Week 11 - Race, Exclusion, and Property

Whiteness as Property

• Core argument:

  • In the United States, property rights were built on racial domination, not just neutral ownership rules.

  • The way race and property were mixed together created a system that enslaved Black people and took land from Native Americans.

• Slavery and Black people as property

  • Black people were hyper-exploited by being treated as property themselves, not just as laborers.

  • This created a system where property status depended on race: only Black people were enslaved and legally treated as chattel.

  • Slavery produced a contradiction: slaves were both human beings and property.

  • The Constitution reflected this confusion:

    • For representation, slaves were counted as “three-fifths of a person.”

    • This raised the question: if they are men, why not citizens with votes? If they are property, why count them at all for representation?

  • This dual status (person + property) was unstable and showed how law conflated race and property.

• Native Americans and land as property

  • Native Americans were the original occupants and possessors of the land.

  • But because they were seen as racially and culturally “other,” their possession was reinterpreted and erased as a valid basis for land rights.

  • Their land was labeled “waste” because it was not cultivated or “improved” in European ways, so it was treated as available for settlement.

  • This meant possession only counted as real if it looked like white settlement.

  • So, first possession (usually a key basis for property rights) became contingent on race:

    • White possession = valid, protected property.

    • Native possession = ignored, not “true” possession.

• Johnson v. M’Intosh (land conquest made legal)

  • In this Supreme Court case, two white parties both claimed land through titles from different Native tribes.

  • The Court ruled that Indians could only sell land to the government, not to individuals.

  • Reasoning:

    • Conquest gives the sovereign (the government) absolute title that courts cannot deny.

    • Indian title was subordinate to the conqueror’s title.

  • This made the law the tool of conquest:

    • It didn’t just allow land theft; it normalized a system where rights and disadvantages flowed from race and power.

  • If property is seen as granted by the state, then American property law is inherently built on racial oppression of Native people.

• “Whiteness as property”

  • Over time, these systems helped construct “whiteness” itself as a form of property:

    • Being white meant your claim to land, your legal recognition, and your economic advantages were protected.

    • Non-white people were excluded from these protections because of race.

  • So whiteness became a valuable, legally protected interest—much like traditional property.

Reflections on Whiteness as Property

• Core idea:

  • In the U.S., property and race are deeply connected, but this link is often treated as historical and irrelevant today.

  • The real reason the racial roots of property stay hidden is not just time, but because the law protects “settled expectations” that were built on racial hierarchy.

• “Settled expectations” and the law

  • The law turns certain expectations about owning property into legal property rights.

  • These expectations are shaped by racial hierarchy: what white people expect to own is protected; what non-white people expect is often ignored.

  • Once the state legitimizes these expectations, it gives them real power, even if they originated in violence and racial dispossession.

• Property as a “metaphysical” idea tied to identity

  • Citing Jeremy Bentham: property is not just a physical thing; it’s a mental concept with real value.

  • When the law says something is “your property,” it becomes part of “who you are” (your subjectivity).

  • This deep tie between property and self means:

    • If your property is rooted in white privilege, then whiteness becomes part of your identity and sense of self.

    • Race and property feed into each other and become mutually constructed.

• The law keeps ratifying white expectations

  • Over and over, courts and lawmakers elevate white expectations about property to the level of protected rights.

  • But doing so does not fix or compensate the claims of people who were racially dispossessed (Native Americans, Black people, others).

  • The injury of past dispossession is not “liquidated” (resolved) just because white claims are now legally settled.

• Conquest, discovery, and the legal right to take land

  • When European settlers arrived, they faced a key question: What gave them the legal right to land already occupied by Native Americans?

    • Could they buy or treaty for it, even if Native concepts of land were different?

    • Could they just take it by force?

    • How do you resolve conflicting claims among different European nations over the same land?

  • The doctrine of “discovery” was used to:

    • Let Europeans claim sovereign title over land just by “discovering” it,

    • Resolve conflicts between European powers (who “discovered” first?),

    • Deny or limit Native Americans’ ability to sell land to anyone but the discovering sovereign (later the U.S. government).

• Johnson v. M’Intosh (1823)

  • This Supreme Court case is the foundation of American real property law on this topic.

  • It held that Indians could convey land only to the government, not to individuals.

  • The Court said conquest + discovery gave the sovereign absolute title that courts cannot deny.

  • This made European/white claims legally superior and Native claims subordinate, embedding racial oppression into the core of property law.

  • The ruling still controversial today, but it remains a cornerstone of how U.S. property rights are understood.

What did the Court not allow Native Americans to do with their land in Johnson v. M’Intosh?

Issue(s):

• Can private individuals obtain valid title to land in the U.S. directly from Native American tribes through purchase or treaty?

• Or does only the federal (or state) government have the exclusive power to extinguish Indian title and convey absolute title to land?

Facts (include arguments):

• Plaintiffs claimed land under two private grants from Native American tribes (Illinois and Piankeshaw), made in 1773 and 1775.

• Defendant (M’Intosh) claimed the same land under a grant from the United States government in 1819.

• The tribes that sold the land were in rightful possession under their own laws, but the question was whether U.S. courts would recognize private titles derived from Indian deeds.

• Plaintiffs argued they had valid title via purchase from Indians; M’Intosh argued that only the U.S. government could acquire and convey title.

• The case was framed as a test of whether Indian tribes have the power to convey absolute title to private individuals.

Procedural posture:

• The case came before the Supreme Court on writ of error from the District Court of Illinois, which had ruled against the plaintiffs.

• The Supreme Court reviewed the legal question of whether the plaintiffs’ title was sustainable in U.S. courts.

• The District Court’s judgment against the plaintiffs was affirmed.

Judgment:

• The Supreme Court affirmed the lower court’s judgment.

• It held that the plaintiffs do not have a title that can be sustained in U.S. courts.

• Private purchases from Native Americans cannot create valid title under U.S. law.

• Only the government (federal or state, as constitutionally authorized) can extinguish Indian title and convey absolute title to land.

Applicable Rules and Precedent:

• Discovery doctrine:

  • When European nations “discovered” land already occupied by Native people, discovery gave title to the discovering government against all other European powers.

  • This title could be consummated by possession.

• Indian right of occupancy:

  • Native tribes retained a “right of occupancy” but not absolute title.

  • They could occupy and use the land, but could not transfer absolute title to private individuals.

  • Only the sovereign (the government) could extinguish that occupancy right, by purchase or conquest.

• U.S. adoption of European principle:

  • The U.S. explicitly adopted this European rule after independence.

  • The Treaty of Paris (1783) transferred British rights (including land title) to the U.S., subject only to Indian occupancy.

  • All subsequent land acquisitions (Louisiana, Florida, etc.) were based on the same principle: government holds ultimate title, Indians have only occupancy.

• Stare decisis / law of the land:

  • Even if the principle is morally questionable, once it is asserted, sustained, and relied upon for the property of the great mass of the community, it becomes the law of the land and cannot be questioned by courts.

Holding:

• Private individuals cannot acquire valid title to land directly from Native American tribes.

• Discovery gave European nations (and later the U.S.) the exclusive right to extinguish Indian occupancy and convey absolute title.

• Indian tribes have only a right of occupancy, not full title, and cannot sell absolute title to private parties.

• Therefore, the plaintiffs’ title based on private Indian deeds is not recognizable in U.S. courts.

Reasoning:

• European discovery doctrine:

  • European powers needed a rule to avoid conflict among themselves; they agreed that discovery gave exclusive title to the discoverer’s government.

  • They recognized native occupancy but denied sovereign dominion; natives could not sell to anyone but the sovereign.

• English and U.S. adoption:

  • England traced its title to Cabot’s discovery (1496–1498).

  • After the Revolution, the U.S. inherited Britain’s title, subject only to Indian occupancy.

  • The U.S. consistently acted on this principle in treaties and land purchases (e.g., Louisiana).

• Nature of Indian title:

  • Marshall described tribes as “fierce savages” whose land, if left to them, would remain “wilderness.”

  • He argued that Indians were incapable of being governed as a distinct society, so Europeans had to enforce claims by the sword and adopt principles adapted to that condition.

  • Even if these principles conflict with natural right, they are necessary for the existing system of settlement and property.

• Law of the land:

  • Because the entire system of American property is built on this principle, and the great mass of property originates from it, courts cannot reject it now.

  • The restriction that Indians cannot convey absolute title is indispensable to the system under which the country was settled.

Rule of Law:

• Under U.S. law, only the government has the exclusive power to extinguish Indian title of occupancy (by purchase or conquest) and convey absolute title to land.

• Native American tribes retain only a right of occupancy; they cannot transfer absolute title to private individuals.

• The discovery doctrine—that discovery gives title to the discovering sovereign, subject only to Indian occupancy—is the foundation of American real property law and cannot be questioned by the courts, even if it is morally or naturally questionable.

Key takeaway:

• Johnson v. M’Intosh embeds racial conquest into the core of U.S. property law:

  • Whiteness and sovereign power determine whose land claims are recognized.

  • Native possession is treated as inferior and limited to occupancy, while white/government possession is treated as absolute title.

• All private property in land in the U.S. is ultimately rooted in this government monopoly on extinguishing Indian title, not in private Native sales.

• The case shows how law can legitimize conquest and make racial dispossession the basis of mainstream property rights, which then become untouchable because the whole system depends on them.

K-Sue Park Conquest and Slavery as Foundational to the Property Law Course

• Labor theory was racialized:

  • During colonization, European scholars and colonists used labor theory (the idea that mixing your labor with land gives you ownership) only for Europeans.

  • They ignored or disvalued Native ways of using land, farming, settling, and governing, so Native land use didn’t count as “labor” that created property rights.

• Johnson v. M’Intosh and the Discovery Doctrine:

  • Johnson explains how the “first in time” principle worked in practice:

    • European nations claimed land from Native nations through conquest, recognized by the Discovery Doctrine.

  • This shows that property law is built on a racial structure that made it legal to take Native land.

  • The case also shows how chains of title work:

    • First, European sovereigns (kingdoms, later the U.S.) established title against each other.

    • Then, individuals got title from the government, following those sovereign chains.

• Discovery Doctrine and slavery/colonization:

  • The Discovery Doctrine was the legal framework for enslaving non‑Europeans and colonizing their lands for centuries.

  • Key documents include:

    • Papal bulls Dum Diversas (1452) and Romanus Pontifex (1455), authorizing Portugal to invade West Africa and start the slave trade.

    • Inter Caetera (1493) and the Treaty of Tordesillas (1494), dividing the Atlantic between Spain and Portugal so they could invade without fighting each other.

  • The Dutch, French, and English all colonized under this same racial distinction:

    • Europeans = capable of full property and sovereignty.

    • Non‑Europeans = subject to conquest, enslavement, and dispossession.

  • The doctrine created a “first in time” rule among Europeans for who could try to subjugate non‑Europeans.

• How settlement actually worked (vs. theory):

  • In theory (e.g., Trade and Intercourse Acts):

    1. Government acquires land from tribes,

    2. Surveys it,

    3. Distributes it to settlers.

  • In reality:

    1. Private settlers entered tribal territory first, encouraged by government incentives.

    2. Their labor and presence made it easier for the government to later get formal cessions from tribes.

    3. The government then validated and rewarded those settlers with official titles.

  • So the law worked retroactively: settlers acted first, government caught up and legitimized their claims.

• Possession theory and changing views of Native rights:

  • Theories shifted over time to justify each stage:

    • Discovery justified starting conquest.

    • Labor justified claims while settlers were occupying and improving land.

    • Possession justified continuing control once settlers had actual control.

  • Taking collective possession changed how settlers saw Native property:

    • In early colonial times, direct purchases from tribes were common, implying Natives owned the land.

    • By the time of Johnson, Anglo‑Americans mostly believed the land was already theirs; Native claims were seen as obstacles to remove, not real ownership to respect.

  • The Discovery Doctrine distributed entitlements so that dealing with Native claims became about removing barriers to white settlement, not about honoring Native property rights.

• Main point:

  • Conquest and slavery are foundational to U.S. property law, not side notes.

  • Property law doctrines like Discovery, labor, and possession were shaped by race and used to justify taking Native land and enslaving non‑Europeans.

  • The way title is taught (chains of title, first possession, etc.) hides this history, but understanding it is essential to understanding how property rights in the U.S. really began and who they were designed to benefit.

Color of Law

• Government wanted more white homeowners to stop communism

  • After the 1917 Russian Revolution, U.S. officials feared communism.

  • They thought if as many white Americans as possible owned homes and were invested in capitalism, communism would fail.

  • In 1917, the federal Department of Labor launched an “Own Your Own Home” campaign:

    • Gave children “We Own Our Own Home” buttons.

    • Told people it was a patriotic duty to stop renting and buy a single-family home.

    • Put up 2+ million posters and ran newspaper ads showing only white families.

• Herbert Hoover pushed exclusionary zoning and “racial homogeneity”

  • As Commerce Secretary (1921), Herbert Hoover:

    • Promoted exclusionary zoning (rules that keep only single-family homes in neighborhoods).

    • Led “Better Homes in America” (nominally private, but really directed by the government).

  • They published pamphlets like “How to Own Your Own Home” and held forums on:

    • Benefits of owning homes.

    • How to avoid “racial strife” by moving away from African Americans.

  • A 1923 government pamphlet told buyers to consider the “general type of people” in a neighborhood before buying—clearly a code for race and ethnicity.

  • As president, Hoover called single-family homes “expressions of racial longing” and said owning a home was deep in “our race.”

• Before the New Deal, homes were too expensive for most families

  • By 1933 (when FDR became president), the campaign had done little to help.

  • Most jobs were working- or middle-class, but mortgages required:

    • 50% down payment,

    • Interest-only payments,

    • Full repayment in 5–7 years (then refinance).

  • Very few families could afford this.

  • The Great Depression made it worse:

    • Many homeowners couldn’t pay and faced foreclosure.

    • Construction slowed because no one could afford homes.

• New Deal: HOLC helped existing homeowners

  • In 1933, the government created the Home Owners’ Loan Corporation (HOLC).

  • HOLC:

    • Bought mortgages at risk of foreclosure.

    • Gave new 15–25 year loans with low interest.

    • Made loans amortized (monthly payments included principal + interest), so owners built equity over time.

  • This was the first time working/middle-class families could gradually own more of their home while still paying the mortgage.

• HOLC used race to judge risk: redlining

  • To avoid defaults, HOLC needed to know if neighborhoods would keep their value.

  • They hired local real estate agents (who were expected by ethics codes to maintain segregation) to appraise areas.

  • HOLC drew color-coded maps of every metro area:

    • Green = safest neighborhoods.

    • Red = riskiest neighborhoods.

  • A neighborhood was marked red if African Americans lived there, even if it was a solid middle-class, all-single-family area.

    • Example: Ladue, MO (white, middle-class) = green (“not a single foreigner or negro”).

    • Lincoln Terrace, MO (also middle-class) = red (“little or no value... due to the colored element”).

  • HOLC didn’t always refuse loans in redlined areas, but the maps showed the federal government considered Black people a poor risk just because of race.

• FHA (1934) made first-time homeownership possible—but only for whites

  • To help working/middle-class renters buy homes, Congress created the Federal Housing Administration (FHA) in 1934.

  • FHA:

    • Insured bank mortgages covering 80% of the price.

    • Used 20-year, fully amortized loans.

  • To be eligible, the FHA did its own appraisal to make sure the loan was low-risk.

  • FHA’s appraisal rules required segregation:

    • The 1935 Underwriting Manual said:

      • To keep a neighborhood stable, it must stay occupied by the same social and racial classes.

      • A change in race = instability and lower values.

    • Properties near Black neighborhoods (or that might integrate) were seen as too risky.

  • FHA appraisers were told to give high ratings to:

    • Neighborhoods with no African Americans nearby.

    • Homes with restrictive covenants in the deed.

  • The FHA recommended that deeds include an explicit ban on selling or renting to African Americans.

• Restrictive covenants: private promises to keep neighborhoods white

  • For the first half of the 20th century, many home deeds included restrictive covenants:

    • A promise never to sell or rent to African Americans.

    • Other rules about paint color, trees, etc.

  • Supporters believed:

    • Racial exclusion would protect property values.

    • These were just private agreements, so they wouldn’t violate the Constitution’s ban on state-sponsored discrimination.

  • The FHA encouraged these covenants:

    • Lowered risk for properties with them.

    • Said zoning alone wasn’t enough because it couldn’t stop middle-class Black families from moving in.

    • So deeds must include a race-based ban.

• Bottom line

  • The federal government actively promoted homeownership only for white people.

  • It used:

    • Propaganda (posters, campaigns, white-only images).

    • Zoning laws to keep neighborhoods single-family and segregated.

    • Redlining to mark Black neighborhoods as “risky.”

    • FHA insurance rules that required segregation and restrictive covenants.

  • These policies built white wealth through home equity while blocking Black families from homeownership and the wealth it creates, all through official government policy, not just private prejudice.

In Shelley v. Kraemer, what did the court say about private restrictive covenants being permissive between persons vs enforced in court?

Issue(s):

• Does the Fourteenth Amendment’s Equal Protection Clause prohibit state courts from enforcing private restrictive covenants that exclude persons from owning or occupying property based on race or color?

• Is judicial enforcement of a private agreement considered “state action” subject to the Fourteenth Amendment?

Facts (include arguments):

• In 1911, 30 of 39 property owners in a St. Louis neighborhood signed a restrictive covenant recorded in public records, stating that the property could not be occupied by anyone “not of the Caucasian race” (specifically excluding Black and Asian people) for 50 years.

• At the time, 5 parcels were already owned/occupied by Black families, including one since 1882.

• In 1945, J.D. and Ethel Shelley (Black buyers) purchased a parcel in the area from a willing white seller, Fitzgerald, without knowing about the covenant.

• Nearby white owners (Louis and Fern Kraemer), who were subject to the covenant, sued in Missouri state court to:

  • Stop the Shelleys from taking possession, and

  • Strip the Shelleys of title and reassign it.

• The trial court denied relief, saying the covenant wasn’t effective because not all owners signed it.

• The Missouri Supreme Court reversed, holding the covenant valid and that enforcing it did not violate the U.S. Constitution.

• A parallel case from Michigan involved similar facts and enforcement of a racial covenant against Black buyers.

• The Shelleys argued that court enforcement of the covenant violated their rights under the Fourteenth Amendment (equal protection, due process, privileges and immunities).

Procedural posture:

• Shelley/Kraemer cases started in state trial courts.

• Missouri Supreme Court (and Michigan Supreme Court) enforced the restrictive covenants.

• Petitioners (the Shelleys and McGhees) sought U.S. Supreme Court review via certiorari, arguing enforcement violated the Fourteenth Amendment.

Judgment:

• The Supreme Court reversed the state court judgments.

• It held that judicial enforcement of private racial restrictive covenants by state courts constitutes state action that denies equal protection to Black buyers.

• Therefore, state courts cannot enforce these covenants, even though the agreements themselves (as private conduct) are not unconstitutional.

Applicable Rules and Precedent:

• Fourteenth Amendment, Section 1:

  • Prohibits state action that denies any person equal protection of the laws.

  • Protects the right to acquire, enjoy, own, and dispose of property without racial discrimination by the state.

• State action doctrine:

  • The Fourteenth Amendment only restricts state action, not purely private conduct.

  • However, state courts and judges, acting in their official capacity, are agents of the state; their actions are state action. (Virginia v. Rives, Strauder v. West Virginia.)

• Prior cases on racial zoning:

  • Buchanan v. Warley (1917): Struck down a city ordinance banning Black people from occupying blocks where most homes were white.

  • Harmon v. Tyler (1927): Invalidated an ordinance requiring white consent for Black homeownership in white neighborhoods.

  • These cases confirmed that state-imposed racial restrictions on property are unconstitutional.

Holding:

• Private restrictive covenants excluding people based on race alone are not unconstitutional, because the Fourteenth Amendment does not regulate purely private conduct.

• However, when state courts enforce those covenants (e.g., by evicting Black buyers or stripping title), that enforcement is state action.

• State court enforcement of racial restrictive covenants violates the Equal Protection Clause of the Fourteenth Amendment.

• Therefore, state courts cannot enforce such covenants, and Black buyers must be allowed to own and occupy the property.

Reasoning:

• State courts are state actors:

  • For over 75 years, the Court has held that action by state judicial officers in their official roles is state action under the Fourteenth Amendment.

  • This includes both statutory and non-statutory actions by courts.

• Enforcement is not passive:

  • These cases are not about the state standing aside while private people discriminate.

  • Here, the state actively used its coercive power (courts, injunctions, title changes) to deny Black people property rights available to others.

  • Without court enforcement, the Shelleys could have occupied the homes freely.

• Equal protection is at stake:

  • The Fourteenth Amendment’s core purpose was to ensure equality in civil rights, especially property rights, free from racial discrimination by the state.

  • Allowing courts to enforce racial exclusion nullifies that guarantee, because it lets the state do indirectly what it cannot do directly (ban Black homeownership).

• Distinction from private agreements:

  • Private parties may voluntarily adhere to covenants (though morally wrong), but the Constitution does not require the state to enforce them.

  • Once the state intervenes, the discrimination becomes state-sponsored and unconstitutional.

Rule of Law:

• Private racially restrictive covenants are not themselves unconstitutional, as the Fourteenth Amendment does not prohibit private conduct.

• However, judicial enforcement of such covenants by state courts is state action that denies equal protection and is unconstitutional.

• State courts cannot enforce private agreements that exclude persons from property ownership or occupancy based on race or color.

Key takeaway:

• Shelley v. Kraemer ended the legal enforceability of racial restrictive covenants in the U.S., even though people could still sign them privately.

• The case establishes that the Fourteenth Amendment blocks the state (including courts) from helping private parties discriminate on the basis of race in property transactions.

• This decision, combined with federal policies like FHA redlining and racial covenants being encouraged earlier, marked a turning point:

  • Before: government actively built white-only neighborhoods.

  • After Shelley: the state could no longer enforce racial exclusion, though private discrimination and de facto segregation persisted.

• It is a landmark case linking property law with civil rights, showing that property rights include the right to buy and live anywhere without state-enforced racial barriers.

What is redlining?

Redlining is the practice of denying or limiting financial services, such as loans or insurance, to residents of certain neighborhoods based on their racial or ethnic composition. This often involves marking these areas on maps in red to indicate high risk and is used to systematically exclude minority communities from homeownership and financial investment.

Fair Housing Act

• Policy goal:

  • The U.S. policy is to provide fair housing for everyone in the country, within constitutional limits.

• Key definitions:

  • Handicap (disability):

    • A physical or mental impairment that substantially limits one or more major life activities, OR

    • Having a record of such an impairment, OR

    • Being regarded as having such an impairment.

    • Does not include current illegal use of or addiction to illegal drugs.

  • Familial status:

    • Protects families with children under 18, including:

      • One or more children under 18 living with a parent,

      • Someone with legal custody of a child under 18,

      • A designee of that parent/custodian with written permission.

    • Also protects pregnant women and people in the process of getting legal custody of a child under 18.

• What is unlawful in selling or renting housing:
  It is illegal to do the following because of race, color, religion, sex, familial status, national origin, or handicap:

  • Refuse to sell or rent after a real offer is made, or refuse to negotiate, or otherwise make a home unavailable to someone.

  • Discriminate in the terms, conditions, or privileges of sale or rental (e.g., price, rules, deposit, services, facilities).

  • Publish or post ads, notices, or statements that show a preference, limitation, or discrimination based on these protected traits, or that show an intent to discriminate.

  • Lie and tell someone a home is not available for viewing, sale, or rental when it actually is, because of their protected trait.

  • For profit, try to induce someone to sell or rent by saying (falsely or truthfully) that people of a certain race, religion, disability, etc., are moving into or might move into the neighborhood (this is called blockbusting).

• Special rules for people with disabilities (handicap):
  It is also illegal to discriminate against:

  • The buyer or renter themselves,

  • Anyone who lives or will live in the home, or

  • Anyone associated with the buyer/renter (e.g., family member, caretaker),
    if the discrimination is because of that person’s handicap.
    This includes:

  • Refusing to sell/rent or making housing unavailable, and

  • Discriminating in terms, conditions, privileges, or services/facilities tied to the home.