the African American communities they serve.36 In order to understand how partition sales
cause loss of black-owned land, one needs to understand the tenancy in common as a form of
concurrent ownership of land and the consequences of estate planning practices common of a large
number of poor, rural African Americans.

31 See, e.g., THE EMERGENCY LAND FUND, supra note 10, at 251–77; see also THE BLACK RURAL LANDOWNER—

ENDANGERED SPECIES xix–xx (Leo McGee and Robert Boone eds., 1979) [hereinafter THE BLACK RURAL
LANDOWNER]; ONLY SIX MILLION ACRES: THE DECLINE OF BLACK-OWNED LAND IN THE RURAL SOUTH 50 (Robert
S. Browne ed., 1973); and The Decline of Minority Farming in the United States, supra note 6, at 66. One of the most
respected attorney-advocates of black farmers and black land retention, David Harris, left the Durham, North Carolina-
based, Land Loss Prevention Project in 1998 to serve as associate counsel heading up the civil rights division within the
U.S. Department of Agriculture. Elizabeth Wellington, Champion of Black Farmers Takes New Role, THE NEWS AND
OBSERVER, Jan. 18, 1998, at B1.

32 BROWNE, supra note 30, at 50. See also Pigford, 185 F.R.D. at 87.
33 THE EMERGENCY LAND FUND, supra note 10, at 251.
34 BROWNE, supra note 30, at 45.
35 THE EMERGENCY LAND FUND, supra note 10, at 44 (“There is an array of persons and entities that prey on the

heir property situation by practices which are, although technically legal, clearly unscrupulous. These persons and entities
include lawyers, judges, individual citizens, businessmen, marginal lending institutions, land speculators, and public
officials”).

36 Id. at 273; see also John G. Casagrande, Jr., Note, Acquiring Property Through Forced Partitioning Sales:
Abuses and Remedies, 27 B.C. L. REV. 755, 756 n. 9 (1986) (noting that Edward Pennick of the Federation of Southern
Cooperatives/Land Assistance Fund estimated in 1985 that half of the cases at that time leading to the drop in black land
ownership involved partition actions that led to a sale of black-owned property). Although the author has spoken to
representatives of both the Land Loss Prevention Project in Durham, North Carolina, and the Federation of Southern
Cooperatives/Land Assistance Fund who confirm that they have handled hundreds of cases in which black rural
landowners have lost land as the result of partition actions, a LEXIS search uncovered only one reported state case that
explicitly addressed the partition sales of black-owned rural land. See McNeely v. Bone, 287 Ark. 339, 341, 698 S.W.2d
512 (Ark. 1985) (holding that partition sale of black-owned property did not violate 5th and 14th Amendments of the U.S.
Constitution even if the sale of the land was below market price).

10

1.1 TENANCIES IN COMMON

General characteristics

Tenancies in common are the most widespread form of concurrent estates in land.37 Unlike the
joint tenancy, which normally requires the presence of the four “unities” of time, title, interest, and
possession, a tenancy in common merely provides that each of the common owners who hold an
undivided interest in the property is entitled to use and possess the entire property.38 Unlike the
joint tenancy’s right of survivorship, a tenant in common may alienate his or her interest during
life and at death without seeking the consent of his or her other co-tenants.

39

Like the joint tenancy and other common-law concurrent estates, but unlike other forms of
common ownership of equity resources created by statute such as the corporation, no formal
management structure inheres by law in a tenancy in common. The allocation of management
responsibilities between tenants in and out of possession must be worked out in each particular
case, if this allocation is worked out at all. The common law has developed some rules that
allocate rights between co-tenants with respect to use and maintenance of the property. These
include rules that govern the rights of an “ousted” co-tenant, the distribution of rental income paid
by third parties, and the right to contribution for the payment of ongoing costs such as property
taxes, mortgages, and necessary repairs.40 Yet these rules are not comprehensive, uniform, or
prophylactic; they do not allocate responsibility for paying the ongoing expenses of co-owned
property between the common owners in the first instance, the area in which most conflicts
amongst tenants occurs.

A tenant in common who fails to pay his or her proportional share of these ongoing expenses
does not lose any interest in the property.41 Not surprisingly, “free-rider” problems42 are frequent.
The tenant who has paid more than a pro rata share of ongoing costs of maintaining the property
may seek to recoup payments made in excess of his or her share against other co-tenants.

43

However, such contribution actions can jeopardize the interests of those who desire to maintain
ongoing ownership of the land. Some courts permit a tenant in common to initiate an independent
action short of a final accounting against his or her fellow co-tenants seeking contribution for
repair costs incurred in excess of the tenant’s pro rata share; other courts maintain that such a co-
tenant can recover these excess repair expenses only in a final accounting as part of a partition
action that terminates the concurrent ownership estate.44 Many times one co-tenant pays more than
his share of the property taxes. Due to the fact that the co-tenants are not personally liable in most
circumstances for payment of the property taxes, the tenant who has paid more than his/her pro

37 ROGER A. CUNNINGHAM ET AL., THE LAW OF PROPERTY § 5.2, at 188, (2d ed. 1993).
38 Id.
39 Id. at 190.
40 Id. at §§ 5.9, 5.10, at 215–222.
41 The Emergency Land Fund, supra note 10, at 43.
42 JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 49–50 (4th ed. 1998).
43 CUNNINGHAM ET AL., supra note 36, at 215–17.
44 Id. at 215.

11

rata share of the property taxes may recoup such excess expenses only after a court sells the
property at a judicial sale and equitably distributes the proceeds from the sale.

45

Partition sale

In most social contexts, a tenancy in common represents an unstable form of common ownership
of equity. Each interest may be freely alienated by the holder, allowing any co-tenant to bring a
stranger into the community of ownership. A person holding an undivided interest in a tenancy in
common— no matter how small that interest may be— may file a partition action to terminate the
co-tenancy without the consent of the other co-tenants.46 The court will either order that the
property be partitioned in kind (resulting in the physical division of property) or that the entire
property be sold and the proceeds of the sale distributed.

47

Most state statutes provide that a physical division of the property is the preferred remedy in
a partition action; a partition sale should be ordered only if the parties would be prejudiced by a
partition in kind. Yet courts now order partition sale in almost every case.48 Although some courts
and commentators still refer to partition sale as a drastic remedy,49 the current preference for
partition sale reflects the ascendant economic view that places primary importance on individual
wealth maximization. According to this view, an economically valuable parcel of land should be
allocated to the person willing to pay the highest price on the free market.50 This assures efficient
use, at least theoretically. In accordance with this view, partition sale is preferred over partition
in kind because land sold as a unit often has a higher economic value than the aggregate value of
subdivided parcels that result from a division in kind.51 Further, transferring ownership from
common owners who may not be able to compete against more wealthy or better financed bidders
at a forced, public sale constitutes a public good under this view because the value of
landownership is measured only against the market. Therefore, it is irrelevant if many of these
forced sales transfer land from smallholders to large landowners, including large corporate
interests. As one commentator holding this view has claimed:

[A] rule favoring sales in partition actions would promote efficiency by placing the property on the
open market where co-owners opposing a sale or having a particular emotional attachment to the
property would have an opportunity to retain possession by outbidding all comers. Therefore, the
market price would reflect both the objective and the subjective values of the property. . . . Under
the principle of wealth maximization, when property is placed on the open market, courts are

45 Id. at 217.
46 DUKEMINIER & KRIER, supra note 41, at 340. The remedy of partition is also available to joint tenants, but is

not available to tenants by the entirety. Id. at 341.
47 CUNNINGHAM ET AL., supra note 36, § 5.13, at 229.
48 Id. at 231; see also DUKEMINIER & KRIER, supra note 41, at 347; 4A R. POWELL, THE LAW OF REAL PROPERTY

¶ 612, at 651 (rev. ed. 1982); and Candace Reid, Note, Partitions in Kind: A Preference Without Favor, 7 CARDOZO
L. REV. 855, 862 (1986).

49 See, e.g., Vesper v. Farnsworth, 40 Wis. 357, 359 (Wis. 1876) (holding that a “partition sale is a dangerous
expedient, exposing those of the parties who are not able to bid at the same, to the deprivation of their property without
just compensation”); see also JOSEPH W. SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES 719 (2d ed. 1997)
(“[P]artition is a drastic remedy that may very well result in a sale of the property”).

50 RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 82–86 (5th ed. 1998).
51 See Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets,

111 HARV. L. REV. 621, 665 (1998).

12

assured that the property will fetch the highest price possible and will end up in the hands of the
party who values it most.52

By liberal, or even routine, orders for partition sale, the courts now enable an individual co-tenant,
no matter how small his/her interest in the land, to force a sale of the entire property so as to
maximize the amount of money s/he will receive in the distribution of the proceeds.

The current preference for partition sale represents a particular application of the modern
view that land is merely a fungible commodity whose value should be determined by the market.53

The shift in the view of the economic importance of land roughly tracks the transition from
classical to neoclassical economics that many economic scholars claim occurred in the late 1800s.

54

By the conclusion of World War II, economists increasingly challenged the traditional view that
land holds unique value.55 At present, the view that “land is no different than the other factors of
production” is the predominant one in most economic textbooks, and those textbooks have
directly influenced the thinking of economists and noneconomists alike.

56

The development of the law in partition actions mirrors the shift in views by many economists
with respect to the importance of landownership. Older judicial opinions, along with a handful of
more contemporary decisions, take into account the noneconomic interests of those who wish to
maintain landownership. In Delfino v. Vealencis,57 for example, the Supreme Court of Connecticut
reversed a lower court decision that ordered a partition sale and stated that “[i]t is the interests of
all of the tenants in common that the court must consider; . . . and not merely the economic gain
of one tenant, or a group of co-tenants.”58 Now, courts primarily seek to protect the economic
interests of individual co-tenants. Nevertheless, as discussed infra, the modern practice of
routinely ordering partition sales in order to maximize the monetary return of an individual tenant
stands in contrast to the legal rules regulating exit from other common-ownership forms such as
corporations, other noncorporate business organizations. and condominium associations.

The rules that govern partition of many, nontribal Indian allotments differ markedly from the
common-law rules of partition just discussed.59 At least some federal courts vested with exclusive

52 Reid, supra note 47, at 878–9.
53 LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 63 (1985). In comparing land transactions in the

early American colonies with property transfers in England, Friedman states: “Land transactions shifted from status to
contract; land rights were no longer matters of family birth, and tradition; rather, land was a commodity, traded on the
open market. This was a slow but inexorable process. In was not complete until the 19th century, and in a sense not even
then.”

54 Emery N. Castle, Why Land Matters (paper commissioned for a conference held at the University of Wisconsin–
Madison), “Who Owns America? Land and Resource Tenure Issues in a Changing Environment”) (June 21–24, 1995)
(on file with the Land Tenure Center).

55 See id. at 1.
56 Id. at 5.
57 436 A.2d 27 (Conn. 1980).
58 Id. at 33.
59 As in many areas of federal Indian law, the law governing partition actions for Indian-owned land is complicated.

State partition laws apply to those allotments that are subject to the General Allotment Act. See FELIX S. COHEN,
HANDBOOK OF FEDERAL INDIAN LAW 623 (Rennard Strickland ed. 1982) [hereinafter COHEN’S HANDBOOK OF FEDERAL
INDIAN LAW]. In some states, the state courts have jurisdiction over partition actions. For example, allotments owned
by members of the “Five Civilized Tribes” became subject to the partition laws of the State of Oklahoma in 1918. See

13

jurisdiction over partition actions involving American Indian tenancies in common appear to be
more sensitive to the implications and equities of ordering a division in kind as opposed to a
partition sale than many state courts hearing partition actions in the non-Indian context. For
example, in Oyler v. United States,60 on a motion for reconsideration of a court-ordered partition
sale of an Indian allotment, the district court set aside its order for a partition sale and imposed an
order that provided mixed relief, including division in kind of most of the 94-acre tract, and sale
and reallocation to one group of defendants of a 2.6-acre tract.61 In ordering a remedy that mostly
consisted of partition in kind, the court noted that the majority of the interest holders opposed
sale.62 The court also considered the consequences of ordering a sale of land that the defendants
valued as part of their heritage, especially in a manner that would not fully compensate the parties
after subtracting the costs of the litigation. The court stated:

[I]t appears less likely to the court that all of the parties will realize the full value of their interest
in the land if a public sale of the property occurs. Even if the land is sold precisely at the appraised
value, after the costs of this action are subtracted from the proceeds of the sale, some of the parties
will receive precious little compensation for land which, if nothing else, represents their Indian
heritage.

63

The Oyler court acknowledged not just the real-world, economic ramifications of ordering a
partition sale, but specifically took into account the land’s significance to one group of Americans
dispossessed of much of their historical land base. The Oyler court’s concern for preserving Indian
heritage land has few analogs in partition cases involving land acquired by African Americans
following emancipation.

1.2 PATTERNS OF FAMILY WEALTH TRANSMISSION AMONGST POOR, RURAL
AFRICAN AMERICANS CONTRIBUTE TO THE FRACTIONATION OF INTERESTS
AND MAKE MUCH BLACK-OWNED LAND A TARGET FOR LAND SPECULATORS

The tenancy in common represents a potentially unstable form of ownership because alienability
is unrestricted and the partition remedy is weighted toward dissolution. A tenancy in common with
a large numbers of co-tenants is even more unstable simply because the problems of free-riding
and exit are multiplied.64 Because of the low incidence of estate planning amongst poor, rural
African Americans,65 much of the black-owned land base in the South has been traditionally

Act of June 14, 1918, 40 Stat. 606 (codified at 25 U.S.C. § 355). The Oklahoma state courts have jurisdiction of these
partition actions. In other instances, the federal courts have exclusive jurisdiction over partition cases. Id. at 623–24.

60 1995 U.S. Dist. LEXIS 5652 (92-2104 Mar. 17, 1995).
61 Id. at *3–6.
62 Id. at *14.
63 Id. at *14, n. 9.
64 See C. Scott Graber, Heirs Property: The Problems and Possible Solutions, Sept. 1978 Clearinghouse Rev.

273, 277 (1978) (“One thousand heirs provide 1,000 targets to a person who really wants the land”).
65 As discussed infra, the incidence of will-making amongst rural, African American landowners may not be that

much lower than the rate of will-making amongst poor people generally despite the assumption by many commentators
who have written articles suggesting that African American landowners make wills at an especially low rate.

14

transferred from one generation to another under state intestacy laws.66 Property acquired under
the intestacy laws is commonly referred to as “heir property.”

67

Although a tenancy in common created by volition and a tenancy in common created by
operation of the laws of intestacy may be governed by the same set of property laws,68 these two
different methods of formation yield ownership arrangements that are quite different in character.
A tenancy in common created consensually resembles a closely held corporation: there tend to be
a small number of co-owners, each member of the ownership structure knows the other owners,
and the owners are likely to live within close proximity of one another. A tenancy in common
created under the laws of intestacy, by contrast, bundles together groups of people who may have
little actual connection to one another or even knowledge of one another’s existence.69

First, as time passes, not only do the number of interests increase in a tenancy in common
created by operation of law, but divergences also appear in the size of individual ownership
interests, especially after any in the first generation of heirs with children or lineal heirs die and
their interests pass to their descendants.70 When the property comes to be held by owners from
multiple generations, the common owners are likely to value the land differently and conflicts are
more likely to arise. Further, as the number of interests increase, the owners are more likely to live
in scattered locations. Decisions regarding the disposition of the property that may have been fairly
simply to coordinate when all of the tenants in common resided, for example, in Sumpter County,
Alabama, become more difficult if some common owners live in Demopolis, Alabama, others in
Albany, Georgia, and still others in Chicago, Illinois.71 And as the number of interests increase,
it becomes difficult to locate and keep track of all of the owners: problems arise with the known
but unlocatable heir and with unknown heirs.72 Moreover, unlike land that is purchased or
transferred by gift or devise, heir property lacks record title.73 Because of these characteristics of
heir property, economic development of a significant proportion of land owned by African
Americans has been stifled. Owners have difficulty obtaining financing and co-owners may not be
able to agree on the most appropriate use of the land.

Consider the case study of an African American estate in Mississippi conducted by the
Emergency Land Fund. A certain African American named John Brown purchased 80 acres of land
in Rankin County, Mississippi, in 1887.74 After he died intestate in 1935, the land continued to be

66 Robert Zabawa, “And the Devil Got Alabama and Georgia”: Black Land Ownership in the South (paper
commissioned for a conference, “Who Owns America? Land and Resource Tenure Issues in a Changing Environment”
held at the University of Wisconsin–Madison) (June 21–24, 1995) (held on file with the Land Tenure Center).

67 THE EMERGENCY LAND FUND, supra note 10, at 8. In St. Lucia, a country in the Caribbean, such land is referred
to as “family land.” See John W. Bruce, Family Land Tenure and Agricultural Development in St. Lucia, Land Tenure
Center R.P. 79, U.S. ISSN 0084-0815 (1983).

68 The two different types of tenancies in common will be governed by the same property law if the tenancy in
common created by agreement adopts the default rules governing tenancies in common that automatically apply to a
tenancy in common created by operation of law.

69 THE EMERGENCY LAND FUND, supra note 10, at 62. For example, one study has revealed that a typical heir
property tract in the Southeast is owned by eight people, five of whom live outside of the southeastern region. Id.

70 See THE EMERGENCY LAND FUND, supra note 10, at 40.
71 See id. at 42–3.
72 Id. at 43.
73 Id. at 44.
74 Id. at 283.

15

passed down by intestacy. By the time an heir holding more than 50 percent of the interest in the
land filed for a partition in kind of the property in 1978, there were 77 heirs who held an interest
in the property, with the smallest interest holder owning a 1/19,440th interest in the land.75 Like
many other cases, the desire of the majority interest holder to secure a physical partition of the
land was frustrated as the court decided to order a sale of the property after a few of the other
heirs holding a minority interest objected to the proposed division of the property.76 The
fractionated heir property problem within rural African American communities manifested by the
John Brown estate is typical; a 1984 study estimated that 41 percent of black-owned land in the
southeastern states is heir property.77

If heir property tends to be highly fractionated and fractionation increases the risk of partition,
then this pattern of family wealth transmission directly contributes to black land loss. The evidence
is that at least half and perhaps most rural, African American landowners in the South have not
made wills. Because parents, grandparents, and great-grandparents did not make wills either, a
significant proportion of rural, black-owned land in the South can be labeled heir property. Two
separate studies conducted within restricted geographical areas of the South indicate that most
rural, black landowners have not made wills. One study surveyed 1,708 black landowners in 10
counties located in 5 southeastern states. Eighty-one percent of the black owners of rural parcels
had not made wills.78 Another study of 120 rural, black landowners in 12 counties in south-central
Alabama found that 56 percent of these landowners had not made wills.79

As an aside, the assumption that the rate of will-making for rural, African American
landowners lags far behind that of other, similarly situated landowners appears misguided.
Moreover, it is difficult to determine whether the pattern of will-making within the rural African
American landowning group is a marker of class or race because there are not many similar studies
of poor, rural white landowners.80 More broadly, one study indicates that 55 percent of people
surveyed in five states had not made wills.81 This five-state study also indicates that 65 percent of
those with family income below $65,000 a year do not make wills.82 Further, 72 percent of those
with estates worth less than $130,000 and 50 percent of those with estates worth less that
$260,000 had not made wills.83

75 Id. at 283–85.
76 Id. at 283.
77 Id. at 475.
78 Id. at 65, 113.
79 Robert Zabawa and Ntam Baharanyi, Estate Planning Strategies and the Continuing Phenomenon of Black-

Owned Landloss, THE RURAL SOC., July 1992, at 13, 16 (1992). The rates of will-making for black landowners in both
the broader survey conducted in ten counties in five southeastern states and the study limited to ten counties in Alabama
were higher than the rate that the Emergency Land Fund forecasts. In their study on heir property, the Emergency Land
Fund hypothesized that approximately 90 percent of black landowners in the Southeast will die without making wills.
See THE EMERGENCY LAND FUND, supra note 10, at 114.

80 THE EMERGENCY LAND FUND, supra note 10, at 118 (noting that no comparable survey exploring the will-
making practices of rural, white landowners has been conducted). It would be interesting to conduct such a study and
examine whether there is a comparable problem of land loss in poor white, rural communities.

81 LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 30 (2d ed. 1997).
82 Id.
83 Id.

16

Moreover, the explanations offered by academics for the numbers of rural black landowners
who have not made wills are not very convincing. Although one study ascribes the failure of many
rural black landowners to make wills to a legal system that African Americans had come to
mistrust because their property interests were often not protected by it, there does not appear to
be any empirical evidence to support this assertion.84 In fact, the survey results of black
landowners who both made and had failed to make wills— included in the report— seems to
contradict the historical explanation and suggests that many of those who experienced the most
direct racism had learned the importance making wills.85 Other commentators have suggested that
descendants of slaves brought from Africa to different parts of the world have come to rely on the
laws of intestacy to further the supposed West African customary practice of succession under
which all children inherit.86 However, given the wide representation of ethnic groups amongst
those who were brought to this country as slaves from Africa and the impact that the slavery
experience had on transforming traditional culture, it appears unlikely that the rate of will-making
can be linked to some particularized, traditional African cultural practice.87 Interestingly, the
cultural explanations offered for the failure of many people of African descent to make wills have
parallels with the explanations some have offered for the high percentage of American Indians who
have not made wills which has led to the fractionation of many individual Indian allotments.88

84 THE EMERGENCY LAND FUND, supra note 10, at 115 (stating that “Estate planning through testacy was not

incorporated into black thought because blacks felt that they could not trust or rely on a legal system which had
traditionally failed to protect their interests”).

85 See THE EMERGENCY LAND FUND, supra note 10, at 121. The report states the following:
“Fifty (50%) percent of the respondent will-makers were over fifty-five (55) and eighty-four (84%) percent
were over thirty-five (35) years of age. Although the older black landowners still harbor a distrust of the legal
system, many have evidently learned that the legal system can be relied upon to support affirmative initiative
to protect their land. By making wills, they can provide for orderly and efficient disposition of their property.
. . .
Younger minority landowners have not learned the bitter lesson taught the older generation regarding
minority land retention in the rural South. They did not witness the loss of ten (10) million acres of black-
owned land between 1910 and 1969. They may soon learn, however; but the lesson may be costly.”

Id. The difference in the rate of will-making between older black landowners and younger black landowners highlighted
in the foregoing study closely tracks the difference in the rate of will-making by age revealed in a study of the rates of
will-making conducted in five states, especially when one takes into account the economic class of the landowners. In
the five-state study, 61 percent of those between the ages of 46 and 54 and 63 percent of landowners between the ages
of 55 and 64 had made wills; in contrast, only 12 percent of those between 17 and 30 years of age and 35 percent of those
between 31 and 45 had made wills. See WAGGONER ET AL., supra note 80, at 30.

86 Edith Clarke, Land Tenure and the Family in Four Selected Communities in Jamaica, 1 SOC. & ECON. STUD.
81, 86–7 (1953).

87 See Bruce, supra note 66, at 14–5.
88 A group called the Indian Agricultural Committee (“IAC”) has proposed policy reforms to address the

fractionation of heir property in Indian country. As part of a draft proposal addressing the fractionation of Indian
allotments, the IAC offered its view of the reason Indians had not made wills after ancestral Indians lands were allotted
in the late nineteenth century. The IAC stated:

The lack of a tradition of private ownership resulted in a lack of formal wills or other conveyance documents
which would have prevented the current situation. This situation may not have become a problem if left to
traditional tribal remedies, because the established tribal decision making process would have re-allocated
the holdings. However, the allotments were made under federal provisions, and therefore the distribution of
a decedent’s assets were also based on the English Common Law, not the local law or tribal cultures
understood by the affected individuals.

17

Although the root causes of the low incidence of will-making amongst rural, African
American landowners are not well understood, it does appear that many black landowners lack
a sophisticated understanding of the legal rules governing the transfer of property from one
generation to another. Two studies indicate that a clear majority of the black landowners surveyed
were apathetic about preparing a will, expressing the sentiment that they simply “had not got
around to it.”89 However, the surveys also revealed that many of the landowners were quite
misinformed about the laws governing tenancies in common. In one study, almost 75 percent of
those acquiring property through intestacy believed that all the tenants in common must consent
to a sale of the land.90 The misconceptions held by many rural, African Americans concerning the
laws that govern tenancies in common suggest that these communities have comparatively limited
access to attorneys and indicate that meaningful policy reform would include proposals designed
to increase the access such owners have to legal professionals for purposes of basic estate
planning.

The reliance on intestacy has contributed to intense fractionation of property held under
common ownership structures within other poor communities both in the United States and in
other countries. For American Indians, one commentator has stated that the heirship problem, “[is]
second only to alienation amongst the evils wrought by” the era of the allotment of Indian lands
that was federal Indian policy between 1887 and 1934.91 Studies by the U.S. Senate and the U.S.
House of Representatives in the early 1960s indicated that one-half of the allotted Indian lands
then held in trust by the federal government had become fractionated.92 The Supreme Court noted
the problem in Hodel v. Irving.

“The failure of the allotment program became clearer as successive generations came to hold the
allotted lands. Thus 40-, 80-, and 160-acre parcels became splintered into multiple undivided
interests in land, with some parcels having hundreds, and many parcels having dozens, of
owners.”93

Just as the John Brown estate highlighted the intense fractionation of heir property typical of many
rural, African American property holdings, certain tracts of land on the Sisseton-Wahpeton Lake
Traverse Reservation demonstrate the degree of fractionation of all too many Indian allotments.
The average tract on that reservation has 196 owners and the average owner holds undivided

(Unpublished document on file with author).

89 THE EMERGENCY LAND FUND, supra note 10, at 113; Zabawa and Baharanyi, supra note 78, at 18.
90 THE EMERGENCY LAND FUND, supra note 10, at 123.
91 Michael C. Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on 2.2480 and S.2663 Before the

Senate Select Comm. on Indian Affairs, 98th Cong. 81 (1984) [hereinafter Heirship: The Indian Amoeba]. See also
Hodel v. Irving, 481 U.S. 704, 707 (1987) (“The policy of allotment of Indian lands quickly proved disastrous for the
Indians. Cash generated by land sales to whites was quickly dissipated, and the Indians, rather than farming the land
themselves, evolved into petty landlords, leasing their allotted lands to white ranchers and farmers and living off the
meager rentals”).

92 See HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 86th Cong., 2D SESS. INDIAN HEIRSHIP LAND
STUDY, (Comm. Print 1961); SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 86th Cong., 2D SESS., INDIAN
HEIRSHIP LAND SURVEY, (Comm. Print 1960-61).

93 Hodel, 481 U.S. at 707.

18

interests in 14 tracts.94 An especially dramatic example of this fractionation is tract 1305.
According to the Supreme Court:

Tract 1305 is 40 acres and produces $1,080 in income annually. It is valued at $8,000. It has 439
owners, one-third of whom receive less $.05 in annual rent and two-thirds of whom receive less than
$1. The largest interest holder receives $82.25 annually. The common denominator used to compute
fractional interests in the property is 3,394,923,840,000. The smallest heir receives $.01 every 177
years. If the tract were sold (assuming the 489 owners could agree) for its estimated $8,000 value,
he would be entitled to $.000418. The administrative costs of handling this tract are estimated by
the Bureau of Indian Affairs at $17,560 annually.95

Fractionation of individually owned Indian trust land precludes meaningful economic development,
preventing wealth generation from one generation to another. However, such fractionation has not
led to significant land loss because of the different application of partition laws in cases involving
much of nontribal, Indian trust land. Until 1980, the Interior Department had maintained that even
a partition in kind of an Indian allotment required the consent of all of the tenants in common.96

In 1980, a federal district court in South Dakota ruled that at the discretion of the Secretary of the
Interior a partition can be ordered even if only one co-tenant files an application.97 Even after
Sampson, however, partition sales do not appear to be a major source of land loss in the American
Indian community.

Outside of the United States, other poor communities have also experienced significant
problems with fractionation of commonly owned property. In St. Lucia and other Caribbean
countries, for example, “family land” has become intensely fractionated over time due to the failure
of landowners to make wills.98 Owners of such land find it difficult to secure credit and marketable
title, limiting productive use of their land.99 But the comparative American Indian and Caribbean
case studies show that the dynamic of land loss requires more than just fractionated heir property.
Partition rules are crucial. In contrast to rural, African Americans, St. Lucian owners of “family
land” have not lost much of their land through partition because the law does not allow an
individual common owner to seek partition without the consent of all the other common owners.100

94 See Hodel, 481 U.S. at 712.
95 Id. at 713.
96 COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, supra note 58, at 623; see also Heirship: The Indian Amoeba,

supra note 90, at 60; Ethel J. Williams, Comment, Too Little Land, Too Many Heirs – The Indian Heirship Land
Problems, 46 Wash. L. Rev. 709, 714 (1971). Under current law, a partition in kind of an inherited trust allotment may
be made either by the Secretary of the Interior without application if it is determined that the partition is to the “advantage
of the heirs,”or after the heirs make a written application for partition in kind and it is determined that the land is capable
of partition. 25 C.F.R. §152.33 (a)(b)(1999).

97 Sampson v. Andrus, 483 F. Supp. 240 (D.S.D. 1980).
98 See Bruce, supra note 66, at 3–4.
99 Id. at 21–3; see also THE EMERGENCY LAND FUND, supra note 10, at 236–250, 306–7.
100 Cf. Bruce, supra note 66, at 4 (noting that an administrator of an intestate’s estate in St. Lucia may not partition

the land in kind unless all of the heirs consent.).

19

2. AFRICAN AMERICAN LAND IMPERATIVE AND HISTORICAL
FACTORS CONTRIBUTING TO LAND LOSS

Africans brought to this country and enslaved were denied the right to acquire land by law. Aside
from being denied basic human rights under the slave system, some commentators argue that the
African slaves had no prior experience with private ownership of land. According to this view,
despite the linguistic and cultural practices that distinguished the slaves who were brought to the
New World from different regions in West Africa, the slaves as a group were all drawn from
societies that practiced communal land tenure.101 Whether or not this assessment is fully accurate,
over time the American slave system squelched the ability to practice the culture of African
ancestors and reoriented the enslaved to a system with different economic values. As time
progressed, the slaves “began to think of themselves more and more as individuals bound together
by the exploitative system of human bondage, and less as culturally united by a distinct African
culture(s).”102

Thrust into the lower rungs of an economic system that promoted individualism, African
American slaves accepted the notion that a better life was possible through the accumulation of
capital and property, even if their capacity to participate in the economic system was severely
constrained.103 From the earliest days in America, an internal slave economy developed that
enabled African Americans to participate in limited ways in the economic life of this country. In
early colonial Virginia, for example, many plantation owners set aside small tracts of land for their
slaves to use to grow food for themselves.104 Although slaves were almost never allowed to
acquire real property, many acquired some personal property that was owned individually, as
opposed to collectively.

Property ownership amongst slaves remained small during the eighteenth century, but by the eve
of the Civil War— according to comments of slaveholders, increasing enactments to halt “pretended
ownership,” the recollection of former slaves, and the reports of postwar investigators—
considerable numbers of slaves had become property owners. They possessed cattle, milk, cows,
horses, pigs, chickens, cotton, rice, tobacco, gold and silver coin, wagons, buggies, fancy clothing,
and in rare instances even real estate.105

Further, in the antebellum period, the incentive to acquire capital was particularly felt by those
African Americans given the opportunity to purchase their freedom.106 Those fortunate enough
to be freed spared no effort to become property owners.107

After issuance of the Emancipation Proclamation, the freedmen and freedwomen fully
expected the government to redistribute land throughout the South to a new class of black

101 SCHWENINGER, supra note 4, at 11.
102 Id. at 27.
103 Id. at 12.
104 Id. at 30.
105 Id. at 59.
106 Id. at 65–6.
107 Id. at 69.

20

smallholders.108 The great majority of emancipated slaves had experience only in agriculture,109

but lacked any resources to purchase land.110 These hopes of land reallocation seemed justified by
events that occurred both in the closing phases of the Civil War and in the actions taken by the
federal government soon thereafter. In his march through the South, General Sherman issued Field
Order 15 on 16 January 1865, declaring as abandoned land the Sea Islands stretching from
Savannah, Georgia, to Charleston, South Carolina, a total of 485,000 acres of land.111 Within
months of this order, General Rufus Saxton, tasked with implementing Sherman’s order, settled
40,000 freedmen on the islands on 40-acre plots. In addition to land, Sherman authorized Saxton
to give surplus horses and mules to the freedmen to the extent they were available.112 As it would
turn out, General Saxton’s allotment of land to the freedmen on the Sea Islands under Field Order
15 would constitute the greatest land redistribution program ever benefiting African Americans
in this country’s history.113

Furthermore, in March 1865, Congress established the Bureau of Refugees, Freedmen, and
Abandoned Lands (“the Freedmen’s Bureau”).114 The legislation creating this agency “promised
every male citizen, whether refugee or freedman, forty acres of land at rental for three years with
an option to buy.”115 And in 1866, Congress passed the Southern Homestead Act opening to the
freed slaves settlement of 46 million acres of public lands. The 1866 Homestead Act differed from
the Homestead Act of 1862 in that the latter provided for homesteading only by non-Confederate
whites.116 In the first two years of the Southern Homestead Act, applicants could apply for
settlement of 80 acres of land; later this limit was increased to 180 acres.117

Ultimately, however, hopes for significant land reform were destroyed.118 The impact of the
Freedmen’s Bureau was muted and the Southern Homestead Act has been labeled “a dismal
failure.”119 Although the Freedmen’s Bureau had 850,000 acres of land under its control in
1865,120 half of the land was returned to the former white owners by mid-1866.121 Further, several

108 Manning Marable, Historical Perspective, in THE BLACK RURAL LANDOWNER, supra note 30, at 4. Eric Foner

has stated that the aspiration for landownership amongst African Americans after emancipation was similar to the post-
emancipation yearnings of freedmen in many other countries throughout the Western Hemisphere such as Haiti and
Brazil. However, Foner states that only “American blacks emerged from slavery convinced that the federal government
had committed itself to land distribution.” FONER, supra note 3, at 104.

109 Adell Brown, Jr., et al., Structural Changes in U.S. Agriculture: Implications for African American Farmers,
THE REV. OF BLACK POL. ECON., Spring 1994, at 58.

110 ROGER L. RANSOM & RICHARD SUTCH, ONE KIND OF FREEDOM: THE ECONOMIC CONSEQUENCES OF
EMANCIPATION 81 (1977).

111 COUTO, supra note 24, at 163.
112 Id. at 165. Eric Foner has suggested that the program of land distribution on the Sea Islands that included forty

acres and, sometimes, a horse or a mule, may account for the familiar call for “forty acres and a mule” after the end of
the Civil War. FONER, supra note 3, at 70–1.

113 COUTO, supra note 24, at 165.
114 Act of Mar. 3, 1865, ch. 90, 13 Stat. 507.
115 COUTO, supra note 24, at 165.
116 OLIVER & SHAPIRO, supra note 20, at 4.
117 Id.
118 FONER, supra note 3, at 161.
119 Id. at 246.
120 Id. at 165.

21

months after passage of the Freedmen’s Bill, President Andrew Johnson began issuing a number
of pardons to former Confederates and ordered General O.O. Howard, commissioner of the
Freedmen’s Bureau, to issue a circular restoring land to the pardoned southerners.122 Few African
Americans were able to settle lands under the Southern Homestead Act due to the fact that anyone
who claimed that they had not supported the Confederacy was eligible to apply for land under the
act. Seventy-seven percent of the applicants under the Southern Homestead Act were white by
one estimate, and the limited number of black applicants faced additional hurdles of discrimination
in their effort to obtain government homesteads.1

23

Despite the government’s failure to provide significant land to the freed slaves during
Reconstruction, African Americans still maintained their focus on acquiring landownership.124

Almost completely through private purchase, African Americans acquired 15 million acres of land
in the South between emancipation and 1910, overcoming discriminatory credit practices, violence
perpetuated by anti-black groups, and the refusal of many whites to sell to black people.125 African
Americans throughout the South overcame obstacles to land acquisition by demonstrating what
can only be described as heroic action. In the agricultural sector, where the overwhelming number
of black landowners were concentrated, black farm owners constituted 16.5 percent of all southern
landowners by 1910.126 It must be noted, however, that African Americans never were permitted
to purchase any significant amount of prime real estate; for the most part, black people could buy
land in “areas with less fertile soil, perhaps tucked away in the hills, not too close to the main
highways or railroads, nor to white schools or churches.”127

No matter what the quality of the land, these remarkable gains in black landownership in the
rural South have almost been wiped out. At the end of this century, African Americans in the
region have been losing land almost as rapidly as their forebears acquired it at the beginning of the
century. One study estimates that almost none of the 15 million acre land base that black people
acquired between 1865 and 1910 remains within the original black families that once owned the
land.128 Fewer than 3 million acres of land are currently owned by rural, African Americans in
farming, irrespective of when such land was acquired.129 Black-operated farms today are

121 Id. at 161.
122 FONER, supra note 3, 159.
123 OLIVER & SHAPIRO, supra note 20, at 14–15.
124 RANSOM & SUTCH, supra note 109, at 82–3.
125 See Peggy G. Hargis, Beyond the Marginality Thesis: The Acquisition and Loss of Land by African Americans

in Georgia, 1880–1930 in AGRIC. HIST., Spring 1998, at 246. Not only did many African Americans who tried to
acquire land face violence, but also some whites who sold land to African Americans were threatened with violence from
their fellow whites for what was considered their unpatriotic acts. See RANSON & SUTCH, supra note 109, at 86.

126 U.S. COMM’N ON CIVIL RIGHTS, THE DECLINE OF BLACK FARMING IN AMERICA 21 (1982) at 21 [hereinafter
THE DECLINE OF BLACK FARMING IN AMERICA].

127 Id. at 23.
128 THE EMERGENCY LAND FUND, supra note 10, at 100.
129 See supra note 9 and accompanying text. It should be noted that the exact amount of black landownership is

difficult to ascertain precisely because most estimates rely in part on agricultural census data. These data are problematic
for many reasons. See THE EMERGENCY LAND FUND, supra note 10, at 19–21; see also THE DECLINE OF BLACK
FARMING IN AMERICA, supra note 125, at 2, n. 3. Due to the methodological problems in calculating the precise number
of acres under black landownership, there has been some conflict in the literature that addresses black land loss as to the
precise amount of black landholdings. For example, in 1973, one commentator estimated that blacks in the rural South

22

concentrated in the southeastern states within the Black Belt130 and in Texas, Oklahoma, and
California.1

31

Black land loss closely tracks the steep decline of black farmers since 1920, a phenomenon
the recently settled class-action lawsuit filed by black farmers against the USDA brought to
national attention in the past year. In 1920, black farm owners accounted for one out of every
seven farms in the United States; today these farms account for less than 1 percent of all U.S.
farms.132 Overall, the number of black farmers has decreased from a high of 925,708 in 1920 when
one in four black farmers owned their own land133 to approximately 18,000 today— a 98 percent
decline.134 The number of white farmers has declined as well, but the rate of decline of black
farmers far outpaces that of white farmers.135 Even in 1870, just five years after the end of the Civil
War, there were close to 29,000 black farm owners in the South.1

36

With the age distribution of black farmers heavily tilted toward older farmers, the future of
black farmers in America looks, if possible, worse. The 1997 agricultural census counted only 745
black farmers under 35 years of age in the entire country, most of them concentrated in the
Southern states; these young farmers comprised just 4 percent of all black farmers.137 Black
farmers who were 70 years or older easily constituted the largest group of black farmers,
representing 24 percent of the total.138 Overall, the average age of black farmers was the highest
of any identified group of farmers, whether minority or white.139

General economic shifts in the agricultural industry have squeezed out many small farmers—
the group in which most black farmers are concentrated.140 The few remaining black farmers face
the additional threat of being forced out of farming due to continued discrimination by the USDA.

owned only 6 million acres of land. See generally Browne, supra note 30. A different 1984 study concluded that there
were “9,257,311 acres of black-owned rural land in the southeastern states.” THE EMERGENCY LAND FUND, supra note
10, at 61.

130 Strictly speaking, the Black Belt refers to the region (and not the people) in the Southeastern portion of the
country with fertile, dark soil. THE EMERGENCY LAND FUND, supra note 10, at 18.

131 The Minority Farmer: A Disappearing American Resource, supra note 6, at 6.
132 Id.
133 Marable, supra note 30, at 15. Of the approximately 888,000 black farmers in 1910, 175,000 fully owned their

farms and another 43,000 partially owned farms.
134 1997 CENSUS OF AGRICULTURE, supra note 5, at 25. The number of white farmers also decreased significantly

between 1920 and 1992; however, the white rate of decline of 65 percent in this period still pales in comparison to the
rate of decline of black farmers. Spenser D. Wood & Jess Gilbert, Re-entering African-American Farmers: Recent
Trends and a Policy Rationale 2 (unpublished paper on file with author).

135 For example, between 1982 and 1987, the percentage of black farmers declined by 30.9 percent at the same
time as the percentage of white farmers declined by 6.6 percent. 1987 CENSUS OF AGRICULTURE, PART 51, UNITED
STATES SUMMARY AND STATE DATA 21, App. A-7 (1987).

136 SCHWENINGER, supra note 4, at 164, 174.
137 1997 CENSUS OF AGRICULTURE, supra note 5, at 26.
138 Id. See also, Jerry Thomas, Black Farmers’ Battle Reaps Bitter Harvest, CHI. TRIB., Dec. 7, 1997, at Sec. 1,

1 (discussing difficulty last full-time, black owner-operator of a farm in Kankakee County, Illinois, has had farming and
trying to pass his farming operation onto another black farmer to continue the enterprise).

139 1997 CENSUS OF AGRICULTURE, supra note 5, at 24, 26.
140 Id. The 1997 census indicates that 77 percent of black farmers had agricultural sales of less than $10,000 and

86 percent of these farmers had sales of less than $20,000.

23

Applications for farm credit and other benefits available under the USDA are approved or denied
by state, by county committees of local farmers.141 Federal regulations mandate that those eligible
to elect commissioners to the three to five member county committees and those eligible to be
elected must possess an interest in a farm either as owner, operator, tenant, or sharecropper.1

42

Paralleling the small percentage of black farmers nationally, there are only 37 African American
county commissioners out of 8,147 county commissioners nationwide.143

The settlement of the Pigford class action made no substantive changes to the federal
mechanism of loan determinations that vests so much power in local commissioners.144 Given the
historic and stubborn refusal of these commissioners to treat black farmers fairly, even after
repeated federal studies over the past decades documented blatant discrimination against black
farmers by USDA officials and county commissioners,145 disparity in government support for black
farmers is likely to recur despite the settlement of the Pigford lawsuit. In fact, at the very time the
government was settling the Pigford lawsuit, black farmers in Arkansas and Georgia claimed that
commissioners in five county offices in the two states improperly denied black farmers disaster
assistance.146 One constant phenomenon has recurred since the first government reports
highlighted discrimination against black farmers over 30 years ago— the number of black farmers
has declined after each report has been issued. In fact, whereas the U.S. Commission on Civil
Rights reported that there were only 57,271 black farm operators in 1982,147 the 1997 census

141 7 C.F.R. §§ 7.1-7.38 (1999).
142 7 C.F.R. §§ 7.5, 7.15 (1999).
143 The CRAT Report, supra note 8, at 19. The representation of other minority farmers on county commissions

tracks the meager representation of black farmers. In 1994, minorities accounted for 4.7 percent of those eligible to vote
for county committee seats; however, just 2.9 percent of the county commissioners elected in 1994 were minorities. Id.
at 20.

144 Pigford v. Glickman, 185 F.R.D. 82, 110 (D.D.C. 1999). The Court stated:
The Consent Decree does not, however, provide any forward-looking injunctive relief. It does not require the
USDA to take any steps to ensure that county commissioners who have discriminated against class members
in the past are no longer in the position of approving loans. Nor does it provide a mechanism to ensure that
future discrimination complaints are timely investigated and resolved so that the USDA does not practice the
same discrimination against African American farmers that led to the filing of this lawsuit. In fact, the Consent
Decree stands absolutely mute on two critical points: the full implementation of the recommendations of the
Civil Rights Action Team and the integration and reform of the county committee system to make it more
accountable and representative. The absence of any such provisions has led to strong, heart-felt objections.
It has also caused the Court concern.
145 Although the Pigford lawsuit filed by black farmers helped reveal the widespread and systematic discrimination

within the federal farm program, the allegations of discrimination that formed the basis of the lawsuit have a long history
and were well documented in many reports dating back to at least 1965. See, e.g., Office of Inspector General, General
Evaluation Report for the Secretary on Civil Rights Issues (1997); the CRAT Report supra note 8 (1997); GAO, Farm
Programs: Efforts to Achieve Equitable Treatment of Minority Farmers (1997); U.S. Comm’n on Civil Rights, Federal
Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs (1996); GAO, Minorities and
Women on Farm Committees (1995); The Minority Farmer: A Disappearing American Resource, supra note 6 (1990);
Decline of Minority Farming in the United States, supra note 6 (1990); U.S. Dep’t of Agric., Report of the USDA Task
Force on Black Farm Ownership (1983); THE DECLINE OF BLACK FARMING IN AMERICA, supra note 125; U.S.
Comm’n on Civil Rights, Cycle to Nowhere, CLEARINGHOUSE PUB. No. 14 (1970); and U.S. Comm’n on Civil Rights,
Equal Opportunity in Farm Programs (1965) (finding discrimination in the USDA’s Farmers Home Administration,
Cooperative Extension Service, Soil Conservation Service, and Agricultural and Conservation Service).

146 Disaster Aid Denied, Black Farmers Charge, CHI. TRIB., Aug. 11, 1999, §§1, 3.
147 THE DECLINE OF BLACK FARMING IN AMERICA, supra note 125, at 1.

24

reports that there are currently just 18,451 black farm operators in the country.148 Even if
discrimination is rooted out, policies designed to uphold all small farmers— white and minority—
must be implemented in order to renew the prospects for small farmers who have not prospered
under this country’s agricultural policy over the past half-century.1

49

Members of the Pigford class publicly voice concern about an issue even more fundamental
than the issue of whether or not African American farmers will survive. They believe the actions
of the USDA and its state agents have been designed to strip away the diminishing number of acres
under black ownership in rural America.150 Some believe the USDA participated in a conspiracy
to take land from black farmers.151 Others say the refusal to restore land lost as a direct result of
the USDA’s acknowledged discrimination amounts to an intentional choice to dispossess black
farmers of their land. At root, these allegations reflect the view that black-owned rural land is a
political and not just a cultural or economic heritage. Without land, they fear, African Americans
will have less power to build community and to exercise the range of activities associated with full
citizenship in a democracy.

Behind the raw numbers indicating a historic decline in the numbers of black landowners in
the rural South are other factors, including African American migration patterns in this century.
As blacks left the South, the dispersal of family contributed to less secure common ownership of
real land left behind. Ironically, at the peak of black landownership and farming in the South in
1910, large numbers of African Americans began migrating out of the South. This “Great
Migration” continued through the 1960s and fundamentally redistributed the black population of
the country.152 In 1900, 90 percent of black people lived in the South;153 by 1980, the percentage

148 1997 CENSUS OF AGRICULTURE, supra note 5, at 25.
149 Wendell Berry, Failing our Farmers, N.Y. TIMES, July 6, 1999, at A21 (stating that “farm communities have

disintegrated everywhere . . . [a]nd a destructive agricultural economy is profoundly undemocratic”).
150 The author attended the “3rd National Black Land Loss Summit,” held in Durham, North Carolina, in February

1999, sponsored by the Black Farmers and Agriculturists Association. A number of conference participants were also
members of the Pigford class. These members almost uniformly expressed their opposition to the then-proposed and
now-final settlement of the lawsuit because it provides little assistance to black farmers who seek to recover land lost
as a direct result of the USDA’s discrimination. The concerns this author heard mirror the concerns that black farmers
expressed throughout the country in listening sessions held by the USDA’s Civil Rights Action Team. See The CRAT
Report, supra note 8, at 14.

151 Id. The CRAT Report makes this clear:
Many minority and limited-resource farmers believe that USDA has participated in a conspiracy to take their
land. They cite as proof the severe decline in farm ownership by minorities, especially African American
farmers, in the last 70 years. Much of this land had been owned for generations, in some cases acquired by
these farm families after slavery was abolished in the 1860’s.

Id.
152 Initially, “The Great Migration” referred to the migration of black people out of the South that occurred during

and soon after World War I. More generally, the term has also been used to capture the migration of blacks out of the
South during and after World War II. Stewart E. Tolnay, The Great Migration and Changes in the Northern Black
Family, 1940 to 1990, 75 SOC. FORCES 1213 (1997). Between 1910 and 1920, 525,000 African Americans migrated
out of the South; in the 1920s, 877,000 black people left the South. REYNOLDS FARLEY & WALTER R. ALLEN, THE
COLOR LINE AND THE QUALITY OF LIFE IN AMERICA 113 (1987). Prior to 1910, blacks had migrated out of the South
in much smaller numbers. In the 1870s, 70,000 left; in the 1880s, 80,000 left; in the 1890s, 174,000 left; and between
1900 and 1910, 197,000 more left. The doubling of the numbers of blacks migrating out of the region in the period
between 1890 and 1910 as compared to the period between 1870 and 1890 has been attributed, in part, to the increasing

25

had declined to 50 percent.154 Various push and pull factors encouraged blacks to leave the South
in large numbers during the World War I period. With the onset of war in 1914, northern factories
expanded their production; at the same time, the cheap supply of labor from southern and eastern
Europe dried up due to the outbreak of war.155 In the same period, in Louisiana in 1906, and
moving to Mississippi in 1913 and to Alabama in 1916, the Mexican boll weevil wreaked havoc
on the southern cotton crop.156 The appearance of the boll weevil coincided with a plunge in the
price of cotton and a series of floods that hit the South in 1915 and 1916.157 These natural
devastations led southern planters to shift their production to food crops and livestock, which
required fewer tenant farmers and day laborers.1

58

As once relatively unified African American families dispersed, those who remain in the region
and in possession of family agricultural land and those who left sometimes have come to value
their common property holdings differently. But the legal rules governing tenancies in common

use of blacks as strikebreakers in northern labor disputes. DOUGLASS S. MASSEY & NANCY A. DENTON, AMERICAN
APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 28 (1993).

153 Id. at 1214; see generally FARLEY & ALLEN, supra note 151, at 110–113.
154 Nick Clooney, Black Americans Tilt Southward, CIN. POST, Feb. 11, 1998, at A1. Interestingly enough, the

demographic trends have now shifted and more black people are currently migrating to the South than to any other region
in this country. In 1988, the proportion of African Americans living in the South increased to 56 percent from a low of
52 percent in 1980. See Barbara Vobejda, In Turn Back, Blacks Moving to the South; Dramatic Shift Reflects Economy,
Racial Mood, WASH. POST, Jan. 29, 1998, at A3. Further, between 1990 and 1995, 375,000 black people moved into
the South, doubling the number that had moved in during the prior 5-year period. Id. According to William Frey, a
demographer at the University of Michigan, the South was the only region in the country where more black people moved
in than migrated out between 1990 and 1995. Id. The regional net black migration numbers between 1990 and 1995 are
as follows: Midwest, -106,500; West, -28,700; Northeast, -233,600; and South, 368,800. Id. In a stark reversal of
sentiment, many blacks now find the South socially more progressive than the north. Id.

Analysis of demographic distribution patterns in the past century for American Indians and African Americans
reveals some interesting correlations. Just as 90 percent of African Americans lived in the south in 1900, 90 percent of
Native Americans lived in rural areas as recently as 1930. See CHANGING NUMBERS, CHANGING NEEDS: AMERICAN
INDIAN DEMOGRAPHY AND PUBLIC HEALTH 21 (Gary D. Sandefur et al. eds., 1996). By comparison, in 1930, a little
more than half of all other Americans lived in urban areas. Id. By 1990, slightly more than 50 percent of the American
Indian population resided in urban areas. Id. at 37. Just as African Americans first came north in large numbers due to
the outbreak of World War I, World War II served as the primary “pull” factor that drew American Indians out of rural
areas in large numbers. Id. at 22. Twenty-five thousand American Indians served in the military during World War II,
and another 50,000 were employed in war-related industries. Id. A higher percentage of Indians fought in World War
II than any other ethnic group in America and many of these Indians enthusiastically volunteered for military service.
DONALD L. FIXICO, TERMINATION AND RELOCATION: FEDERAL INDIAN POLICY, 1945–1960 4, 6 (1986). Further,
American Indians invested $17 million in war bonds and supported the war effort in many other sacrificial ways. Id. In
contrast to the oppressive racist conditions that caused many African Americans to seek a better life in the North during
the years of “The Great Migration,” the federal policy of “termination and relocation” served as the predominant “push”
factor that drove increasingly larger numbers of Indians to urban areas from approximately 1950 to the mid-1970s. The
policy of “termination and relocation” served as the official federal Indian policy from 1950 to 1975. An estimated
100,000 American Indians relocated to cities between 1952 and 1972. Sandefur et al., CHANGING NUMBERS, supra note
153, at 22. Although the rural-urban migration trends for American Indians have not reversed as dramatically as for
African al. Americans, the American Indian migration pattern appeared to reach an equilibrium in approximately 1970,
at roughly the same time that the out-migration of blacks from the South came to a halt. Id. at 23, 38.

155 Tolnay, supra note 151, at 1214; see also MASSEY & DENTON, supra note 151, at 28–9.
156 MASSEY & DENTON, supra note 151, at 29.
157 Id.
158 Id.

26

in conjunction with intestacy rules do not distinguish between family members who disperse and
lose all meaningful connection to the land and those who maintain meaningful ties to the land. As
noted before, many migrants out of the region during the Great Migration (and their descendants)
unwittingly sell their interests in land in the South to land speculators who then initiate legal
proceedings that force a sale of the entire family’s landholdings. The distant relatives
geographically removed from the land are almost never cognizant that the fractional interests they
sell will be used as a lever to force their distant relations off of family land.

27

3. POLITICAL AND PROPERTY THEORY
Together with comparative studies supports the view that land can provide
the basis for community and ground greater democratic participation

3.1 VISIONS OF PARTICIPATORY DEMOCRACY IN A RACIALLY MIXED SOCIETY

Although emancipated from slavery over one hundred years ago, African Americans never realized
the full benefits of citizenship as measured by the ability to participate meaningfully in the political
and economic life of the country. Undeniably, the history of struggle has been dynamic and
uneven. There have been periods in which African Americans as a group, often with the assistance
of others committed to social justice, acquired greater social capital and thereby improved their
social and economic status. Yet in other periods of retrenchment the wider society scaled back its
commitment to bringing African Americans into the mainstream of American life.

Iris Marion Young asserts that participatory democracy has both instrumental and intrinsic
value. Instrumentally, involvement in the political life of one’s community is the best way for
citizens to express their views and to ensure that their interests are not crowded out by others.1

59

In terms of the intrinsic value of democracy, Young draws upon the work of Rousseau and John
Stuart Mill to emphasize the development of human capacities for self-government and social
relation:

Having and exercising the opportunity to participate in making collective decisions that affect one’s
actions or the conditions of one’s actions fosters the development of capacities for thinking about
one’s own needs in relation to the needs of others, taking an interest in the relation of others to
social institutions, reassuring and being articulate and persuasive, and so on. Only such
participation, moreover, can give persons a sense of active relation to social institutions and
processes.1

60

In the past half century, those fighting to change the persistent, subordinate status of African
Americans have worked hard to develop mechanisms that would provide African Americans with
more ability to participate meaningfully in electoral politics. Elections and voting rights, however,
have not always been the central strategy for empowerment within the American black community.
Since emancipation, black leaders advanced sometimes-conflicting strategies to promote the
group’s uplift, with the conflict between integration and nationalist or self-determination strategies.

In the nineteenth century, Frederick Douglass contended that black Americans had no desire
to form their own state or to return to Africa; once freed, he believed black Americans would be
quickly assimilated into the mainstream of society.161 By contrast, Martin Delany, the leading black
nationalist of that time, maintained that any free people needed to be part of the group that ruled
society. Yet he insisted that entrenched racism would prevent black people from ever joining the

159 IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 91 (1990).
160 Id.
161 Frederick Douglass, The Future of the Colored Race, in IV LIFE AND WRITINGS 193–96 (Phillip S. Foner ed.,

1950).

28

ruling elite in America. Therefore, at one stage of his career Delany advocated that black people
in America should emigrate to Central and South America, as well as the West Indies.162 Following
emancipation, most freed slaves wanted to become landowners even more than they wanted voting
rights or education.163 Landownership meant economic security and self-determination.

The conflicting ideologies of nationalists and integrationists converged during the civil rights
movement and, especially, with the passage of the Voting Rights Act of 1965.164 Black people
along a wide ideological spectrum embraced the view that fundamental change in the social and
economic agenda of the country could be achieved through the ballot box. Many assumed that
increased voting in the black community would result in the election of more black officials, who
in turn would be the engines of political transformation.165 Despite the energy that African
Americans invested in trying to reshape the political system, African Americans continue to be
severely underrepresented in politics.

By democratic principle, it is unjust that minorities do not play a substantial role in the
political decision-making process. Yet, the American liberal tradition, individualistic in theory,
views politics as concerning the relationship between an individual and the state, “with little or no
room for groups in-between, other than as transient outgrowths of the combination of individual
interests.”166 This individualistic focus provides little space for group-level concerns of
minorities.167 This explains the resistance to opening up the American political system through
mechanisms such as proportional representation or cumulative voting that would empower
groups.168 Lani Guinier was pilloried by conservatives in politics and the media for simply
suggesting that some alternative voting system such as one based on cumulative voting— a
commonly used voting mechanism in many corporations that is used to protect minority
shareholders— should be adopted in order that racial minorities may more effectively participate
in politics.

Majority groups often worry that granting rights to minority groups qua groups will fragment
the national fabric and undermine national unity.169 Perhaps with this in mind, John Stuart Mill
claimed it would be “next to impossible” for real democracy to flourish in an ethnically diverse
society.170 Mill’s response was to argue that a country’s boundaries be drawn along ethnic lines
and that national minorities be granted the right to secede.171 These are not realistic alternatives

162 MARTIN DELANY, THE CONDITION, ELEVATION, EMIGRATION AND DESTINY OF THE COLORED PEOPLE OF

THE UNITED STATES 184 (1968) (1st ed. 1852).
163 RONALD TAKAKI, A DIFFERENT MIRROR: A HISTORY OF MULTICULTURAL AMERICA 131–32 (1993).
164 LANI GUINIER, THE TYRANNY OF THE MAJORITY 45 (1994).
165 The assumption that black elected officials as a group would push programs that held the promise for

fundamental social and economic change that would inure to the benefit of the wider black community has not been borne
out in many instances. See Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413,
1448 (1991).

166 Jacob Levy, Classifying Cultural Rights, in NOMOS XXXIX 22 (Ian Shapiro and Will Kymlicka eds., 1997).
167 HANNUM, supra note 26, at 56.
168 HANNA F. PITKIN, THE CONCEPT OF REPRESENTATION (1967).
169 HANNUM, supra note 26, at 71.
170 JOHN STUART MILL, UTILITARIANISM, LIBERTY AND REPRESENTATIVE GOVERNMENT 361 (E.P. Dutton 1910).
171 Id. at 362, 366.

29

for ethnically pluralistic western societies. The project for modern democracies is to learn to thrive
on heterogeneity.

Faith in assimilation has triumphed at the level of constitutional principle, yet ethnic minorities
continue to face obstacles to meaningful participation in ostensibly democratic states, including
the United States.172 Despite noticeable gains since the 1960s, for example, African Americans
today hold less than 2 percent of elected offices throughout the country.173 To a striking degree,
large portions of the American landscape remain geographically segregated by race. In fact,
Douglass Massey and Nancy Denton show that racial segregation of housing has worsened in this
century. One-third of African Americans live in areas so intensely segregated that they are almost
completely isolated from other groups in society, rendering them amongst “the most isolated
people on earth.”174

3.2 LANDOWNERSHIP IN A PARTICIPATORY DEMOCRACY

Just as participatory democracy has both instrumental and intrinsic value, an enduring liberal
political tradition sees landownership as a vehicle for human development, not just an instrument
for economic development.175 Yet the structure of the common law tenancy in common is
undemocratic. Minority interest holders may terminate the tenancy against the wishes of the
majority interest holders. In these instances, the minority interest holders have more power than
their proportional share of the tenancy suggests is fair. Although many property theorists connect
property rights and political and economic participation in society, few have specifically
considered, however, how minority landownership might make democracy more inclusive.

John Locke maintains that property ownership is essential to civil society.176 People enter into
political or civil societies primarily to preserve property, he argues, defined in this context as
“Lives, Liberties and Estates.”177 Elsewhere, Locke asserts that the “chief matter of property is
the Earth itself,” that is, land.178 Locke’s theory of the social compact assumes that those with
valuable material possessions— most importantly land— have the strongest incentive to enter into
agreements to establish governments given their desire to preserve their property. Further, once
governments are formed, people should retain their property if civil society is to serve its ends.
Locke asserts:

The Supream Power cannot take from any Man any part of His property without his own consent.
For the preservation of Property being the end of Government, and that for which Men enter into

172 Id. at 30.
173 OLIVER & SHAPIRO, supra note 20, at 24.
174 MASSEY & DENTON, supra note 151, at 77.
175 See Robert Browne, The Plight of Black Ownership, 2 S. EXPOSURE 112, 115 (1974); see also Winston P.

Nagan, Resource Allocation: Land and Human Rights in a New South Africa (unpublished, undated paper on file with
author).

176 JOHN LOCKE, TWO TREATISES OF GOVERNMENT 111 (Peter Laslett ed., Cambridge Univ. Press 1967) (3d. ed.
1698).

177 Id. at 368, § 123. In the Second Treatise Locke uses at times both a more materialistic definition of property
and the more expansive definition referred to above.

178 Id. at 308–9, § 32.

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Society, it necessarily supposes and requires, that the People should have Property, without which
they must be suppos’d to lose that by entring into Society, which was the end for which they entered
into it, too gross an absurdity for any Man to own. Men therefore in Society having Property, they
have such a right to the goods, which by the Law of the Community are theirs, that no Body hath
a right to take their substance, or any part of it from them, without their own consent; without this,
they have no Property at all.179

Ownership, therefore, also means a stake in sustaining a viable political sphere.

Locke qualifies the right to private property in two ways. First, he maintains that an
individual’s right to property is subject to the principle that there must be “enough, and as good
left in common for others.”180 Second, Locke maintains that an individual cannot take more
property than he can use.181 Even so, Locke’s principal interest lay in setting forth moral and
philosophical arguments to support the right to private property, and his ideas were used by
Anglo-American politicians to support the property rights of the rich, irrespective of these
provisos.182 Moreover, Locke’s arguments for property address the conditions under which
individuals initially acquire property rights that become subject to governmental protection, but
do not ask whether the distribution of property at any moment in time reflects the fact that
different individuals and groups possess unequal power to acquire property in the first instance.183

Locke’s political theory of property powerfully influenced the framers of the U.S.
Constitution, as well as early American jurists.184 Thomas Jefferson, for one, fully accepted
Locke’s view of the sanctity of private property rights.185 Jefferson, however, was relatively more
concerned about democratic principles than Locke, a concern that shaped his civic republican view
of the proper distribution of land. According to republicans, democracy works best if citizens are
enlightened and independent. For Jefferson, private property was “a corollary to democracy”
because landownership allowed men to achieve economic security and to develop self-reliance.186

Believing that the “small land holders are the most precious part of a state,”187 Jefferson thought
that as many men as possible should own land. Jefferson’s argument for widely distributed
property is also linked to his view of the good society. Agriculture, for Jefferson, held sociological
and moral value that was even more important than its economic value.188 Freed from the
corrupting influence of industry and commerce, rural smallholds could help develop virtues that
would protect the moral fiber of the country and ensure its longevity.189

179 Id. at 378, §138.
180 Id. at 306, ¶ 27.
181 Id., ¶ 30.
182 A. Whitney Griswold, The Agrarian Democracy of Thomas Jefferson, 40 AM. POL. SCI. REV. 657, 675 (1946).
183 Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. Rev.

1283, 1466–68 (1996).
184 See, e.g., Johnson v. McIntosh, 21 U.S. 543, 590 (1823).
185 Griswold, supra note 181, at 673. Jefferson was so closely identified with Locke that some of his detractors

accused him of copying Locke’s treatises in drafting the Declaration of Independence. Id. at 674.
186 Id. at 672.
187 Letter from Thomas Jefferson to Rev. James Madison (cousin of President James Madison) (Oct. 28, 1785),

in VIII THE WRITINGS OF THOMAS JEFFERSON 196 (Andrew A. Lipscomb ed., 1903).
188 Id. at 667.
189 IV THE WRITINGS OF THOMAS JEFFERSON 85–6 (Andrew A. Lipscomb ed., 1903).

31

One hundred fifty years later in 1935, in his book Black Reconstruction,190 W.E.B. Du Bois
focused upon the failure of the government to allocate land to the freedmen in explaining the
failure of Reconstruction to build a real democracy. The enfranchisement of black people in the
South after the Civil War was stripped of its liberating potential, he argued, because white
landowners maintained their monopoly of land.191 Although black people used their political power
to establish public school systems, Du Bois asserted that “universal suffrage could not function
without personal freedom, land and education.”192 As a socialist thinker, Du Bois considered
incomplete the popular black demand for private ownership of land (and little else) in the
economic realm.193 But even so, Du Bois believed that black people in possession of a land base
could achieve a measure of economic independence that would give meaning to the right to
vote.194 In the end, according to Du Bois, white resistance to ceding land to blacks, “spelled for
[black people] the continuation of slavery.”195

The self-determination underpinnings of Du Bois’s philosophy were echoed thirty years later
during the height of the civil rights struggle.196 Leaders of the Black Power movement challenged
as misguided the agendas of white liberals and black civil rights leaders. Single-minded efforts to
increase social-welfare spending as a means to achieve social uplift for black people would fall
short, they predicted. Instead, they argued that black people should work toward self-
determination, not just increased participation in mainstream politics. And they believed that more
energy should be spent developing and supporting black institutions controlled by black people.197

Important amongst these were economic institutions that could assure autonomy, just as Jefferson
had argued.

Comparative studies demonstrate the link between land and participation

The political theories of “democratic property” have been tested in social science case studies that
document the links between land and many measures of community well-being and empowerment.

Complex social networks develop around particular pieces of land for communities defined
by continuity rather than mobility. Thus land and place are important to working-class and poor,

190 W.E.B. DU BOIS, BLACK RECONSTRUCTION: AN ESSAY TOWARD A HISTORY OF THE PART WHICH BLACK

FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN AMERICA, 1860–1880 (1935); see also GUNNAR
MYRDAL, AN AMERICAN DILEMMA 225 (1944).

191 DU BOIS, supra note 189, at 619.
192 Id. at 585.
193 Id. at 611.
194 Id. at 624.
195 Id. at 611.
196 See generally STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF

LIBERATION IN AMERICA (1967).
197 Id. at 46, 156. Notwithstanding the radical, public image of the leaders of the black power movement, the

economic philosophy underpinning many of the programs advocated by some of the movement’s leaders echoed the view
of many liberal whites during the Reconstruction period one hundred years earlier. See Myrdal, supra note 189, at 226–
27 (noting that a liberal Southern white politician believed that after emancipation black people should have been given
land instead of being turned over without an economic base “to the mercy of Republican politicians, white and black,
who made political slaves of them”).

32

minority communities in ways not common to mobile, middle-class communities.198 One study of
a working-class, Italian-American community in the West End of Boston displaced in an urban
redevelopment project underscores the point that certain groups need property rights in order to
maintain a healthy sense of group identity. Not only were complex sets of social networks
localized within the particular area of the West End from which the residents were displaced, but
most residents also considered the entire area “as an extension of home” and constructed their
identity around this extended home.

Social science studies demonstrate that in African American communities, too, landownership
promotes community well-being. Landownership has been correlated with increased civic
participation,199 psychological well-being,200 and enhanced sense of community.201 Landownership
can also benefit families and communities, irrespective of any measurable economic benefits to
particular individuals.202 Even those extended community members who “return home” only
periodically may draw psychological strength from the very existence of the rooted community.203

But because those who own land have greater security than those who rent or work for wages,
family landholdings may induce more family members to remain in relative proximity to one
another. The land itself can provide the base upon which to build institutions geared to community
development.204 This focus on land as a base for community infrastructure extrapolates from the
classical liberal view that landownership is uniquely important to the protection of individual
liberty interests. To this end, Robert Ellickson has stated:

“Compared to other resources, land remains a particularly potent safeguard of individual liberty.
Like no other resource, land can provide a physical haven to which a beleaguered individual can
retreat.”205

Just as land can shelter the “beleaguered individual,” it provides a physical base for groups trying
to improve their collective lot.

198 Ernest Norton Tooby, The Interest in Rootedness: Family Relocation and an Approach to Full Indemnity, 21

STAN. L. REV. 800, 814 (1969); Marc Fried, Grieving for a Lost Home: Psychological Costs of Relocation, in URBAN
RENEWAL, THE RECORD AND THE CONTROVERSY 359, 362 (1966) (James Q. Wilson ed., 1966) (hereinafter Fried,
Grieving); Marc Fried and Peggy Fleicher, Some Sources of Residential Satisfaction in an Urban Slum, 27 J. AM. INST.
PLANNERS 305, 311 (1961) (hereinafter Fried & Fleicher, Residential Satisfaction).

199 LESTER M. SALAMON, LAND AND MINORITY ENTERPRISE: THE CRISIS AND THE OPPORTUNITY 42–3 (1976).
200 See cf. Fried, Grieving, supra note197, at 377 (discussing post-relocation depression suffered by those relocated

due to urban renewal projects).
201 Lisa Groger, Tied to Each Other Through Ties to the Land: Informal Support of Black Elders in a Southern

U.S. Community, 7 J. CROSS-CULTURAL GERONTOLOGY 205 (1992); see also SALAMON, supra note 198, at 29–53;
Browne, supra note 30, at 121.

202 Cf. Fried & Fleicher, Residential Satisfaction, supra note 197, at 315; Fried, Grieving, supra note 197, at 365–
66.

203 THE BLACK RURAL LANDOWNER, supra note 30, at xviii; see also Frank G. Progue, The Mobile Black Family:
Sociological Implications, in THE BLACK RURAL LANDOWNER supra note 30, at 25, 36 (“Landownership . . . becomes
important because it provides an economic base for sociopsychological release and/or identification even for blacks who
have migrated”).

204 Groger, supra note 200, at 209.
205 Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1353 (1993).

33

As indicated, families that own land often build mutually beneficial support systems based
around the land. One study comparing differences in the systems of informal support between
equally poor, landowning and landless elderly black people in the Piedmont region of North
Carolina206 demonstrated that a greater percentage of the children of the sharecroppers moved far
away from their parents (often to northern cities) than did the children of landowners. The elderly
sharecroppers were more often left to fend for themselves.207 By contrast, over two-thirds of the
landed households in the case study lived on “compounds” in which children or other relatives
resided on the land itself or in the immediate vicinity. In these compounds, the children/relatives
and the black elders established “reciprocal exchange relationships” that benefited each person tied
to the land in some meaningful way.

In addition to particular rural black families, whole communities of African Americans have
been strengthened through landownership. Dating back to the early days after the Civil War,
African American families and individuals formed rural land collectives either on their own or with
the assistance of the government. For example, freedmen in Hampton, Virginia, formed the
Lincoln’s Land Association and cooperatively purchased hundreds of acres of land that groups of
families then collectively worked.208 During the Depression, the Resettlement Administration and
the Farm Security Administration established several, rural communities for destitute, low-income
families.209 If measured by a survivorship rate, the African American communities would not
appear to have been very successful; most did not last even a generation. Yet, these communities
greatly improved the life chances of the individuals involved. According to Lester Salamon, many
poor tenants (through lease-purchase agreements) gained the chance to become landowners in the
newly created communities replete with schools, cooperative enterprises, and other community
buildings.210 Many program participants who purchased land expressed increased self-esteem.211

The landowners were also much more active in their communities than were tenants as measured
by such indicia as relative participation in social and religious organizations, voter registration, and
voting turnout.212

The Prairie Farms project in western Alabama is a good example of the community-building
potential of land-based communities. The Resettlement Administration designed this program to
settle destitute and low-income tenant families on approximately 3,000 acres in Macon County,
Alabama.213 Each of the 34 families that were settled at Prairie Farms was provided with a
farmstead. The cooperative living at Prairie Farms “centered on farming, and the education and
social activities that revolved around agriculture.”214 The farm families shared livestock for

206 Groger, supra note 200, at 209.
207 Id. at 209–10.
208 FONER, supra note 3, at 106.
209 SIDNEY BALDWIN, POVERTY AND POLITICS: THE RISE AND DECLINE OF THE FARM SECURITY ADMINISTRATION

92, 111–113 (1968).
210 SALAMON, supra note 198, at 31–2.
211 Id. at 41.
212 Id. at 42–3.
213 Robert E. Zabawa & Sarah T. Warren, From Company to Community: Agricultural Community Development

in Macon County, Alabama, 1881 to the New Deal, 2 AGRIC. HIST. 459, 477 (1998).
214 Id. at 480.

34

breeding, set aside a community pasture for common use, and cooperatively used certain
machinery and equipment.

The newly constructed school became a major center of community life at Prairie Farms. As
the first school to provide a high school education for black students in the surrounding area, the
school enrolled 213 students from the very beginning although it was built with a capacity of just
175 students.215 The school offered the children many enrichment opportunities including the
ability to join the school newspaper, a student cooperative, and a number of clubs ranging from
the 4-H club to the nature club.216 Further, the school held adult education classes focusing on
agriculture.217 The school also doubled as the community center where meetings, plays, religious
services, and public health programs were held.218

Although many of the African American communities formed by the Resettlement
Administration and the Farm Security Administration did not endure, one must remember that
these projects were started during the Depression, a particularly turbulent period of history.219 And
the African American resettlement communities suffered from differential treatment in the form
of lesser funding than white farm-settlement communities established during the same period by
the same governmental programs. However, the people who had the opportunity to live within
these communities clearly benefited. As Robert Zabawa and Sarah Warren have stated:

[Prairie Farms] was an exercise in the community based on change. There was a change in the
relationship to the land: from tenancy and shares to ownership. There was a change in the
relationship to production: from cotton to diversified farming. There was a change in the economic
relationships: from dependency on the plantation owner and store to cooperative buying and selling.
There was a change in the relationship to education: from sporadic elementary education to high
school level offerings and adult education. And there was a change in the relationship to
community: from cabins scattered along an eroded wasteland, to new houses in a farming
community with a health and community center. This is what Prairie Farms had to offer.220

Another real-world perspective on the importance of landownership to disadvantaged
communities can be gleaned from comparing indigenous populations in North America. Despite
their relatively impoverished status, Native Americans within the United States are more politically
self-determining and economically developed than Indians in either Canada or Mexico.221 Studies
of American Indian communities demonstrate a strong link between self-governance and social and
economic development.222 With reservations that dwarf the landholdings of most Indian groups

215 Id. at 484.
216 Id.
217 Id. at 485.
218 Id. at 484–85.
219 Id. at 486.
220 Id.
221 Anthony DePalma, Three Countries Face Their Indians, N.Y. TIMES, Dec. 15, 1996, at E3.
222 Stephen Cornell and Joseph P. Kalt, Reloading the Dice: Improving the Chances for Economic Development

on American Indian Reservations, in WHAT CAN TRIBES DO? STRATEGIES AND INSTITUTIONS IN AMERICAN INDIAN
ECONOMIC DEVELOPMENT (Stephen Cornell & Joseph P. Kalt eds., 1992); see also DePalma, supra note 220.

35

in Canada and Mexico, American Indian tribes in the United States have a base upon which their
sovereign powers can be meaningfully expressed and organized.223

The historical record of federal Indian policy amply demonstrates the link between Native
American social welfare and landholding. With the passage of the Dawes Act in 1887, Congress
shifted its Indian policy from containing Indians within reservations to promoting assimilation of
Indians into American society, principally through transferring huge tracts of Indian land to whites
and forcing private ownership upon individual Indians.224 Just as previous, smaller-scale
experiments in allotting Indian land had largely failed to achieve their stated goals,225 widespread
application of the allotment policy under the Dawes Act devastated many Native American
communities.226

Native Americans lost millions of acres of land that was declared surplus under the Dawes
Act.227 In addition, two-thirds of all the land allotted to individual Indians under the Dawes Act—
roughly 27 million acres— ended up in non-Indian hands by 1934, mostly by means of sale,
mortgage foreclosure, and tax sale, after restrictions on alienation initially built into the Dawes Act
were rapidly stripped away, beginning with passage of the Burke Act in 1906.228 Although the
destruction of communal tenure and its impact on Native American communities under the Dawes
Act is well documented, the plight of those Indians who lost their individual allotments was no less
damning of the policy. On most reservations that were allotted,229 between 75 and 100 percent of
Indians who received fee patents lost their lands in short measure, and the overwhelming majority
of these Indians became impoverished.230 Although the Dawes Act was lauded upon its enactment
as a vehicle to civilize Indians through private property ownership,231 as land quickly passed out
of Indian hands and these Indians slipped into poverty, champions of the allotment policy shifted
their support to grounds of social Darwinism. Impoverished Indians would be forced to learn the
value of hard work and money.232

223 Cornell & Kalt, supra note 221.
224 From enactment of the Dawes Act in 1887 to the Congressional repudiation of the allotment policy in 1934,

approximately 90 million acres of land passed out of Native American control. COHEN’S HANDBOOK OF FEDERAL LAW,
supra note 58, at 138.

225 Royster, supra note 16, at 9.
226 One author who has reviewed the history of the Indian Claims Commission has stated that the allotment policy

was a “disaster second only to the original onslaught of the Europeans” as it pertained to Indian cultural integrity.
MICHAEL LIEDER & JACK PAGE, WILD JUSTICE: THE PEOPLE OF GERONIMO V. THE UNITED STATES 77 (1997).

227 The federal government appropriated approximately 60 million acres of land from Native American people
under the surplus land provisions of the Dawes Act— 38 million in outright cessions and an additional 22 million under
provisions that allowed non-Indians to homestead on 44 reservations. 1 AMERICAN INDIAN POLICY REVIEW COMM.,
FINAL REPORT 309 (1977).

228 COHEN’S HANDBOOK OF FEDERAL LAW, supra note 58, at 138. See also STEPHEN CORNELL, THE RETURN OF
THE NATIVE 118 (1988).

229 During the allotment period, 118 reservations were allotted. 1 AMERICAN INDIAN POLICY REVIEW COMM.,
supra note 226, at 309.

230 MCDONNELL, supra note 17 at 106–7, 112–3; INSTITUTE FOR GOVERNMENT RESEARCH, THE PROBLEM OF
INDIAN ADMINISTRATION 460–61 (Lewis Meriam, technical dir., 1928) [hereinafter the Meriam Report].

231 Royster, supra note 16, at 9.
232 MCDONNELL, supra note 17, at 107, 114–15.

36

The Catawba tribe provides a poignant example of the fundamental importance of
landownership. Prior to contact with white settlers, the Catawbas occupied a vast tract of land in
an area that now constitutes much of present-day North and South Carolina.233 Under the terms
of two treaties— executed in 1760 and 1763, respectively— between the tribe and the King of
England, the Catawbas relinquished aboriginal territory in exchange for undisturbed ownership of
a 144,000-acre tract of land located within South Carolina.

After the Revolutionary War, South Carolina acceded to pressures from land-hungry white
settlers and enacted a series of statutes authorizing non-Indians to lease Catawba land in
contravention of the Nonintercourse Act.234 At the time of the first leases with non-Indians, the
Catawbas were “‘then strong and felt themselves in their own greatness’”;235 by the 1830s,
practically all of the land reserved to the tribe under treaty had been leased to non-Indians on terms
highly disadvantageous to the Catawbas.236 Like so many other Indian tribes, the once-strong
Catawbas were reduced to a pathetic shadow of their former selves 30 years after first transferring
some of their property rights to white settlers. In a “state of starvation and distress,” the tribe
finally acquiesced to South Carolina’s repeated efforts to purchase all of their land.2

37

Just as the loss of a land base contributed to the demise of the Catawba tribe, the Catawbas
experienced a resurgence after the federal government— concerned about the tribe’s sinking
fortunes238— placed into trust approximately 3,500 acres of land for their benefit in the 1940s.239

From the brink of starvation, the Catawbas recovered so rapidly that within fifteen years of

233 See South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 500 (1986).
234 Id. at 513–14; the Nonintercourse Act, Act of Mar. 1, 1793, § 8, 1 Stat. 330, is codified as reenacted and

amended at 25 U.S.C. § 177. The Nonintercourse Act prohibited any “claims” to protected land in addition to prohibiting
outright purchases of such land by entities other than the federal government.

235 Catawba Indian Tribe, 476 U.S. at 514.
236 Id. (“rents were ‘generally paid in old horses, old cows or bed quilts and clothes, at prices that the whites set

on the articles taken.’”) The Catawbas’ land bargain was consistent with the overall experience of Indian tribes who
rarely were given much value for their land cessions or lease agreements. See FRANCIS PAUL PRUCHA, AMERICAN
INDIAN TREATIES (1994); see also ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 325, 339 (J.P. Mayer ed. &
George Lawrence trans., 1969) (stating that “Americans cheaply acquired whole provinces which the richest sovereigns
of Europe could not afford to buy”); Legislative Documents, 21st Cong., No. 277, p. 6 (1830) (“Up to the present time
so invariable has been the value of certain causes, first in diminishing the value of forest lands to the Indians, and
secondly in disposing them to sell readily, that the plan of buying their right of occupancy has never threatened to retard,
in any perceptible degree, the prosperity of any of the States”).

237 The Catawba experience is consistent with the experience of those Indians who lost land allotted to them under
the Dawes Act. The overwhelming majority of Indians who were not able to maintain ownership of their allotments found
themselves in dire poverty. MCDONNELL, supra note 17, at 120.

238 Catawba Indian Tribe, 476 U.S. at 502, n. 7. By 1930, the tribe’s population had been depleted by two-thirds
and a Senate subcommittee holding field hearings in South Carolina “‘found some hundred and seventy-five remnants
of this band located on a tract of practically barren rock and gradually starving to death.’” Id. (quoting from Division of
Tribal Assets of Catawba Indian Tribe, Hearings on H.R. 6128, Before the Subcomm. on Indian Affairs of the House
Comm. on Interior and Insular Affairs, 80th Cong., 1st Sess. (unpublished), Insert 5, at 3 (Minutes of State and Federal
Conference, Oct. 21, 1958), quoting letter from Senator Thomas to Commissioner Rhoads (Feb. 10, 1932)).

239 In addition to placing this land in trust for the Catawbas, the federal government agreed to make a specified
annual monetary contribution to the tribe and “to assist the Tribe with education, medical benefits, and economic
development.” Catawba Indian Tribe, 476 U.S. at 502, n. 7.

37

obtaining a new land base and various other forms of federal assistance,240 the government
determined that the Catawbas were one of the twelve tribes in the period between 1954 and
1962241 who were suitable candidates for the withdrawal of federal assistance and services under
the termination policy.242

240 See S. Rep. No. 863, 80th Cong., 1st Sess. 3 (1959) (“The Catawba Indians have advanced economically . . .

during the past fourteen years, and have now reached a position that is comparable to their non-Indian neighbors”).
241 FRANCIS PAUL PRUCHA, THE GREAT FATHER 1048 (1984).
242 The federal government’s federal Indian policy has been characterized by distinct periods stamped with

underlying ideologies that oscillate back and forth on a spectrum that at one end recognizes the benefits of Indian self-
determination to some limited degree and on the other end seeks to assimilate all Indians— physically, spiritually, and
culturally— into the majority society. In marked contrast to the federal government’s policy that made allowances for
Indian self-determination during the New Deal, the architects of the termination policy that was ushered in with passage
of H.R. Con. Res. 108 on August 1, 1953, believed that American Indians should completely assimilate into the majority
culture.

38

4. LEGAL ACKNOWLEDGMENT OF THE LINK BETWEEN
LAND AND COMMUNITY

Though the theoretical link predicted between landownership and enhanced minority civic
participation has been proven on the ground, legal recognition of the importance of minority
landholding to building community and increasing democratic participation has been “fragmentary”
at best.243 Only federal Indian law explicitly recognizes that promoting landownership is necessary
to self-determination for minority groups who otherwise face systematic discrimination. Outside
of the Indian context, neither common law nor statutes acknowledge the value of minority
landownership.

This section illustrates the degree to which the law has supported (or not supported) minority
landownership by considering the intersection of minority landownership and the law in two
instances: (1) current federal Indian law policy and case law, and (2) Fifth Amendment takings
jurisprudence. Further, and by way of comparison, this section considers the lawfulness of
restraints on alienation as they pertain to relatively newer forms of common property. In the
context of condominiums, housing cooperatives, and similar forms of residential ownership both
statutory and common law permit groups to restrain individual rights in order to promote
“community.”

4.1 MODERN FEDERAL INDIAN POLICY RECOGNIZES THAT INDIAN
LANDOWNERSHIP PROMOTES INDIAN CULTURE AND COMMUNITY,
DESPITE THE FEDERAL JUDICIARY’S TEPID VINDICATION OF THIS POLICY

In the past century, federal Indian policy has oscillated between recognition of tribes as sovereign
entities with primary responsibility for managing their resources and attempts to strip Indians of
their land and cultural resources in order to facilitate assimilation.244 The modern policy, set largely
by Congress and the president,245 seeks to promote tribal autonomy. President Lyndon Johnson
helped steer away from the assimilationist policies of termination and relocation that predominated
in the 1940s and 1950s. Yet President Richard Nixon is credited with setting a course that
emphasizes “tribal self-determination, sovereignty, and control over Indian country.”246 President
Bill Clinton publicly supports a “government-to-government” relationship between the United
States and Indian tribes and Congress now promotes greater tribal control of Indian land.247

243 Cf. Radin, supra note 18, at 1006.
244 Royster, supra note 16, at 7–20; Boisclair v. Superior Court of San Diego County (Imperial Granite Co., Real

Party in Interest), 801 P.2d 305, 310 (Cal. 1990).
245 Royster, supra note 16, at 20.
246 Id. at 19.
247 Id.

39

Today, federal Indian policy supports retention of Indian lands in Indian hands. The roots of
this policy lie in the Indian Reorganization Act of 1934248 and the philosophy of John Collier, the
charismatic commissioner of Indian Affairs who served in this role between 1933 and 1945.249 In
developing a program that became known as the Indian New Deal,250 Collier drew upon the 1928
Meriam Report.251 This report set forth “in scientific survey style, the staggering degree of
poverty, ill health, poor education, and community disorganization that generally prevailed on the
reservations.”252 The report denounced the allotment program, supported efforts to strengthen
Indian communities, and advocated increased protection of Indian property rights.253

Consistent with these recommendations, specific provisions of the Indian Reorganization Act
nullified and reversed the federal government’s century-old mission to assimilate Native Americans
by breaking up tribal property holdings into individual interests.254 Section one of the act ends any
further allotment of reservations.255 Section two extends trust restrictions on allotments
indefinitely.256 Section five authorizes the Secretary of the Interior to acquire additional lands to
be put into trust for Indian tribes.257 Since implementation of these provisions, Native American
landholdings have increased moderately.258

Today, American Indian land retention is promoted by a number of federal statutes that
subject much of tribal and individually owned land to restraints on alienation. The Indian
Nonintercourse Act,259 25 U.S.C. § 462260 and 25 U.S.C. § 464,261 are amongst the more
important such statutes.262 Congress even maintained the federal restraints on alienation when it

248 Indian Reorganization Act of June 18, 1934, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461-495

(1988)).
249 CORNELL, supra note 227, at 93.
250 Id.
2

51

The Meriam Report, supra note 229.
252 Id. at 90.
253 Id. at 460–61.
254 CORNELL, supra note 227, at 93.
255 Ch. 576, § 1, 48 Stat. 984 (codified at 25 U.S.C. § 461 (1988)).
256 Ch. 576, § 2, 48 Stat. 984 (codified at 25 U.S.C. § 462 (1988)).
257 Ch. 576, § 5, 48 Stat. 984 (codified at 25 U.S.C. § 465 (1988)).
258 In addition to land that the government has taken into trust on behalf of Native American tribes, land has been

restored to various tribes through legislative resolution of land claims. The return of the 130,000 acres of land to the
Pueblo of Taos and the resolution of the Passamaquoddy and Penobscot land claims in Maine (under which each tribe
was awarded 150,000 acres of land to be placed into trust) represent two of the better-known legislative resolutions of
Indian land claims. CLINTON ET AL., AMERICAN INDIAN LAW 737 (1991).

259 25 U.S.C. § 177 (1999). The Nonintercourse Act provides in pertinent part that:
“No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian
nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or
convention entered into pursuant to the Constitution.”
260 25 U.S.C. § 462 (1999).
261 25 U.S.C. § 464 (1999).
262 Boisclair v. Superior Court of San Diego County (Imperial Granite Co., Real Party in Interest), 801 P.2d 305,

309 (Cal. 1990).

40

enacted Public Law 280 in 1953, which permitted states to assume civil and criminal jurisdiction
over Indian country.263

The rationale for federal restraints on alienation of Indian land has developed over time. In
order to federalize the process of Indian land cessions, Congress first imposed pervasive restraints
on alienation of Indian land in 1790 in the first in a series of Trade and Intercourse Acts.264 Ever
since, restraints on alienation of Indian land have been a cornerstone of federal Indian policy.2

65

When restraints on alienation were first established 200 years ago, Congress was not primarily
concerned with slowing the loss of Indian land.266 Tribes were largely a pawn in a power struggle
for supremacy between the federal government and the states; the shifting of power from the states
to the federal government in the area of Indian affairs represents one step in the federal
government’s gradual rise to political supremacy.267 In addition to consolidating its power in the
area of Indian affairs as provided for in the Constitution,268 Congress enacted the Nonintercourse
Act in order prevent Indian uprisings269 because under the Articles of Confederation, the “duplicity

263 Act of Aug. 15, 1953, ch. 505, 67 Stat. 588-90. Congress carved out an exception to the offer of civil

jurisdiction. Section 1360(b) states:
Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal
property, including water rights, belonging to any Indian tribe, band, or community that is held in trust by the
United States or is subject to a restriction against alienation imposed by the United States; or shall authorize
regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute
or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in
probate proceedings or otherwise, the ownership or right to possession of such property or any interest
therein.
264 Act of July 22, 1790, ch. 33, § 4, 1 Stat. 137. The 1790 Act provided the following:
That no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be
valid to any person or persons, or to any state, whether having the right of preemption to such lands or not,
unless the same shall be made and duly executed at some public treaty, held under the authority of the United
States.

The 1790 Act was a temporary measure and was reenacted— also for limited periods— in later years. See, Act of March
1, 1793, ch. 19, 1 Stat. 329; Act of May 19, 1796, ch. 30, 1 Stat. 469; and Act of March 3, 1799, ch. 46, 1 Stat. 743.
Congress enacted a permanent Nonintercourse Act in 1802. Act of March 30, 1802, ch. 13, 2 Stat. 139. The 1802 Act,
as amended, was largely incorporated in the 1834 Act, the final in the series of such acts. Act of June 30, 1834, ch. 161,
§ 12, 4 Stat. 730.

265 Robert N. Clinton and Margaret Tobey Hotopp, Judicial Enforcement of the Federal Restraints on Alienation
of Indian Land: The Origins of the Eastern Land Claims, 31 ME. L. REV. 17, 19, 38 (1979). See also Mountain States
Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 276, 105 S. Ct. 2587, 2608 (1985) (Brennan, J.
dissenting); County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 247–8 (1985); Oneida Indian Nation
of New York v. County of Oneida, 414 U.S. 661, 667–70 (1974); United States v. Creek Nation, 295 U.S. 103, 109–11
(1935); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831); Johnson and Graham’s Lessee v. McIntosh, 8 Wheat. 543, 591,
604 (1823).

266 Clinton & Hotopp, supra note 264, at 36.
267 Id. at 88.
268 See U.S. Const., Art. I, § 8, cl. 3: “The Congress shall have Power . . . To Regulate Commerce . . . with the

Indian Tribes. . . .”
269 Mashpee Tribe v. Watt, 542 F. Supp. 797, 803 (D. Mass. 1982), aff’d 707 F.2d 23 (1st Cir. 1983), cert. denied,

469 U.S. 853 (1984); see also COHEN’S HANDBOOK OF FEDERAL LAW, supra note 58, at 508; Clinton & Hotopp, supra
note 264, at 36; FRANCIS PAUL PRUCHA, AMERICAN INDIAN POLICY IN THE FORMATIVE YEARS 42–50 (1970).

41

and lack of uniformity in the states’ handling of Indian land cessions were primary sources of
Indian hostilities.”270

In this century courts have construed the Nonintercourse Act and other restraints on
alienation of Indian land as designed to protect Indians from being dispossessed of their land by
parties other than the federal government.271 However, judges in earlier cases often considered
whether restraints on alienation of Indian land were applicable in a particular case against the
backdrop of “the Government’s paternal policy toward the Indians. . . .”272 These judges viewed
Indians as doltish, incompetent, or— at least— incapable of managing their own affairs. For
example, in United States v. Candelaria,273 the Supreme Court considered, inter alia, whether
land owned by the Pueblo Indians of New Mexico was subject to federal restraints on alienation.
In determining that the lands owned by the Pueblos in fee simple were subject to the restraints, the
Court first considered the purpose of the statutory restraints, including those set forth in the
Nonintercourse Act. The court stated that:

“Many provisions have been enacted by Congress— some general and others special— to prevent
the Government’s Indian wards from improvidently disposing of their lands and becoming homeless
public charges.”274

Next, the Court considered whether the Pueblo— who owned their land in fee simple, unlike many
other tribes— were subject to the Nonintercourse Act by asking whether the Pueblo were capable
enough to fend off those who might dispossess them of their land. The Court viewed the Pueblo
as different from the “nomadic and savage Indians then living in New Mexico,”275 but as markedly
inferior to more advanced races. The Court characterized the Pueblos as follows:

“Although sedentary, industrious and disposed to peace, they are Indians in race, customs and
domestic government, always have lived in isolated communities, and are a simple, uninformed
people, ill-prepared to cope with the intelligence and greed of other races.”276

Based on this obviously racist characterization, the Court subjected the Pueblos’ landholdings to
the federal restraints.277

270 Clinton & Hotopp, supra note 264, at 36.
271 Cf. id. at 37.
272 United States v. Minnesota, 113 F.2d 770, 773 (8th Cir. 1940).
273 271 U.S. 432 (1925).
274 Id. at 441.
275 Id. at 442.
276 Id.
277 Federal courts demonstrated this same paternal attitude toward individual Indians who held allotments subject

to restraints on alienation. In United States v. Debell, 227 F. 775 (8th Cir. 1915), the Eighth Circuit Court voided a sale
of an allotment from an illiterate Indian woman to a white speculator. The court described the purposes of the federal
restraints as follows:

The chief purpose and main object of the restriction upon alienation is not to prevent the incompetent Indian
from selling his land for a price too low, but to prevent him from selling it at all, to the end that he shall be
prevented from losing, giving away, or squandering its proceeds and thus be left dependent upon the
government or upon charity for his support.

Id. at 776.

42

Federal courts no longer claim that restraints on alienation are necessary to protect lowly
Indians from making improvident decisions. Instead, according to some judges, the restraints
remain in place because policymakers believe that a substantial land base must be maintained in
order for Indians to preserve their culture and for Indian communities to exercise self-
determination.278 In this light, land represents more than a fungible commodity capable of creating
wealth for individual Indians. Indian land is not to be subject to the full force of the market
because it represents a patrimony or political heritage. As one commentator has stated:

If the only purpose for federal restrictions were “to protect the Indians from themselves,” the
character of the restrictions would be transitory, ceasing when the trust beneficiary had become
sufficiently “educated” or “assimilated” to stand alone. Moreover, there would be less objection to
transmuting the character of the trust; reservation land could be liquidated into money or corporate
securities, for example, so long as the Secretary monitored the fairness of the exchange and
continued to administer the new trust corpus to ensure that no waste occurred. If, rather, the
objective of the federal trust responsibility is to provide a land and resource base for a distinct
Indian society as long as tribes wish to preserve that society, sale of reservation land should not take
place, even at a fair price, or at least should be tightly controlled.279

Although a great portion of the American Indian landholdings remain subject to federal restraints
on alienation, Congress has unilateral power to remove the restrictions on tribal or individually
owned land.280 American Indians lost a great deal of land when restrictions were removed during
the allotment era and the termination era. Recently, the Supreme Court has maintained that
congressional transfer of land without restraints on alienation to Alaska Natives indicates that
Congress does not value maintaining these native communities intact.

In Alaska v. Native Village of Venetie Tribal Government,281 the Supreme Court considered
whether the Native Village of Venetie Tribal Government could tax the State of Alaska and a
private contractor for conducting business on tribal land. In order to determine this, the Court had
to decide whether the community of native Neets’aii Gwich’in in Alaska could be considered to
be “dependent Indian communities” under 18U.S.C. § 1151282 after passage of the Alaska Native
Claims Settlement Act (ANCSA).283 Although the Neets’aii Gwich’in’s reservation was revoked
in 1971 pursuant to ANCSA, in 1973, two native corporations formed for the tribe took title to
the former reservation land under a provision in ANCSA that permitted native corporations to do

278 COHEN’S HANDBOOK OF FEDERAL LAW, supra note 58, at 509–10. See also Mountain States Telephone &
Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 278–9, 105 S. Ct. 2587, 2610 (1985) (Brennan, J. dissenting);
Boisclair v. Superior Court, 51 Cal. 3d 1140, 1148 (1990). But see United States v. Michigan, 882 F. Supp. 659, 675
(E.D. Mich. 1995) (“restricting the alienability of land based on the status of the titleholder is founded on the fear of the
consequences of outright ownership . . .”).

279 COHEN’S HANDBOOK OF FEDERAL LAW, supra note 58, at 509–10.
280 Clinton & Hotopp, supra note 264, at 77.
281 522 U.S. 520 (1998).
282 18 U.S.C. § 1151 (1999). Section 1151, in pertinent part, defines “Indian country” as follows:
The term ‘Indian country’ . . . means (a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government . . . , (b) all dependent Indian communities within the borders
of the United States whether within the original or subsequently acquired territory thereof, and whether within
or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
283 Act of Dec. 18, 1971, 85 Stat. 688.

43

so provided that these corporations would forego the statute’s other monetary payments and land
transfers.284

Although the tribe’s land was “exempt from adverse possession claims, real property taxes,
and certain judgments as long as it . . . [was] not sold, leased or developed,”285 ANCSA did not
provide that former reservation land could be acquired by native corporations subject to federal
restraints on alienation. The Court considered the fact that ANCSA did not provide that former
reservation land acquired by a native corporation would be subject to restraints on alienation as
an indication that Congress did not intend to use its power to preserve native communities intact.
The Court stated that:

. . . ANCSA transferred reservation lands to private, state-chartered Native corporations, without
any restraints on alienation or significant use restrictions, and with the goal of avoiding ‘any
permanent racially defined institutions, rights, privileges, or obligations’. By ANCSA’s very design,
Native corporations can immediately convey former reservation lands to non-Natives, and such
corporations are not restricted to using those lands for Indian purposes. Because Congress
contemplated that non-Natives could own the former Venetie Reservation, and because the Tribe
is free to use it for non-Indian purposes, we must conclude that the federal set-aside requirement
is not met.286

Although federal policy now supports Indian landownership, the federal judiciary has not fully
supported the modern policy.287 The courts over the past three decades increasingly conflate
Indian sovereignty and Indian property rights, two concepts that are analytically distinct and are
treated as such in non-Indian contexts.288 In short, the courts recognize Indian power to govern
only the land owned by tribal members or entities, even within the territorial boundaries of the
reservation. Thus, fee ownership of land by tribal members or entities on Indian reservations has
grown in importance as tribes seek to preserve their sovereign powers. In 1989, for example, the
Supreme Court held that tribal governments may not exercise zoning authority over certain fee
land owned by nontribal members located within a reservation.289

The demographic make-up of an Indian reservation can determine not only the extent of a
tribe’s sovereign powers, but in some instances the very physical boundaries of a reservation. In
a series of cases involving allotment-era statutes, federal courts have decided whether Congress
intended to diminish or terminate a reservation by passing surplus land acts that opened
reservations to non-Indian settlers. The legal question raised in diminishment cases “constitutes
a uniquely historical issue”290 given that the drafters of the surplus land acts assumed that Indians

284 Native Village of Venetie, 522 U.S. at 524.
285 Id. at 533.
286 Id. at 532–3.
287 Royster, supra note 15, at 20.
288 Joseph William Singer, Sovereignty and Property, 86 NW. U. L. REV. 1, 24 (1991); Carole Goldberg-Ambrose,

Of Native Americans and Tribal Members: The Impact of Law on Indian Group Life, 28 LAW & SOC’Y REV. 1123,
1126 (1994). The judiciary has also limited tribal sovereignty in cases in which a tribe has attempted to assert jurisdiction
over non-Indians. Id. See also United States v. Mazurie, 419 U.S. 544, 557 (1975) (holding that, within Indian country,
Indian tribes are more than “private, voluntary associations”).

289 Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408 (1989).
290 CLINTON, supra note 7, at 132.

44

would assimilate into society within a generation after the reservations were opened and did not
foresee that the reservations would continue to exist as a result of the New Deal Indian
Reorganization Act.291 Even so, courts have gone through the exercise of “determining”
congressional intent by fine parsing of language used in different surplus land acts.

Aware that an effort to deduce Congress’s intent to diminish or preserve a reservation based
on the contemporaneous record is a largely formalistic exercise untethered from reality, courts
now also examine the “subsequent jurisdictional history,”292 including the demographic
composition of the opened lands.293 At root, the focus in the cases on the demographic make-up
of a community reflects the judiciary’s anxiousness to protect the non-Indian’s “justifiable
expectations” that they should not fall under the jurisdiction of tribal government.294 Where
Indians remain a significant part of the population in the opened part of the reservation, courts
have held that the reservation remained intact.295 In cases where a majority of the population on
the opened land consists of non-Indians, courts have determined that the reservation has been
either diminished or terminated.296 If sovereignty remains the key to Indian economic development,
and courts are increasingly limiting tribal sovereignty and even territory to land owned in fee by
either the tribe or its members, land ownership is vital.297

4.2 IN TAKINGS JURISPRUDENCE, JUDGES DO NOT CONSIDER THE
IMPORTANCE LAND MAY HAVE FOR MINORITY COMMUNITIES IN
CONSIDERING CONDEMNATION

In Fifth Amendment takings jurisprudence, courts have not balanced the public purpose a
governmental entity offers in its bid to condemn property by eminent domain against the
importance that the property holds for rooted communities, whether minority or majority.298 In
1954, the Supreme Court held that a state’s eminent domain power was coterminous with the
state’s police powers.299 Thirty years later, in Hawaii Housing Authority v. Midkiff,300 the Court
held that the exercise of eminent domain power need be rationally related only to achieving a

291 Solem v. Bartlett 465 U.S. 463, 468 (1984).
292 Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604 (1977).
293 Pittsburgh & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir.), cert. denied, 498 U.S. 1012

(1990).
294 Royster, supra note 16, at 70.
295 See, e.g., Solem v. Bartlett, 465 U.S. 463 (1984); Mattz v. Arnett, 412 U.S. 481 (1973); and Seymour v.

Superintendent, 368 U.S. 351 (1962).
296 See, e.g., Hagen v. Utah, 510 U.S. 399 (1994); Rosebud Sioux, 430 U.S. at 584; DeCoteau v. District County

Court, 420 U.S. 425 (1975); and Pittsburgh & Midway Coal Mining, 909 F.2d at 1387. This focus upon the Indian
ownership of land as a key factor in determining the limits of a reservation hearkens back to the pre-1948, judicially
determined, definition of Indian country. See Ash Heep Co. v. United States, 252 U.S. 159 (1920); see also Bates v.
Clark, 95 U.S. 204 (1877).

297 Cf. Stephen Cornell, Pathways From Poverty: Economic Development & Institution Building on American
Indian Reservations, 14 AM. INDIAN CULTURE & RES. 89, 119 (1990).

298 Radin, supra note 18, at 1005; see also 2A JULUIS L. SACKMAN & PATRICK J. ROHAN, NICHOLS ON EMINENT
DOMAIN (rev. 3rd ed. 1997).

299 Berman v. Parker, 348 U.S. 26, 32 (1954).
300 Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984).

45

public purpose, and the means chosen to effect the articulated public purpose be merely rational.301

Together, Berman and Midkiff vest state and federal authorities with almost unlimited power to
condemn property provided the government pays just compensation, no matter whether the
property could be characterized as fungible or “property for personhood.” Further, in comparing
the two cases, in the later Midkiff case the Court focused less attention on the public use rationale.
In Berman the Court made a nominal effort to address the manner in which the community as a
whole may have benefited from the taking;302 in Midkiff the Court did not view a taking that would
transfer property from one private individual to another as inconsistent with the public use
requirement because “‘it is not essential that the entire community, nor even any considerable
portion, . . . directly enjoy or participate in any improvement’” for the taking to be considered for
the public use.303 Of course, the use of the eminent domain power by a governmental entity does
not always signify that land will be distributed away from the poor to the more wealthy; in fact,
the state intervention in Midkiff redistributed land in favor of those with fewer rights in land.

In takings jurisprudence, urban renewal and highway projects highlight the lack of judicial
attention to the value that land may have for minority communities. The urban renewal programs
were initiated first under the Housing Act of 1949;304 several highway projects were undertaken
soon thereafter. Together, these projects displaced a tremendous number of people throughout
the country and devastated poor and minority communities within many different cities.

A finding that an urban renewal or highway program will destroy or severely damage a
community, however, provides no legal basis for halting such a program. In a 1967 case, Nashville
I-40 Steering Committee v. Ellington,305 the district court judge denied an application for a
temporary injunction filed by a community group seeking to halt a highway program that would
adversely impact a mostly African American community in Nashville, Tennessee, despite a finding
that the community’s concerns were legitimate. As the court of appeals noted:

“[T]he blocking of other streets will result in a heavy increase in traffic through the campus of Fisk
University and Meharry Medical College. A public park used predominantly by Negroes will be
destroyed. Many business establishments owned by Negroes will have to be relocated or closed.”306

Relying in part on Berman, the Sixth Circuit held that the courts could not halt the project because
the “minimizing of hardships and adverse economic effects is a problem addressing itself to
engineers, not judges.”307

301 Id. at 241–42.
302 Berman, 348 U.S. at 103 (“It was believed that the piecemeal approach, the removal of individual structures

that were offensive, would be only a palliative. The entire area needed redesigning so that a balanced, integrated plan
could be developed for the region, including not only new homes but also schools, churches, parks, streets, and shopping
centers”).

303 Midkiff, 467 U.S. 229, 244 (quoting Rindge Co. v. Los Angeles, 262 U.S. 700, 707 (1923)).
304 Housing Act of 1949, tit. I, 42 U.S.C. § 1441–64 (1964). The 1949 Housing Act introduced the program of

urban renewal, which was the first governmental program that policymakers knew would lead to a major displacement
of significant numbers of people in cities implementing such a project. Chester W. Hartman, Relocation: Illusory
Promises and No Relief, 57 VA L. REV. 745, 747 n. 8 (1971).

305 387 F.2d 179 (6th Cir. 1967).
306 Id. at 186.
307 Id. at 185.

46

Residential communities, common property, and restrictions on alienation

The body of statutory and common law rules governing the different forms of group ownership
of real property is designed to advance specific economic or social policies. Even in private law
doctrine, by allocating power between individuals and the group, policymakers make certain
tradeoffs between promoting liberty and fairness.308 As applied to some forms of common-law
group ownership, specifically, the tenancy in common, the liberty interests of individuals prevail
as against the ownership group; in other forms of common ownership such as the condominium,
the law enhances the rights of the group as a whole at the expense of the individual. The laws that
have developed to implement these latter policies subject the use and disposition of the property
to group control— whether property owned in common by all the members of the group or
property that individual members of the group own in some measure individually, but acquire
subject to a group-ownership scheme.309 Even in those instances in which groups have the power
to curtail individual property rights of those within the group scheme, the law ensures that these
individuals have the right to exit the group on reasonable terms.

From the initial development of common law rules prohibiting direct restraints on the
alienation of property held in fee simple to the gradual loosening of such rules in certain instances,
this is an area of law heavily determined by public policies. Initially, the rule against restraints on
alienation developed to promote primarily economic ends. As background, establishment of the
right to convey property as one of the essential incidents of fee simple ownership can be traced
to the British Parliament’s enactment of the Statute Quia Emptores in 1290.310 The statute
established the principle of the free alienation of possessory estates and marked the beginning of
the end of the feudal system.311 In the shift from feudalism to market economies, as the free
alienation of land came to be viewed as essential to fostering economic and commercial
development, English courts established common law rules prohibiting direct restraints on
alienation.312 Absolute restraints on the alienation of a fee simple interest, whether labeled as a
disabling, forfeiture, or promissory restraint under the traditional classifications, came to be held
void in all instances.313

308 Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1345 (1993).
309 As the technology of the law has developed ever more sophisticated legal forms of ownership to respond to the

needs of people who would like to live in residential communities of one sort or another, it becomes more difficult to
describe the precise manner in which individuals hold property under many of these forms of ownership merely using
the categories “individual” or “common” ownership. I have used the phrase “property subject to group control” to
capture the notion that— under these forms of ownership— individuals typically agree to cede to the group some of the
rights they would be entitled to as individual property owners in order to further the group-ownership scheme. I have
borrowed the phrase “the technology of the law” from Heinz Klug, who helped flesh out my ideas on the different
treatment that emerging forms of ownership have received under the rule on restraints against alienation.

310 Chianese v. Culley, 397 F. Supp. 1344, 1345 (S.D. Fl. 1975).
311 See, e.g., DUKEMINIER & KRIER, supra note 41, at 152–3.
312 City of Oceanside v. McKenna, 264 Cal. Rptr. 275, 279 n. 4 (Cal. Ct. App. 1989); Seagate Condominium Ass’n

v. Duffy, 330 So. 2d 484, 485 (Fla. Dist. Ct. App. 1976); and RESTATEMENT (FOURTH) OF PROPERTY, 2129–33, 2379–
80 (1944). However, the ascendancy of the principle of free alienation was somewhat counterbalanced by common law
rules that responded to the aristocracy’s desire to transfer their landholdings intact from one generation to another. See
generally, Charles J. Reid, Jr., The Seventeenth-Century Revolution in the English Land Law, 43 CLEV. ST. L. REV.
221, 261–282 (1995).

313 RESTATEMENT (SECOND) OF PROPERTY (DONATIVE TRANSFERS) §§ 4.1-4.3 (1983); see also CUNNINGHAM
ET AL., supra note 36, at § 2.2, at 30.

47

In addition to the predominant economic justification for the rule against restraints on
alienation, some courts and commentators suggest the rule serves a political purpose. Greater
alienability of land serves a decentralized market system that in theory promotes the values of
democracy by preventing concentration of land (and the wealth it represents) in a hereditary
aristocracy.314 Subjecting concentrated wealth in the hands of dynastic families to market pressures
promotes democratic ends. Providing for unrestricted rights of alienation under all circumstances,
however, does not always increase democratic participation, to the extent that such goals are
promoted by landownership. In fact, unfettered rights of alienation may in some circumstances
redistribute property away from people with fewer resources to those with more resources. To this
end, Joseph Singer writes that:

Under some market conditions, alienability may actually concentrate ownership in the hands of the
wealthy since such corporations or individuals are able to bid higher amounts for property and may
thereby induce others to sell. Restraints on alienation of low-income housing, for example, may
serve to ensure its continued availability to poor families.315

The rule against restraints on alienation is policy driven, and “[c]ompeting policy
considerations . . . have, almost from the inception of the rule, caused exceptions to be carved out
of it.”316 According to one court in a leading case, the development of the rules against restraints
on alienation “is not a mathematical science but takes shape at the direction of social and economic
forces in an ever changing society. . . .”317 As it pertains to various forms of group ownership of
real property, the economic policy underlying the dislike for restraints on alienation often collides
with policies or practices that support the social and economic interests of groups or political goals
of civic participation.

The value the law assigns to stable group ownership under a particular form of ownership can
be measured in part by the degree to which the law allows the group to restrict the rights of
individual members to alienate property interests. Depending upon the form of ownership, the law
accords groups greater or lesser ability to restrict the individual member’s powers to alienate. In
more specialized cases, the law may provide one group with more authority than another group
vis-à-vis restricting the right of individual alienation, despite the fact that both groups own
property under the same form of ownership.

Some groups come to own land through consensual agreements, such as condominiums;
others come together through the operation of the law, as in the case of groups that acquire land
under the rules of intestacy. Where common ownership arises by intestacy, the law assigns the
group a form of ownership, the tenancy in common, that is not very “group friendly.” If the law
makes it difficult for a group to change the form of ownership under which it owns property from
one that permits the group little power to restrain the rights of alienation of the group’s individual

314 Burdick v. Burdick, 33 F. Supp. 921, 928 (D.D.C. 1940) (stating that: “Permitting unreasonable restraints on

alienation are inconsistent with the principles of democracy. They are the concomitants of an aristocracy. Such restraints
are the relics of feudal society, are obsolete and are repugnant to our institutions and conditions”).

315 SINGER, supra note 287, at 573.
316 Seagate Condominium Ass’n, 330 So. 2d at 485.
317 Gale v. York Ctr. Community Coop., 171 N.E.2d 30, 33 (Ill. 1960); see also McInerney v. Slights, 1988 Del.

Ch. LEXIS 47 *19 (Civil Action No. 1096-S April 18, 1988) (stating that “the rule against unreasonable restraints on
alienation is based solely on social policy, not on the rights of the party on whom the restraint is imposed”).

48

members to one that is more “group friendly,” the law effectively adjudges stability within the
particular community as unimportant. The same analysis applies to situations in which the law
prevents a group that owns property under a form of ownership that permits few restraints on
alienation from establishing its own set of rules regulating entry and exit into or from the group
that diverge from the default rules under the particular form of ownership. Such barriers to private
ordering also promote unstable ownership.

The following discussion reveals that with respect to condominiums, cooperatives, and similar
forms of residential ownership the law allows property-owning groups to limit the rights of
individual owners to alienate their property interests in order to promote “community.” Judicial
recognition of the overriding value of community in this context contrasts starkly with the
unbounded economic values of individual wealth maximization that drive the common law rules
governing partition of tenancies in common in most circumstances.

In recent times, legislatures and judges have created liberal exceptions to the rule against
restraints on alienation “in connection with sales of residential property, particularly condominiums
and cooperatives, and on the transfer of corporate stock.”318 In terms of forms of common
ownership developed to meet the demand for residential housing, courts give credence to the
social and economic justifications offered by the group seeking to impose the restraints (typically
on transfers of ownership interests and use) even though the restraints cause economic harm to
individuals. Although some courts engage in a rigorous analysis of the proffered purposes for the
restraints, other courts accept bare assertions that the challenged restraints serve a beneficial
purpose for the community of residential owners or society as a whole.319

Some of the most important decisions limiting application of the rules against restraints on
alienation as applied to residential communities generally have been made in the context of
cooperative housing schemes. In a cooperative housing arrangement, the members of the
cooperative own stock in a nonprofit corporation, and such stock ownership entitles a member to
occupy individual apartments.320 In this type of cooperative housing structure, just as in tenancy
in common, the members of the cooperative are financially interdependent. The Restatement on
Property states that:

It is essential to the financial stability of such a corporation that the members each contribute their
share of the taxes, maintenance and mortgage expenses of the premises, because the only source
of corporate income is usually the assessments levied on individual member-stockholders, and the
entire premises, including the interests of all the members of the corporation, are subject to
foreclosure sale in the event that the corporation defaults on its obligation.321

318 RESTATEMENT (SECOND) OF PROPERTY (DONATIVE TRANSFERS), Notes to Part II, at 4 (1983).
319 As discussed infra, recent opinions demonstrate that judges accept rather bare-boned statements that certain

restrictions on the transfer of an ownership interest or on the use of the property owned in residential communities serves
some socially beneficial purpose. Such judicial solicitude for those groups seeking to impose these restrictions on transfer
and use is similar to the relaxation of judicial standards for granting partition sales. In many partition cases, judges now
simply accept conclusory averments that the land at issue cannot be equitably divided. See Cassagrande, Jr., supra note
35, at 766. Of course the relaxation of the judicial standards in these two areas serves contrasting policies.

320 RESTATEMENT (SECOND) OF PROPERTY (DONATIVE TRANSFERS), § 4.1, at 40 (1983).
321 Id.

49

Due to such financial interdependence, the corporate bylaws of such cooperatives normally require
the board of directors or a majority of the members to consent to transfers of the lease and stock
of individual members.322

In the leading case of Penthouse Properties, Inc. v. 1158 Fifth Avenue, Inc.,323 a case of first
impression in New York State, the court considered the lawfulness of a restraint on alienation that
required tenant owners of a cooperative apartment to receive approval from the board of directors
or from two-thirds of the stockholders prior to transferring stock ownership or assigning a lease.
In a decision upholding the restraints, the state court focused almost exclusively on the needs of
the group. The court considered “the residential nature of the enterprise, the privilege of selecting
neighbors and the needs of the community”324 as important factors outweighing the need of
individual tenants for unfettered rights of alienation. In holding that “the special nature of the
ownership of co-operative apartment houses by tenant owners requires that they be not included
in the general rule against restraint on the sale of stock in corporations organized for profit,”325

the court determined that there was a social value to promoting stable residential communities
organized under cooperative housing forms of ownership.

Twenty-one years later, the Supreme Court of Illinois considered the lawfulness of a restraint
on alienation in a suit against an association that developed and maintained a cooperative
subdivision “as a carefully planned, nonspeculative, attractive community.”326 The challenged
restraint gave the association one year to purchase the interest of a member wishing to withdraw
from the association either at an agreed upon price or at a price set by an appraiser.327 In
considering the restraint, the court established a broad rule for determining the lawfulness of
restraints on alienation that many courts throughout the country have followed. The court held
that:

“[T]he crucial inquiry should be directed at the utility of the restraint as compared with the injurious
consequences that will flow from its enforcement. If accepted social and economic considerations
dictate that a partial restraint is reasonably necessary for their fulfillment, such a restraint should
be sustained.”328

Because the court believed that the restraints included in the membership agreements provided
“the only way to keep [such] co-operative housing co-operative,”329 the court was faced, at least
implicitly, with weighing the value to society of such residential communities. Arguably, the
cooperative housing arrangement should be protected from the unchecked forces of the market
only if such residential communities serve some useful purpose for the society. In deciding that the
restraints were reasonable, the court recognized that legal instruments designed to promote

322 Id.
323 11 N.Y.S.2d 417 (N.Y. App. Div. 1939).
324 Id. at 422.
325 Id. at 423.
326 Gale v. York Ctr. Community Coop., 171 N.E.2d 30, 31 (Ill. 1960).
327 Id. at 32. The association’s membership agreement also placed certain restraints on the ability of those

acquiring a membership interest under either a will or the laws of intestacy to becoming members of the association. Id.
328 Id. at 33.
329 Id. at 32.

50

stability within such communities serve important social ends— viz. creating stable residential
communities.

Just as courts have recognized the societal value of communities organized into cooperative
housing developments, courts have determined that condominium arrangements represent an
increasingly important type of residential living.330 Though individual members of a condominium
are not as financially interdependent as members of many housing cooperatives, courts have
determined that the same kinds of restraints on transfer and use that are upheld in cooperative
agreements are lawful when included in condominium agreements. In addressing the nature of
condominium living, the Florida appellate court wrote in a much-cited opinion:

“. . . inherent in the condominium concept is the principle that to promote the health, happiness, and
peace of mind of the majority of the unit owners since they are living in such close proximity and
using facilities in common, each unit owner must give up a certain degree of freedom of choice
which he might otherwise enjoy in separate, privately owned property.”331

Instead of focusing on the financial sustainability of such communities, many courts consider
whether the restraints serve a state’s public policy goals or, more narrowly, contribute to
promoting the “community life” of the condominium community.

In 1989, in a case involving a publicly subsidized condominium development, the California
court of appeals upheld restrictive covenants designed to promote affordable housing for persons
of low and moderate income and to sustain a community of owner-occupiers.332 In this case, the
private developers, who purchased the land from the City of Oceanside in order to construct
replacement dwellings for low- and moderate-income people displaced due to an urban renewal
project, agreed to covenants, conditions, and restrictions that required condominium owners to
occupy their units as their principal place of residence and prevented such owners from renting or
leasing their units.333 The restrictions were to be maintained for ten years after completion of the
construction of the condominiums.

In upholding these restrictions, the appellate court first determined that in judging the
lawfulness of the restraint, “the court must balance the justifications for the restriction against the
quantum of the restraint” with more restrictive conditions requiring stronger justifications.334 To
this end, the court viewed the restraints as consistent with the public policy of California to
promote affordable housing for all families within the state. The court maintained that the
restraints on alienation promoted the state policy because they directly “related to the stated
purposes of maintaining a stabilized community of low and moderate income residents and
discouraging speculation by real estate investors.”335

330 Laguna Royale Owners Ass’n v. Darger, 174 Cal. Rptr 136, 143 (Cal. Ct. App. 1981).
331 Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 181–2 (Fla. Dist. Ct. App. 1975).
332 City of Oceanside v. McKenna, 264 Cal. Rptr 275 (Cal. Ct. App. 1989). The individual grant deeds stated that

the restrictions were designed “to achieve a stabilized community of owner-occupied dwelling units, to avoid artificial
inflation of prices caused by resales by speculators and to prevent scarcity caused by vacant homes awaiting resale by
speculators. . . .” Id. at 278.

333 Id. at 278.
334 Id. at 279.
335 Id.

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Although the California appellate court considered whether the restraints on alienation in
McKenna served public policy, other cases merely consider the needs of the community of
condominium owners. For example, the Florida appellate court considered the lawfulness of
restrictive conditions contained in a declaration of condominium that, like those in McKenna,
forbade unit owners from leasing their units, except for very limited time periods.336 Although the
case did not involve affordable housing or any other noteworthy public policy of the state, the
court upheld the leasing restrictions because it viewed protecting the very character of the
condominium community as a reasonable goal. The court stated that:

Given the unique problems of condominium living in general and the special problems endemic to
a tourist oriented community in South Florida in particular, appellant’s avowed objective— to
inhibit transiency and to impart a certain degree of continuity of residence and a residential
character to their community— is, we believe, a reasonable one. . . . The attainment of this
community goal outweighs the social value of retaining for the individual unit owner the absolutely
unqualified right to dispose in any way and for such duration or purpose he alone so desires.337

In some instances, courts seek to preserve the character of a particular community by
upholding restraints that limit the class of people that may purchase property in planned residential
developments from individual owners who would like to sell their property. For example, the
Florida court of appeals recently upheld restraints on alienation that sought to preserve the
character of a planned development for military officers.338 The Indian River Colony Club
restricted prospective purchasers to members of the club— a club for people who had served in
the military as commissioned or chief warrant officers. In addition, the deeds contained a provision
that mandated the purchase price a property owner would be entitled to receive upon resale.339

In terms of the restriction on the persons to whom they could sell their property, the court
noted that holding this restriction to be unreasonable would destroy the primary purpose of the
planned development, a development that was planned to serve a community of military officers.
As it pertains to the restriction that required owners to forego the right to sell their property at
market prices, however, the court merely parroted the language from the deed of restrictions that
stated that the restrictions were made “for the mutual and reciprocal benefit of each and every
residential lot and apartment in the subdivision.”340

State courts throughout the country uphold restraints imposed upon owners who live in
residential developments because the courts seek to preserve and promote stable communities,
whether these are communities of people of low and moderate income or communities of former
military officers. Although the federal government’s history of dispossessing Indian tribes of their
land is well known, since the time of the Indian Reorganization Act the restrictions on alienation
of Indian-owned trust land have played a useful role in stemming land loss in the American Indian
community.

336 Seagate Condominium Ass’n, Inc. v. Duffy, 330 So. 2d 484, 485 (Fla. Dist. Ct. App. 1976).
337 Id. at 486–7.
338 Indian River Colony Club, Inc. v. Bagg, 727 So. 2d 1143 (Fla. Dist. App. 1999).
339 Id. at 1144.
340 Id. at 1145.

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5. PROPOSAL

Over the course of the past thirty years, the decline in rural black landholdings this century has
been called a “crisis” and black farmers have been referred to as an “endangered species” in reports
that exhibit an increasing tone of desperation. However one chooses to describe the phenomenon,
today the number of black farmers and the number of rural acres under black ownership stand at
historic lows for this century. If the losses are not reversed or at least halted, African Americans
will enter the twenty-first century effectively shut out of the agricultural sector as producers and
rural black people will own less land than rural black people owned in the years immediately
following the Civil War. Addressing the issue of land loss by itself, however, will not do much to
improve the standing of black farmers and rural landowners. At present, many rural African
Americans are not able to use land they own productively. As the Pigford lawsuit made plain,
many black farmers have been denied credit unlawfully. In other instances, African Americans who
hold an interest— no matter how large— in heir property have not been able to use the land as
collateral to secure financing to build homes or to improve their agricultural operations.341

Just as the USDA and its county agents systematically discriminated against black farmers for
decades, driving many of these farmers out of business, meaningful policy reform must be just as
systematic and far-reaching.342 Simply allowing some of the members of the Pigford class to
collect limited damages will do next to nothing to ensure that black people will have the
opportunity to participate as producers in the agricultural sector of the economy into the next
century. The moral imperative to redress fundamental acts of injustice applies with equal force to
those thousands of rural black landowners who lost their land due to the unethical, sometimes
illegal, practices of white attorneys and land speculators who used the rules governing partition
actions as a lever to force the sale of black-owned land.

Policymakers must take an organic approach to restoring meaningful ownership to rural
African Americans. Such an approach requires at least three elements: land consolidation, land
restoration, and community legal education. Further, both the state and federal government must
develop a policy directed at these three ends. In addition to these three core measures, federal and
state officials should assist African American landowners who own land of special historical
significance to place such land in trust. Protection of such African American land not only will help
the current owners and their descendants maintain ownership of such land, but also will provide
future generations of African Americans with an opportunity to keep alive and learn firsthand
about an important part of their heritage.

341 C. Scott Graber, Heirs Property: The Problems and Possible Solutions, Sept. 1978 CLEARINGHOUSE REV. 273,

278 (1978) (“Those who describe the ‘equity base’ that blacks have in Southern farmland refuse to recognize that much
of this equity base cannot generate credit. This land will not finance a home or farm equipment or serve as collateral for
an emergency loan”).

342 The need for far-reaching policy reform also applies to the problem of heir property for American Indians who
hold fractionated interests in allotted land. See Carl G. Hakansson, Allotment at Pine Ridge Reservation: Its
Consequences and Alternative Remedies, 73 N.D. L. REV. 231, 256 (1997) (stating that “[i]t is difficult to envision a
policy as radical as assimilation and allotment being implemented presently in the United States. It may, however, take
the implementation of a policy more radical than Congress has thus far been willing to consider to effectively address
the problems at hand”). See also, Hodel v. Irving, 481 U.S. 704, 712 (1987) (stating that the “fractionation problem on
Indian reservations is extraordinary and may call for dramatic action to encourage consolidation”).

53

Land consolidation initiatives could help improve the security of tenure of present heir-
property holders. At a bare minimum, the law should enable groups of African Americans who
hold heir property to reorganize their ownership of the land under rules that would not require
unanimous consent of all interest holders. If either a majority or a supermajority of the interests
in a tenancy in common is permitted to change the default rules governing the tenancy in common
or to convert to another form of ownership altogether, land can be managed more effectively to
the benefit of the majority.

Under such modified rules, the group could lawfully place restrictions on alienation of
individual interests of the type definitional of other common property forms such as the
condominium and the cooperative. These relatively newer forms of residential ownership—
together with their restrictions on alienation— are well established in law because they respond to
the demand in the market for community-oriented group living. Likewise, the law should
affirmatively recognize that the continued black ownership of rural lands serves a higher
purpose— it promotes a more democratic union.

In addition to helping African American landowners as a group stabilize their common
property holdings, the federal government should restore land to black farmers who lost their land
due to foreclosure by the U.S. Department of Agriculture. The settlement of the Pigford class
action lawsuit provides for limited land restoration, even in those cases in which the USDA played
a significant role in driving successful black farmers into bankruptcy. Such broader land restoration
would be consistent with the recent efforts made by countries such as South Africa to return land
to individuals and communities who lost their land due to unjust governmental actions in a prior
period in the country’s history.

Even if land is restored to African Americans or tenants in common are given the right to
reorganize their landownership under another, more stable form, poor landowners often do not
have access to lawyers who can help them manage their land effectively or fend off those who seek
to acquire ownership of their land against their wishes. Congress should expand the mission of
legal services to allow poor landowners access to legal-service lawyers. Such an expanded vision
would recognize that there is as much value in preventing those on the cusp of distress from falling
into the ranks of the economically disenfranchised as there is in trying to help those already
destitute survive on the margins.

The ensuing discussion develops each of the proposed policy reforms. However, given the
complexity of the heir property problem, it should be emphasized that an approach that solely
seeks to implement on one or two of these proposals will likely provide only temporary relief.

5.1 LAND CONSOLIDATION

In many parts of the world, rural land has fallen into unproductive use. This normally occurs once
the ownership becomes fragmented physically or the number of people or entities who may hold
a legal interest in the land grows beyond a certain critical point.343 Such fragmentation of land or

343 Although land fragmentation is typically considered from the standpoint of spatial patterns, “legal” fragmentation

occurs once the number of people or entities holding overlapping— and often conflicting— legal interests in a parcel of
land exceeds the point at which these different people or entities can effectively manage and utilize the land productively.
Cf. Heller, supra note 50, at 624 (discussing problem in which an initial distribution of property rights gives too many

54

ownership or both often arises due to “the application of rigid inheritance rules.”344 Clearly, the
heir property phenomenon in rural, African American communities and amongst American Indians
provides paradigmatic examples of fractionation caused, in part, by inheritance law.

In an effort to return such land to productive use, a number of countries have enacted land
consolidation legislation.345 Under classic land consolidation, legislatures seek to aggregate
spatially fragmented landholdings into as few new consolidated holdings as possible.346 In Norway,
at least, the law also enables those charged with consolidating the land to attempt to improve the
landownership pattern by introducing rules designed to improve cooperation between those
stakeholders with an interest in the land.347 In all state-sponsored consolidation efforts, those
enacting or implementing land consolidation initiatives must balance the interests of the individual,
the landowners as a group, and of the society.348 Even so, a fundamental principle underlying
consolidation is that no individual should suffer economic loss in the consolidation process.349

Almost all proposals offered to cure the problem of fractionated, heir property in Indian
country and in the landholdings of rural blacks assume that the tenancy in common form must be
upheld. Much like “classic land consolidation” measures, these proposals seek to reduce the levels
of fractionation by aggregating the interests in particular parcels of heir property in order that
fewer people would retain a legal interest in the property. This may be done by intestacy reform,350

modification of partition laws,351 and changes in adverse possession laws.352

owners a right to exclude others from using the scarce resource. Heller claims that when “there are too many owners
holding rights of exclusion, the resource is prone to underuse— a tragedy of the anticommons”).

344 Pedro Moral-López, PRINCIPLES OF LAND CONSOLIDATION LEGISLATION 115 (UN Food and Agriculture
Organization Legis. Study No. 3, 1962) (in collaboration with Erich H. Jacoby).

345 See, e.g., Jian-Ming Zhou, Land Consolidation in Japan and Other Rice-Based Economies Under Private
Landownership in Monsoon Asia, LAND REFORM, 1998/1, at 23 (primarily proposing changes to Japan’s land
consolidation initiatives); Torgeir Austenå, Agrarian Land Law in Norway, in AGRARIAN LAND LAW IN THE WESTERN
WORLD 134, 138–40 (Margaret Rosso Grossman & Wim Brussard eds., 1992); Philip Oldenburg, Land Consolidation
as Land Reform, in India, 18 WORLD DEV. 183 (1990); Otto Schiller, Aspects of Land Consolidation in Germany, in
LAND TENURE (Kenneth H. Parsons et al. eds., 1956).

346 Oldenburg, supra note 344, at 183.
347 Austenå, supra note 344, at 138–40.
348 Cf. Hans Sevatdal, Land Consolidation in Norway, pp. 1–2 (unpublished paper delivered at the Conference

on Subdivision, Redesign and Neighborhood Pooling, Fort Myers, Florida (1986)) (on file with author). Particular
national policies and the needs of the national economy provide the basic framework for government officials vested with
authority to consolidate private landholdings. See Austenå, supra note 344, at 138–40.

349 Oldenburg, supra note 344, at 183. Put differently, Oldenburg states that “while land consolidation programs
reallocate land, they require the preservation of the distribution of wealth in land.” Id. at 14 (emphasis in original). See
also cf. Hugo A. Pearce, III, Note, “Heirs’ Property”: The Problem, Pitfalls and Possible Solutions, 25 S.C. L. REV.
151, 157–8 (1973).

350 See, e.g., Williams, supra note 95, at 726–7 (1971) (highlighting some of the intestacy reform proposals offered
to solve the problem of heir property for American Indians).

351 See, e.g., Chris Kelley, Stemming the Loss of Black Owned Farmland Through Partition Action— A Partial
Solution, 1985 ARK. L. NOTES 35 (1985). Kelley proposes that in partition actions in Arkansas, tenants in common who
do not wish to sell their interests be given the right to purchase the interests of those who indicate a willingness to sell
their interests in the property for its appraised value at a private sale. Id. at 40. Further, Kelley proposes that only tenants
who own a simple majority of the interests in a tenancy in common should be permitted to seek a judicial sale of the
property. Id. See also Harold A. McDougall, Black Landowners Beware: A Proposal for Statutory Reform, 9 N.Y.U.
REV. L. & SOC. CHANGE 127, 135–6 (1980). McDougall proposes that, in certain circumstances, heirs be given the right

55

In order to address African American heir-property problems, some proposed changes to the
partition and adverse possession laws would reallocate many rights in the tenancy in common to
the tenants in possession and greatly reduce the rights of the tenants not in possession. For
example, Graber proposes both that a co-tenant in possession be able to constructively oust other
co-tenants after twenty years with the exception of “those who derived their interest by devise or
inheritance from the same source as the claiming co-tenant” and that a co-tenant in possession be
able to force a sale of the interests held by unknown heirs.353 McDougall proposes, inter alia, that
an heir who has been in possession for a long time be given the right to purchase the property at
a private sale once a partition act is initiated with proceeds of the sale held in escrow for the other
heirs and any unclaimed portion refunded to the purchasing heir in possession.354 He also proposes
that the adverse possession laws should be changed to make it easier for a tenant in possession to
adversely possess the property against absentee heirs.355 As part of his proposal that would make
it easier for a tenant in possession to constructively oust a tenant not in possession, McDougall
would permit a tenant in possession to tack the occupancy of the immediate predecessors in title
in order to reduce the amount of time it would take to satisfy the statutory, adverse possession
period.356

To provide “in” tenants with greater rights at the expense of “out” tenants would benefit rural
African Americans who want to continue to farm agricultural land. Such proposals are, however,
problematic for a number of reasons. First, an overarching problem for many of these proposals
is the lack of individual fairness afforded to certain co-tenants. Requiring that individuals with
vested property rights suffer economic loss in the process of consolidation should be avoided if
there are more just alternatives. Such proposals, moreover, violate a central tenet of international
land-consolidation programs that mandates that individuals should not suffer economic loss in the
process of consolidation.

Second, these proposals do not provide a long-term remedy.357 For example, under the
constructive ouster proposal, the problems of fractionation will recur if the tenant in possession
dies intestate. Given the overall rate of will-making for both rural African Americans landowners
and other poor rural Americans, this is more likely than not. In addition, vesting a tenant in
possession with the right to force a sale of the property assumes that this tenant may be well
positioned to maintain the property. To the extent that much of heir property has been
underutilized, however, there may be instances in which the tenant in possession elected to remain
in possession in order to live rent-free in a dwelling on the family property due to their poor
financial circumstances. If this person is given the power to force a sale of the property, she could
be susceptible to land speculators who would agree to finance the sale provided that the land is

to buy out their fellow co-tenants’ interests prior to the filing of a partition action and absent the consent of the other co-
tenants. One such circumstance he identifies would be when more than two-thirds of the heirs petition for such a forced
private sale. Id. at 136.

352 See, e.g., Graber, supra note 63, at 282. See also McDougall, supra note 350, at 136.
353 See Graber, supra note 63, at 282–84.
354 See McDougall, supra note 350, at 135–6.
355 Id. at 136.
356 Id. See also Graber, supra note 63, at 282.
357 See Moral-López, supra note 343, at 119 (stating that preventing “future excessive subdivision and

fragmentation is as important as the consolidation of fragmented holdings”).

56

transferred immediately thereafter. Even if this tenant in possession could acquire the property for
herself, she may lose the property through foreclosure, tax sale, or distress sale unless her financial
status significantly improves.

Intestacy reform proposals that seek to reduce the further fractionation of heir property may
be unfair to the extent that certain individuals in the ownership group have more restricted options
to pass their property than others. Even absent such fairness concerns, intestacy reform alone
offers too mild an approach to address the magnitude of the heir property problem. For example,
proposals to restrict the class of people eligible to inherit under a will or to restrict the class takes
by the laws of descent will not consolidate the number of tenants in common in a timely or
effective manner.358 In those instances in which land has become highly fractionated with large
numbers of people holding an interest in the tenancy in common, changes in the laws of inheritance
no matter how far-reaching would not consolidate the number of interests in any reasonable period
of time. The most aggressive intestacy reform proposals allow just one person to inherit the land.
However, resurrecting the law of primogeniture, or some gender-neutral variation, faces the likely
political opposition of the heirs who would lose the right to take under the laws of descent.359

Primogeniture was rejected in America from the founding as a vestige of feudalism. Given this
historic revulsion, the general public will not likely support a law of primogeniture— even a
modern version designed to promote democratic interests antithetical to feudalism.360

Existing proposals to ameliorate the heir property problem assume the tenancy in common
as a starting point. Such proposals would improve the status quo by paring down the number of
people with an interest in a given heir-property tract. Some of the worst symptoms of the heir
property problem are addressed by this strategy, including inability to manage land productively
with many remote, passive interest holders and the increased risk of partition action when a tenant
acquires an interest in the common property from a remote heir. The resulting tenancy in common
still would be unstable as any one tenant could seek a partition sale no matter how small an
interest. In addition, these proposals do not help those who remain in the tenancy to better manage
their common property.

A better approach is to restructure the tenancy in common along the lines of newer forms of
ownership such as condominiums/cooperatives or the limited liability company. These have
advantages over tenancies in common or the general partnership form. Allowing those in tenancies
to restructure better balances the goals of strengthening the rights of the common ownership
group and protecting the rights of individuals within the group than other approaches discussed.

The real focus of effective policy reform must be the default rules governing relations amongst
tenants in common by operation of law, that is, not voluntary and consensual communities. Unlike

358 See, e.g., Williams, supra note 95, at 741.
359 See Heirship the Indian Amoeba, at 60. Lawson states the following:
“[A]ny attempt to resolve the issue by limiting the number of persons entitled to inherit would be resisted by
prospective heirs. Even though the value of their interests may be paltry, forced disinheritance would only
create resentment and, ideally, should therefore be avoided.”

Id. at 95. This observation obviously proved to be prescient in the light of the Supreme Court’s decisions in Hodel v.
Irving, 481 U.S. 704 (1987) and Babbitt v. Youpee, 519 U.S. 234 (1997).

360 On an international level, one commentator has noted that in many countries it is very difficult to change
inheritance laws in order to consolidate or prevent fragmentation of rural landholdings because inheritance law “often
derives from ancient social and religious custom.” See Moral-López, supra note 343, at 103.

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tenancies in common formed by voluntary agreement, members of nonconsensual tenancies in
common lack direct control over the formation of the tenancy in common or the composition of
the initial members of the ownership group.361 Given such uncertainty, in almost all instances, the
prospective “co-tenants by law” cannot preplan their tenancy-in-common relationship by entering
into an agreement that allocates the rights and responsibilities of members prior to the moment that
the law declares them to be tenants in common.362 Therefore, the moment the tenancy in common
is formed by operation of law, the tenancy in common is most likely to be subject to the default
rules.363 Theoretically, the members of a nonconsensual tenancy in common can develop a new set
of rules allocating the rights and duties of each co-tenant that would supercede the default rules.
However, negotiating after-the-fact agreements is practically impossible for “co-tenants by law”
because the law requires each of the co-tenants to enter into the agreement.364 Not only must the
co-tenants by law overcome significant transactions costs in some instances, but also those
individual co-tenants who believe that the default rules benefit them have little incentive to
negotiate away such an advantage without receiving major concessions from their fellow co-
tenants.365

These obstacles to private ordering become nearly impossible barriers as the number of co-
tenants grows. And this describes many heir-property cases, whether in the rural African American
community or in other communities. Transactions costs may prevent even those holding nearly all
of the interests in any given heir-property parcel to restructure their ownership arrangement by
private management. This suggests that government intervention be required to overcome the
intransigence of individual “holdouts.”

The goal is to allow majorities to act without unanimity but to protect individual interests by
assuring exit from the group as well as fair value for their interest. What follows are two proposals
that could be pursued either independently or as a package. One would require states to spend
little, if any, money; the other more comprehensive proposal would require states to establish land
consolidation courts that would cost some money in the short term, but would be likely to produce
more economically productive landholdings that would benefit the wider economy.

5.2 ALLOW EITHER A MAJORITY OR A SUPERMAJORITY OF THOSE HOLDING
COMMON TENANCY INTERESTS TO RESTRUCTURE AS A LIMITED LIABILITY
COMPANY

Those who own an interest in heir property are often locked into an ownership structure that
denies them the normal benefits of a fee simple interest. And heir property exacerbates some of
the structural problems of the tenancy in common. The limited liability company, described below,
provides more stability, better mechanisms to allocate management responsibility, and reasonable
exit options as compared to the tenancy in common.

361 Evelyn Alicia Lewis, Struggling With Quicksand: The INs and OUTs of Cotenant Possession Value Liability

and a Call for Default Rule Reform, 1994 WISC. L. REV. 331, 390 (1994).
362 Id.
363 Id. at 390–91.
364 Id. at 391.
365 Id.

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The limited liability company (“LLC”) was developed for the management of unincorporated
business organizations. Unhappy with the general partnership’s rules concerning vicarious
liability,366 interest groups representing those in the accounting and legal professions helped in the
1980s to develop and introduce the LLC.367 Members in LLCs are subject only to limited liability
irrespective of how active a role they play in management, but are taxed as partnerships.368 These
features have provided businesses organized as general partnerships with incentives to convert
their form of ownership; so many general partnerships have converted that some commentators
have pronounced the general partnership a dead business form.369 The LLC form is also more
responsive to the interests of the ownership group in maintaining continuity of the business upon
the withdrawal of individual members than the general partnership. A brief comparison of the laws
governing general partnerships and the Delaware LLC statute— chosen because of Delaware’s
historic role in shaping the law of business organizations— is instructive.

A general partnership in many ways, resembles a tenancy in common. Many of the default and
immutable rules governing general partnerships work best for small firms with limited numbers of
partners who know and trust one another.370 Analogous to each co-tenant’s equal rights to
possession of the whole property, a general partnership consists of partners with equal rights to
the management and profits of the enterprise.371 As in a tenancy in common, conflicts may arise
between the partners in a partnership if the individual owners contribute substantially different
amounts of money, service, or time to the business.372 Further, the rules governing the exit of
individual partners from a partnership are almost identical to the common laws rules governing
partition actions. The filing of a partition action by an individual tenant in common usually results
in a judicial sale of the property. In most cases, “any partner can withdraw from the partnership
at will, force a liquidating sale, and receive the net value of her partnership interest in cash.”373

Although the ability of any individual partner to force a liquidation of a general partnership makes
a general partnership an unstable business form, a general partnership is more stable than a tenancy
in common because partnership default rules prevent partners from transferring their full
partnership interests to third parties without the unanimous consent of the other partners.374

As compared to the general partnership, LLC statutes allocate more control to the ownership
group than to individual members. At the same time, these statutes protect the economic interests

366 Members in an LLC face far less exposure to liability based upon the actions of their associates than do partners

in a general partnership, who are each subject to vicarious liability for the actions of their fellow partners.
367 CHARLES R.T. O’KELLEY & ROBERT B. THOMPSON, CORPORATIONS AND OTHER BUSINESS ASSOCIATIONS

62 (3rd ed. 1999).
368 Cf. LARRY E. RIBSTEIN, UNINCORPORATED BUSINESS ENTITIES 286 (1996). In addition, by 1996, all fifty states

and the District of Columbia had enacted LLC statutes. Id.
369 O’KELLEY & THOMPSON, supra note 366, at 64. Not only are partners in a general partnership able to limit

their liability if the partnership converts to an LLC, but also LLC statutes typically minimize the conversion costs that
other entities must bear to convert their entities into LLCs. See, e.g. DEL. CODE ANN. tit. 6, § 18-214 (1998).

370 O’KELLEY & THOMPSON, supra note 366, at 56.
371 Id. at 57.
372 Id.
373 Id. at 121.
374 LARRY D. SODERQUIST ET AL., CORPORATIONS AND OTHER BUSINESS ORGANIZATIONS 100 (4th ed. 1997).

However, partners may freely assign their financial rights to third parties, including their rights to their share of the profits
and losses and their right to receive distributions. Id. at 96.

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of individual members. Examining certain provisions of the Delaware LLC statute demonstrates
the degree to which at least one state legislature sought to reallocate power within unincorporated
business enterprises. Like a corporation, LLCs in Delaware are deemed to have a perpetual
existence unless an operating agreement specifies otherwise.375 Such continuity of life is normally
unaffected by an individual member’s withdrawal from the entity.376 In order to dissolve an LLC,
members holding two-thirds of the interests must consent to the dissolution unless the operating
agreement provides otherwise.377 Although the LLC normally continues after a member resigns
for any reason, such member is entitled to receive fair value for his or her interest as of the date
the membership ceased.378 However, the LLC also has the unilateral right to acquire the interest
of any member provided that fair value is paid.379 Like a general partnership, a member may assign
only their financial interest, but not their right to manage an LLC.380

Just as a member may seek a partition sale of property owned under a tenancy in common,
an LLC may be dissolved upon application of a member or manager if the court determines that
“it is not reasonably practicable to carry on the business in conformity with a limited liability
company agreement.”381 Although the specific judicial dissolution provision of the Delaware LLC
statute may appear to allocate a great amount of power to an individual member seeking
liquidation, the overall scheme of the Delaware LLC statute makes it clear that court-ordered
dissolution should be ordered only in unusual circumstances. As indicated above, LLCs are
deemed to have perpetual existence and the default statutory rules require two-thirds of the
members to consent to a dissolution in cases in which a court-ordered dissolution is not sought.

Mechanisms for allocation of management responsibilities within an LLC provide flexibility.
Absent agreement otherwise, decisions are made by those holding more than 50 percent of the
interests in the profits of the company.382 However, the members of an LLC in Delaware may

375 DEL. CODE ANN. tit. 6, § 18-801(a)(1) (1998).
376 DEL. CODE ANN. tit. 6, § 18-801(b) (1998). This section provides:
Unless otherwise provided in a limited liability company agreement the death, retirement, expulsion,
bankruptcy or dissolution of any member or the occurrence of any other event that terminates the continued
membership of any member shall not cause the limited liability company to be dissolved or its affairs to be
wound up, and upon the occurrence of any such event, the limited liability company shall be continued
without dissolution.
377 DEL. CODE ANN. tit. 6, § 18-801(a)(3) (1998). This section of the statute provides that an LLC may be

dissolved in the following way:
Unless otherwise provided in a limited liability company agreement, upon the affirmative vote or written
consent of the members of the limited liability company or, if there is more than 1 class or group of members
then by each class or group of members, in either case, by members who own more than two-thirds of the
then-current percentage or other interest in the profits of the limited liability company owned by all of the
members or by the members in each class or group, as appropriate.
378 DEL. CODE ANN. tit. 6, § 18-604 (1998).
379 DEL. CODE ANN. tit. 6, § 18-702(e) (1998).
380 DEL. CODE ANN. tit. 6, § 18-702(a)-(b) (1998).
381 DEL. CODE ANN. tit. 6, § 18-802 (1998).
382 DEL. CODE ANN. tit. 6, § 18-402 (1998).

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agree to vest complete or partial management of the entity in a manager or managers,383 or may
establish different classes or groups of members with different voting rights.384

Interestingly, the Delaware statute includes several provisions that facilitate the ability of
businesses organized under other forms of ownership to convert their ownership to LLC form
(and, for that matter, for LLCs to convert to other forms of ownership). Other enumerated
entities385 may convert to an LLC by filing a certificate of conversion386 and a certificate of
formation as an LLC.387 Prior to converting, however, these other entities must comply with the
rules that govern the preexisting ownership arrangement— including rules that determine what
proportion of members must agree to convert to another form of ownership.388 Both certificates
are simple in form, requiring limited information such as the names of the entities. In addition,
LLCs may convert to other forms of ownership or may merge or consolidate with other entities
provided more than 50 percent of those holding an interest in the profits of the company agree,
unless the LLC agreement provides otherwise.389

Limited liability statutes such as the one in Delaware aim to minimize the transactions costs
of converting ownership form, and thus promote the ability of those who own equity jointly to
adapt to changed circumstances. Those businesses not organized as LLCs may easily convert
ownership; LLCs may be easily converted to other forms of ownership. Present state law should
be changed to permit those holding a majority or supermajority of common tenancy interests to
convert to an LLC and to establish the basic framework of the operating agreement. However,
such operating agreements should not permit those vested with management authority to acquire
an interest of an individual member without the consent of such member. In addition, homestead
protections would ensure that those living in a dwelling on property primarily suited for economic
uses retain the right to possession of such dwelling.390 Though individuals would lose the right to
simply liquidate the ownership at will (by filing for a partition sale, for example), their economic
interests would be protected as they could choose to exit the LLC upon the payment of fair value.

Such revised statutes that would allocate more power to the majority interest holders in a
tenancy in common in order to provide them with more ability to control the disposition and use
of the land do not raise takings issues. Individuals retain their economic interest in the property

383 DEL. CODE ANN. tit. 6, § 18-402 (1998).
384 DEL. CODE ANN. tit. 6, § 18-302 (1998).
385 DEL. CODE ANN. tit. 6, § 18-214(a) (1998). These entities include “a business trust or association, a real estate

investment trust, a common-law trust or any other unincorporated business, including a partnership (whether general
(including a registered limited liability partnership) or limited (including a registered limited liability limited
partnership)) or a foreign limited liability company.” Id.

386 DEL. CODE ANN. tit. 6, § 18-214(b)(1) (1998).
387 DEL. CODE ANN. tit. 6, § 18-214(b)(2) (1998).
388 DEL. CODE ANN. tit. 6, § 18-214(h) (1998). Of course, under current law, such a provision would prevent for

all practical purposes those holding heir property to convert their ownership to an LLC because all of the interest holders
would have to agree to the conversion.

389 DEL. CODE ANN. tit. 6, §§ 18-209, 18–216 (1998).
390 Such a provision would allow the members of the newly formed LLC who were tenants in common in

possession for a period of time to remain in possession. In the operating agreement, however, the members of the LLC
can allocate the duties and rights of the members based upon whether they are in possession or live away from the
property. Such an allocation could provide for the amount of rental money, if any, the “in” tenants would owe to the “out”
tenants. See generally Lewis, supra note 360.

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and such interests would likely increase in value. In the past two years, Congress has enacted laws
that now enable the owners of a majority of the undivided interests in Indian allotments located
on either the Fort Berthold Indian Reservation in North Dakota or the former reservations of
several tribes in Oklahoma to enter into mineral leases or agreements.391 Prior to enactment of
these statutes, all of the interest holders on these Indian lands had to consent to the mineral leasing
agreement.392 Congress indicated that the Indian owners of the land had suffered significant
economic losses due to the fact that the land had not been able to be explored and developed by
mining companies because of the previous requirement that all of the interest holders consent to
the mining of the land.393

Assuming for the sake of argument that the conversion of heir property to another form might
raise takings issues, the states clearly have the authority to take such interests because the
Supreme Court has greatly expanded the circumstances under which property may be taken for
a “public use.” In Hawaii Housing Authority v. Midkiff,394 the Supreme Court held that a state
seeking to exercise its powers of eminent domain need demonstrate only that the taking of private
property is rationally related to achieving a public purpose. In addition, the Supreme Court in
Midkiff did not view a taking that would transfer property from one private individual to others
as inconsistent with the public use requirement because the Court determined that “it is not
essential that the entire community, nor even any considerable portion, . . . directly enjoy or
participate in any improvement.”395 Further, in the unlikely case in which an individual’s interest
would decline in value due to the change in ownership form, such an individual should be entitled
to receive from the ownership group the difference in the value of her interest prior to the
conversion as opposed to the value within a reasonable period of time after the conversion.

5.3 STATES SHOULD ESTABLISH LAND CONSOLIDATION COURTS TO AID RURAL
PROPERTY OWNERS LOCKED IN INEFFICIENT PATTERNS OF OWNERSHIP AND
IMPROVE THE PRODUCTIVITY OF THE LAND BASE

Allowing those holding a majority interest in common property to convert to an ownership form
that allocates more control to the group will stabilize the ownership of such land. Once ownership
is stabilized, many current owners will need to clear title before the land can be used productively.
For example, one of the more insoluble heir-property problems has been the issue of the unknown
heir. Given the existence of these unknown heirs, much of heir property holdings are subject to
clouds on title, rendering it nearly impossible for those holding such property to use the property
as collateral to secure loans to build or improve housing on the land or to improve farming
operations. Even if the majority interest holders could convert the tenancy in common to an LLC,
the unknown heir problem would still need to be addressed in order to provide the known heirs
with clear title. In short, enabling the majority interest holders to convert to an LLC would

391 Act of July 7, 1998, Pub. L. No. 105-188, 112 Stat. 620 (Fort Berthold Reservation); Act of October 7, 1999,

Pub. L. No.106-67 (amending Pub. L. No. 105-188 to include Indian lands located in Oklahoma).
392 H.R. REP. NO. 106-338 (1999).
393 Id.
394 467 U.S. 229, 241–2 (1984).
395 Id. at 244 (quoting Rindge Co. v. Los Angeles, 262 U.S. 700, 707 (1923)).

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represent just one step in a process of “legal consolidation” that would enable the ownership group
to use the land productively.

In this country, those who own an interest in heir property that has fallen into unproductive
use have few options to improve the prevailing ownership structure, rendering exit through
initiation of partition actions an attractive option.396 Other countries, in contrast, have developed
institutions that would enable such owners who value the land for more than its mere exchange
value to play a role in improving the ownership structure so that the land could be used more
productively. Norway, for example, has created specific legal institutions that seek to consolidate
land in a manner that is beneficial to all of those who may be affected by such consolidation. These
Norwegian institutions provide a good model that could be replicated in this country with certain
modifications.

In the eighteenth century in Norway, as in many other parts of Europe, enclosure resulted
in intense fragmentation of much of the rural land due to successive subdivision practices.397 After
first enacting significant land consolidation legislation in 1821, the Norwegian philosophy that
drove land consolidation changed from the notion that fragmented landholdings should be
aggregated on a one-time basis to a view that land consolidation “[must be] a continuous process,
constantly readjusting the ownership structure to changing economies, technology and patterns
of land use.”398 To achieve this end, Norway established a permanent Land Consolidation Service
(“the Service”) in 1859.399 From the beginning, the Service’s decision-making body was organized
as a court of law; since 1950, these specialized tribunals have been called land consolidation
courts.400 Currently, throughout the country, there are 41 such district, consolidation “trial” courts
and 5 land-consolidation court of appeals.401 The land consolidation “judges”(who are not required
to be attorneys) must have a degree from the Agricultural University of Norway with substantive
coursework in land law, surveying, mapping, and land consolidation.402 In addition, the land
consolidation courts can call upon the expertise of the Service, which employs 275 people, many
with specialized training.

396 In Albert Hirschman’s lexicon, the heir property owners have greater incentives to exit than to use their “voice”

to improve the prevailing ownership structure. See ALBERT O. HIRSCHMAN, EXIT, VOICE AND LOYALTY (1970). In
distinguishing “voice” from “exit,” Hirschman states that:

To resort to voice, rather than exit, is for the customer or member to make an attempt at changing the
practices, policies, and outputs of the firm from which one buys or of the organization to which one belongs.
Voice is here defined as any attempt at all to change, rather than to escape from, an objectionable state of
affairs, whether through individual or collective petition to the management directly in charge, through appeal
to a higher authority with the intention of forcing a change in management, or through various types of actions
and protests, including those that are meant to mobilize public opinion.

Id. at 30.
397 Sevatdal, supra note 347, at 7.
398 Id. at 9.
399 Jørn Rognes and Per Kåre Sky, Mediation in the Norwegian Land Consolidation Courts, Working Paper No.

14, North America Series, Land Tenure Center 2 (May 1998).
400 Id.
401 Id.
402 Id.

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Land consolidation cases in Norway normally must be initiated by at least one landowner or
person holding a legal interest in the land subject to potential consolidation.403 The courts use a
two-prong test to determine whether the land may be consolidated. First, there must be a
“dependency of some sort between the holdings in an area, with regard to efficient economic
use.”404 The “dependency” is defined broadly.

The dependency could be due to location: the holdings are so physically situated in relation to each
other that the use of one affects the use of others, and vica versa (sic). It could also be due to other
physical or practical factors. The dependency could also be rooted in the prevailing type of
ownership from a purely judicial point of view, for instance various sorts of joint (common)
ownership, rights of use and so on.405

Second, it must be demonstrated that the prevailing ownership structure hinders the current
or potential economic use of the land.406 The land consolidation courts can design remedies taking
one of two different approaches. First, the judges can attempt to eliminate or minimize the
dependencies. Or the judges can introduce or formalize “rules for cooperation where no such rules
exist, to regulate the dependency, minimizing the disadvantages, maximizing the advantages.”407

Along the lines of Norway, states with a significant amount of rural farmland should establish
land consolidation services with trained professionals in land use planning, land assessment, and
land consolidation. Such state land-consolidation services should include courts staffed by judges
with legal training (in property, real estate, business organization, and environmental laws)— as
well as substantive training in surveying, mapping (including mapping with high-technology
geographic information systems), and land consolidation. Those who own property in which the
ownership form or physical pattern of tracts limits the productive use of the land may initiate an
action for legal or spatial restructuring. By definition, this would include parcels under fractionated
heir ownership.

Not only the specialized land courts but the land consolidation service generally would assist
those who own heir property. Professionals in the service could, for example, appraise land and
survey land at a cost reflecting ability to pay.408 Unlike the courts in Norway,409 the state

403 Austenå, supra note 344, at 139. However, in specific circumstances, the Ministry of Agriculture may also

initiate a land consolidation case. Id.
404 Sevatdal, supra note 347, at 3.
405 Id. (emphasis in original).
406 Id.
407 Austenå, supra note 344, at 139.
408 See Graber, supra note 63, at 284 (noting that those who own heir property often need surveys done of their

land); see also letter from Jennifer Binkley, second-year law student University of Wisconsin Law School, (Sept. 30,
1999) (in the course of participating in a legal externship with the Land Loss Prevention Project in Durham, North
Carolina, in the summer of 1999, Jennifer noted that poor people almost always need surveys when they are either
involved in property disputes or trying to clear title) (letter on file with author).

409 In an interview with Judge Per Kåre Sky of the Norwegian Land Consolidation Court, Judge Sky informed me
that the Norwegian land consolidation courts are increasingly handling consolidation cases addressing those who own
undivided interests under a form called “personal joint ownership,” a form of ownership analogous to a tenancy in
common. Electronic interview with Judge Per Kåre Sky, Norwegian Land Consolidation Court of Nord- and
Midhordland, (Sept. 21, 1999). Although the courts have the power to divide the land in kind, the judges sometimes try
to assist the common owners to make agreements that regulate the ownership of the land or to enter into buy-sell

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consolidation courts should be vested with the authority to order fractionated tenancies in common
converted into other forms of ownership that are more stable and provide better management
mechanisms with the concurrence of a majority of those holding an interest.

Like the proposal permitting those who own rural, heir property to convert their form of
ownership with less than unanimous consent, the establishment of state land-consolidation courts
would break unproductive ownership patterns weakening the rural land base. Although it is my
concern for the disproportionate impact of rural heir property on African Americans, meaningful
legal reform would strengthen the position of all rural landowners.

5.4 RESTORATION OF LAND THE USDA FORECLOSED UPON OR PROVISION OF
ALTERNATIVE, IN LIEU LAND

The Pigford settlement provided for limited land restoration to black farmers whose land was
foreclosed upon by the Department of Agriculture. Certain farmers who prevail under the more
risky and arduous arbitration procedure set forth in the settlement, the so-called Track B, are
entitled to return of formerly owned property that remains in the USDA inventory.410 If the USDA
has already transferred the land to a third party, the consent decree provides no other mechanism
for land restoration or, alternatively, for provision of other land. In approving this narrow land-
restoration remedy, the judge reviewing the settlement assumed the federal government has limited
ability to restore land, stating: “[n]othing can . . . restore lost land or lost opportunities to Mr.
Beverly or to all of the other African American farmers.”411

This is simply not true. Throughout this nation’s history the federal government distributed
land to individuals, states, and private entities with less individualized claims than those of black
farmers who lost land directly resulting from the federal government’s discrimination. For
example, the government allocated huge tracts of federal land to mostly white homesteaders in the
latter part of the nineteenth century and the first half of the twentieth century in order to help these
people enter into the economic mainstream of society. Further, the many land-grant universities
throughout the country came into operation only after the federal government provided the
necessary land. In these instances, land in the government’s inventory was transferred in order to
serve specific federal policies.

agreements with one another. However, in answering a follow-up question, Judge Sky later informed me that the
consolidation courts in Norway do not have the power to force buying and selling amongst the common owners or to
convert the personal joint-ownership holdings into other forms of ownership. Electronic interview with Judge Per Kåre
Sky, Norwegian Land Consolidation Court of Nord- and Midhordland, (Sept. 24, 1999).

410 The Pigford Consent Decree provides that if an arbitrator rules in favor of a class member who elects to proceed
under Track B, that the class member is entitled to relief including the following:

The immediate termination of any foreclosure proceedings that have been initiated against any of the class
member’s real property in connection with the ECOA claim(s) resolved in the class member’s favor by the
arbitrator, and the return of any USDA inventory property that was formerly owned by the class member but
which was foreclosed in connection with the ECOA claim(s) resolved in the class member’s favor by the
arbitrator.

Consent Decree, at 10(g)(iv).
411 Pigford v. Glickman, 185 F.R.D. 82, 103–4 (1999).

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The change in federal Indian policy in this century provides further proof that the government
can act to restore land to people who have lost their land unjustly due to discriminatory acts of the
government. In the early part of this century, federal Indian policy sought to assimilate American
Indians, in part by stripping them of much of their land. Modern federal Indian policy aims to
improve the land tenure security for many Indians and tribes, and enables tribes to add to their land
base. From passage of the Indian Reorganization Act in 1934 to the present, American Indian
lands held in trust by the federal government have increased by nearly 8 million acres. These
examples demonstrate that the federal government can, if it chooses, use federal lands to help rural
African Americans stabilize and increase their landholdings. Of course, this would require that the
government adopt a policy that specifically promotes rural African American landownership.

Given the demonstrated significance of African American landownership and the
acknowledged, widespread discriminatory conduct of the USDA, the USDA should return any
formerly black-owned land in its inventory to its prior owners who are members of the Pigford
class. Additionally, the USDA’s inventory obviously includes land that was not foreclosed upon
or land that was foreclosed upon for reasons wholly unconnected to the discriminatory conduct
established in the Pigford lawsuit. Consistent with the charge of the Freedmen’s Bureau to
distribute “abandoned lands,” lands from the USDA’s inventory should be allocated to black
farmers in the Pigford class whose land was foreclosed upon but subsequently transferred to
another party. Such provision of in lieu land would be consistent with land reform measures
adopted by other countries that have attempted to make whole individuals and groups who were
unjustly dispossessed of their land.412 In short, if the federal government adopted a policy that
recognized the importance of black, rural landownership, land restoration and acquisition could
be assured.

5.5 LEGAL SERVICES ATTORNEYS WITH SPECIALIZED TRAINING SHOULD BE
HIRED TO PROVIDE ASSISTANCE TO HEIR PROPERTY OWNERS

Congress should expand the mission of legal services in order that legal services attorneys can
begin providing legal assistance to poor landowners, including those who own an interest in heir
property. Such an expanded mission will necessarily require additional funding for legal services
offices to meet the needs of the newly eligible clients. For example, the local legal services would
need to hire attorneys with training or experience in estate planning, real estate transactions,
property, tax, business organizations, and environmental law.413 In order to begin building a cadre
of lawyers interested in work with poor, rural landowners, these legal services office should
establish internship programs that allow law students to acquire specific expertise in land-related
cases.

In addition to handling individual cases, these legal services offices should conduct regular
community legal-education workshops to educate poor, rural landowners about the laws that
impact their ability to retain ownership of their land. These workshops could address issues such

412 For example, South Africa adopted the Restitution of Land Rights Act in 1994. Under the Act, those successful

claimants who lost land due to the discriminatory acts of the government, dating back to 1913, are entitled to relief that
may include restoration of their original land, the provision of in lieu land, or monetary compensation.

413 See Graber, supra note 63, at 284.

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as land records, tax obligations and tax redemption, liens and foreclosure, adverse possession,
mineral, mining, water, and timber rights. The legal services attorneys could also address legal
problems that normally crop up in tenancies in common such as how to allocate responsibility
between co-tenants for costs associated with maintaining the property and how to redeem property
after a tax sale. Further, local community activists (or in some instances landowners themselves)
could be trained to conduct title searches at local county courthouses so that those who own an
interest in land can figure out who else has a claim to the property. There must be continuous
education about the importance of making wills. Legal services offices should develop form wills
that can be modified with little effort. More broadly, such community legal-education programs
could also help rural landowners begin to do financial planning that would help landowners avoid
losing their land— as so many poor, rural landowners have lost their land— due to financial
distress.

5.6 PLACING INTO TRUST AFRICAN AMERICAN HERITAGE LAND

Just as the federal government, the courts, and the general public recognize that certain Indian-
owned ancestral land constitutes a vital part of the American Indian heritage, the federal
government should recognize that there is small amount of rural land still under black
landownership that represents a part of the African American heritage.414 At a minimum, land
currently owned by African Americans that was initially acquired by black people either prior to
or within a generation of the close of the Civil War should receive special federal protection.
According to a report by the Emergency Land Fund in 1980, there is only a small percentage of
land that was acquired by black people from the close of the Civil War until 1910 that remains in
the families of the original black landowner.

In addition to this land, land set aside for specific black communities during the New Deal
resettlement programs should be eligible for special federal protection. Although the total number
of rural acres set aside for these black communities was small, these communities served as a
beacon for many rural black people who believed that landownership could transform their lives.
Recently, rural sociologists and other academics have begun to study anew the important role of
these communities in uplifting the hopes of rural African Americans across the South. Given the
unique status of the two categories of land described above, the federal government should
recognize this land as African American heritage land.415 Owners of such heritage land should be
eligible for federal support that could include financial assistance earmarked to helping restore
historically important buildings on the land, either federal management of the property under a
trust relationship or federal assistance in helping these landowners establish private land trusts, and
the building of museums or archives that would document the history of the acquisition and use
of the land by the black landowners.

414 See, e.g., Flooded Black Town Decides to Rebuild, N.Y. TIMES, Nov. 24, 1999, at A21 (discussing recent

flooding of historic town that was the first in the nation to be chartered and governed by blacks after its was founded by
freed slaves after the Civil War).

415 Other land that could be categorized as African American heritage land would be land still under black
ownership that once served as the sites for historic black colleges and universities that were opened after the end of the
Civil War, but have now ceased operation.

67

CONCLUSION

At the end of the Civil War, the federal government failed to redistribute land to African
Americans. Without such governmental assistance, many African Americans made heroic sacrifices
to purchase land on their own. However, the 15 million-acre land base that many black families
built up in the South between the end of the Civil War and 1910 has almost been wiped out. In
recent times, thousands of black families have lost their land due to partition sales of black-owned
land, many of which have been initiated by those outside of the family who have managed to
acquire an interest in a tenancy in common with the sole desire of forcing a sale. Although heir
property continues to represent a form of ownership that is especially unstable, those who own
such property find it nearly impossible to reorganize their ownership of land under a form that
provides better mechanisms to foster continued ownership by the group because the law requires
all of the “co-tenants by law” to agree to any change in the default rules governing tenancies in
common.

Recently, President Clinton has spoken passionately about the threat to the health of our
society by the growing divide in access to technology between those who are more wealthy and
those who are less privileged. The inability of certain groups to participate fully in our society—
and in the global society— due to their inability to access the Internet and other computer
technology represents but one example of a technological divide separating more privileged groups
from others. Those who own heir property are essentially locked into a substandard form of
ownership that presents a large target for those intent on dispossessing people of their land. The
newer forms of ownership that the technology of the law has developed in order to assure greater
continuity of ownership for those owning equity is beyond the reach of those owning heir
property. Just as policymakers should be concerned about providing wider access to computer
technology for all groups in our society, such policymakers should respond to the crisis in land loss
in African American communities given the established links between landownership, community,
and democratic participation.