Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2021 The History Wars and Property Law: Conquest and Slavery as Foundational to the Field K-Sue Park Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2361 https://ssrn.com/abstract=3793972 131 Yale L. J. ____ (forthcoming). This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Law and Race Commons, Legal Education Commons, Legal History Commons, and the Property Law and Real Estate Commons July 28, 2021 2021 THE HISTORY WARS AND PROPERTY LAW: CONQUEST AND SLAVERY AS FOUNDATIONAL TO THE FIELD K-SUE PARK* This article addresses the stakes of the ongoing fight over competing ver- sions of U.S. history for our understanding of law, and specifically, property law. Insofar as legal scholarship has examined U.S. law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic: expropriated lands and en- slaved people. Though conquest and enslavement were key to producing prop- erty for centuries, that is, property law scholars have constructed the field of property law to be largely devoid of these histories and without a strong con- ception of the formative role of race. As a result, recent movements to reinte- grate these topics to the field generally reflect a broader trend in the legal academy of treating race as an elective rather than fundamental topic. This ar- ticle shows these histories contain insights that are crucial for understanding their legacies in our present legal system. It offers an account of how the cur- rent conception of the field of property law evolved, and what we learn from * Associate Professor of Law, Georgetown University Law Center. I am grateful to Greg Ablavsky, Amna Akbar, Lauren Benton, Bethany Berger, Sheila Foster, Priscilla Ocen, Claire Priest, Emily Prifogle, and Joe Singer, as well as to participants in Michigan’s Race and Property in Historical Perspective workshop, Jonathan Feinberg’s Advanced Critical Race Studies seminar, Russell Robinson’s Critical Race Theory seminar, Claire Priest and Taisu Zhang’s Advanced Property Law Course, Loyola’s Race and the Law Colloquium, Yale’s Race and the Law Colloquium, and the Yale Legal History Forum, for helpful feed- back and comments. Many thanks also to Thanh Nguyen, Tammy Tran, Victoire Saper- stein, Rikisha Collins, Taylor Ridley, Jane Kilgore, and Ashley Burke for excellent editorial and research assistance. I first conceptualized this paper in conversations with Maggie Blackhawk. Guy Charles’ insights and Bill Wood’s moral support helped me finish it. This paper is dedicated to the memory of my colleague and friend Anne Fleming, who read the first draft of this paper shortly before she passed away one year ago, and as with everything she did, made it immeasurably better. 2 K-SUE PARK* suppressed histories. It shows that the histories of conquest and enslavement explain aspects of the system—its construction of jurisdictions, property value, ground-level institutions, and organization of force, for example —that belong at the core of the curriculum and the field. First, it examines patterns of erasure in the property law canon to explore how we came to understand property law as primarily a collection of doctrines derived from English law regulating relations between neighbors. It uses prop- erty law casebooks as an index, and offers the first comprehensive study of the tradition. This analysis shows that many of the norms of erasure and validating racial hierarchy that casebooks exhibit were set during the period of their emergence, the time of the formal close of the frontier and the era of Jim Crow. It was not until the 1970s that casebooks began to critically examine the histo- ries of conquest and slavery for the first time, but the query into their conse- quences for the property system has remained partial and inconsistent. I then examine three ubiquitously taught topics in property law—discov- ery, labor, and possession— in light of the contexts in which they arose, to highlight their role in the creation of new markets for land and people in early America. I show that Marshall’s iteration of the Discovery Doctrine drew from an international legal tradition that authorized European conquests and the transatlantic slave trade; further, it established racial hierarchy as the basis of U.S. jurisdiction and trade in lands. In addition to affirming that hierarchy, as scholars have shown, the labor theory also captured the ways that colonists’ at- tributed property values to land and people only when they came into white possession. I further argue that the labor of enclosure and property creation in- cluded legal work: beyond agricultural labor, laws making enslavement racial, permanent and hereditary, and establishing systems the rectangular survey, comprehensive title registry, homesteading incentives, and easy mortgage fore- closure. Finally, taking possession of property in this context entailed a process of dispossession, turning the principle of honoring possession on its head. Looking at possession as part of the Discovery rule and fugitive slave laws re- veals that the state largely delegated enforcement of possession-- and the con- comitant racial violence of dispossession-- to private actors, in ways that simul- taneously invested them in property interests and racial hierarchy. This article opens a new inquiry into what these long buried histories teach us about property law. It argues that they are indispensable for under- standing the unique fruits of the colonial experiment that define American prop- erty law today— the singular land system that underpins its real estate market and its structural reliance on racial violence to produce value. CONTENTS 2015 131 YALE L. J. ___ (forthcoming) 3 I. HISTORICAL ERASURE IN PROPERTY LAW CASEBOOKS ............................... 7 A. The Erasure of Conquest ..................................................................... 9 B. The Erasure of Slavery ...................................................................... 14 II. DISCOVERY AND THE RACIAL HIERARCHY OF COMMERCIAL EMPIRE ........ 23 III. THE LABOR OF PROPERTY CREATION IN THEORY AND PRACTICE .............. 29 A. The Labor Theory and Property Value................................................ 30 B. Producing Property and Property Law in the Colonies .................... 35 IV. POSSESSION BY DISPOSSESSION ................................................................. 45 A. The Homesteading Principle: Conquest by Settlement...................... 46 B. Property Against Human Self-Possession ......................................... 50 V. EXPROPRIATION & THE CREATION OF AMERICAN PROPERTY LAW ............ 57 VI. CONCLUSION ............................................................................................. 61 We are in the midst of an ongoing fight over competing versions of U.S. history—an old struggle, older than the nation itself, and currently in a period of high resurgence.1 After an Executive Order banning Critical Race Theory last year, eight states passed legislation seeking to limit, control, or eliminate teaching about race and histories of racial violence in America in schools, and twenty more states and school boards across the country are considering similar measures. This controversy has also reignited a row over the content of text- books that recurs because of their importance in determining what young peo- ple will learn and consider fundamental about American history.2 This fight, at bottom, revolves around the question of whose story we will make the official story of the nation, and what our collective reference point for imagining a fu- ture will be—whether we will reinstall a story from the perspective of one long dominant group, or build a story to include the experiences and views of all. 1 America’s History Wars, THE ECONOMIST (July 10, 2021), https://www.econo- mist.com/united-states/2021/07/10/americas-history-wars; Rebecca Onion, A Brief History of the History Wars, SLATE (Aug. 20, 2019), https://slate.com/news-and-poli- tics/2019/08/1619-project-conservative-backlash-history-wars.html; Olivia B. Waxman, Trump’s Threat to Pull Funding From Schools Over How They Teach Slavery Is Part of a Long History of Politicizing American History Class, TIME (Sept. 17, 2020), https://time.com/5889051/history-curriculum-politics/; Matthew Karp, History as End, HARPER’S MAGAZINE, July 2021, https://harpers.org/archive/2021/07/history-as-end-poli- tics-of-the-past-matthew-karp/; see also JEAN O’BRIEN, FIRSTING AND LASTING: WRITING INDIANS OUT OF EXISTENCE IN NEW ENGLAND (2010). 2 Rashawn Ray and Alexandra Gibbons, Why Are States Banning Critical Race Theory? BROOKINGS, July 2021, https://www.brookings.edu/blog/fixgov/2021/07/02/why-are-states- banning-critical-race-theory/; Safia Samee Ali, Amid Growing Critical Race Theory Legis- lation, Education Experts Say Textbook Content Could Be Next, NBC NEWS (July 10, 2021) https://www.nbcnews.com/news/us-news/amid-growing-critical-race-theory-legislation-ed- ucation-experts-say-textbook-n1272682. 4 K-SUE PARK* This article demonstrates that the fight over competing versions