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In the most powerful and important article I have read in years, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, Professor K-Sue Park blows the cover off American property law to show the central role played by historic expropriation and commodification of Native lands and Black persons.

Conquest of land and enslavement of people make up a small or nonexistent part of most first-year property law courses. But without these two organizing principles, the property course in U.S. law schools seems disjointed and oddly Anglicized. Professor Park explains this lack of cohesion as resulting from persistent erasure of two of U.S. property law’s most foundational aspects: conquest and slavery.

Park’s work has helped to publicize the stubborn impacts of past and present racial injustices in America. Over the past year, this increasing awareness of systemic racial bias has sparked an angry backlash. As Park puts it, “[w]e are in the midst of an ongoing fight over competing versions of U.S. history.”1

Park discusses four characteristics of American property law that arose to facilitate the commodification of land and people and still pervade the jurisprudence today: (i) our rectangular survey system that slices land into marketable pieces, (ii) title certainty promotion using public land records, (iii) tying ownership rewards to entrepreneurial uses, and (iv) the hyper-commodification that underlies mortgage financing. In addition, Park points out that both conquest and slavery were marked by the privatization of violent racial oppression and segregation, which appears to be another pervasive property theme rooted in this history.

Park’s exhaustive study of nearly every published property casebook over the past 130 years is especially informative. Only recently have casebooks started to include any readings on the expropriation of Native lands, typically containing exactly one case, Johnson v. M’Intosh, which, in most casebooks, is inadequately connected to the rest of the course material.

Since the 1940s, property casebooks have barely mentioned slavery, although for 60 years prior, cases pertaining to property rights in enslaved persons were routinely used to illustrate quotidian property law principles such as inheritance, conversion, and conveyancing. This tactic “presented white ownership of Black people as part of the natural social order,” (P. 16) even though slavery had been abolished.

Today’s property casebooks and scholarship “amply illustrate conspicuous avoidance of the history and legacy of American chattel slavery alongside awkward, marginal mentions of the word.” (P. 21.) It is as if we hope that if no one mentions Black slavery and the near genocide of Native peoples, these horrific histories will just go away.

But when these concepts are ignored or marginalized in law schools, students never adequately consider the impact that conquest and slavery have had and continue to have on our property law system.

Expropriation of Native lands and Black chattel slavery in America are not simply historic facts to be learned. They made our law the way it is today. For example, laws creating rectangular surveys facilitated land partition, recorded land titles promoted marketability, and creditor rights to real estate encouraged expansion and monetization of land which, in turn, encouraged white settlers to expand and assist in expropriating Native lands.

A contorted conception of labor and forceful and absolute private property protections evolved in large part to protect the institution of race-based chattel slavery. The values and concerns motivating such property law developments are the fabric out of which our modern property law was woven.

Echoes of slavery and conquest still run through and influence virtually every part of property law. The traditional Anglo-centric framing of property law obscures all these impacts.

Erasure of conquest and slavery from the property law curriculum sets up a dissonance between property theory and property reality. Property theory is dominated by first-in-time, labor theory, and possession. None of these theories, however, can justify conquest or slavery.

Marshall’s opinion in Johnson recognized limited occupancy claims of Native Americans, but the case denigrated first-in-time rights held by indigenous peoples and thus abrogated the maxim.

Locke’s labor theory fares no better when held up against the facts of land expropriation. Although Locke spoke of tilling and planting land as sufficient to justify private ownership, American real property law only rewarded labor that changed a piece of land into a marketable commodity through mapping and establishing record title certainty. Furthermore, Locke’s labor theory starts with the presumption that every person is inherently, naturally entitled to their own labor, but explicitly excludes “the wild Indian” and African peoples from having that natural right.

Property law claims to adopt a possession-based approach to allocation determinations, but acts of dispossession were required to transform places and people into things subject to ownership in America. As Park explains, “lands acquired monetary value upon Native removal from them, actual or projected; human beings acquired monetary value upon their subjugation.” (P. 35.)

Because American colonists acquired property rights by forcibly wresting control away from others, U.S. property law “flipped the ancient priority of maintaining the status quo on its head” (P. 45) and created a property system founded on expropriation rather than security.

The genius of Park’s framing is that once the system is viewed as an expression of the desire to subjugate lands and enslave persons, many other distinctive facets of U.S. property law take on new meanings as well. Framing our property law as essentially a mechanism to encourage commodification and monetization of resources at all costs—including through violence and dehumanization—causes doctrines of accession, free alienability, privatization of public functions, self-help, and title certainty to take on a significantly different, racialized, hue.

Park’s work can—and should—be the catalyst for systemic reconsideration of U.S. law school property curricula. Our property law classes teach a fiction of first-in-time rules and Lockean labor justifications. It is time for scholars and students to face facts: American rules regarding property were designed to generate money through state-sanctioned and coordinated violence and theft. The rules of property law may currently support a peaceful, predictable system of private ownership, but the system originated as the honor among thieves.

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  1. Park cites to several news articles discussing the ongoing debate, for example, America’s History Wars, The Economist (July 10, 2021).
Cite as: Andrea Boyack, Honor Among Thieves: US Property Law, Conquest, and Slavery, JOTWELL (February 24, 2022) (reviewing K-Sue Park, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, 131 Yale L. J. 1062 (2022)), https://property.jotwell.com/honor-among-thieves-us-property-law-conquest-and-slavery/.