Sources of Land Rights: U.S.

Beginning in the 15th century, European colonists from many nations — some acting privately, many at the behest of or with the assistance of governments — claimed ownership of vast swaths of land and resources (including, in some instances, human beings) in North America, South America, Africa and Australia.

Colonial settlement, also known as settler colonialism, created at least three forms of competition for property rights: (1) between white European colonists and indigenous inhabitants of “newly discovered” lands; (2) between competing colonizing nations; and (3) between individual colonists.

If the rights of the indigenous inhabitants of those lands were recognized at all, it was only as a matter of convenience.  Colonialism used violence and even genocide against indigenous peoples whose claims of right colonists refused to recognize.  Among competing colonizing nations, war, treaty and customary international law were used to settle competing claims.  Among individual colonists, newly formed governments asserted the authority to settle competing claims through law.  All three of these conflicts can be seen at work in Johnson v. M’Intosh, an early effort by the Supreme Court to elaborate legal rules to justify the colonial expropriations.  As we see in the Tee-Hit-Ton Indians case,  the contradictions of American property law continue to form a basis for claims by the expropriated even today.

Land in the United States, after its “discovery” and expropriation by force or forced sales from the indigenous peoples, was distributed by the states, and by the United States. Land sales were an important source of revenue in the early 1800s. Land was distributed to speculators (like George Washington) by sale, or to white settlers and squatters by sale, homesteading laws, or by adverse possession laws.

Enslaved Africans, whose labor was expropriated before and after emancipation, were systematically excluded from the initial land distribution. The short-lived land reform efforts that followed the Civil War, such as General Sherman’s famous Field Directive number 15, promising 40 acres to formerly enslaved people, were quickly undone by the southern states’ white power structure. Whites seized land awarded to or purchased by African-Americans through the Black Codes, intimidation, violence, and legal tools including foreclosures, partitions and tax seizures. During the Great Migration of the early 20th Century, cities and towns in the South and the North used zoning laws and restrictive covenants to limit African-American home ownership to racially segregated neighborhoods, and the same neighborhoods were then redlined and excluded from mortgage financing by the Homeowners Loan Corporation in the 1930s and the Federal Housing Administration in the 1950s. Bank redlining and reverse redlining of these same neighborhoods continues today.

Understanding the history of land distribution and redistribution is vital for a critical perspective on modern U.S. property law rules and policies, including adverse possession, co-ownership and partition, fair housing and zoning laws, leases and installment sale contracts, and public accommodation laws, among others.