\\jciprod01\productn\N\NYU\89-1\NYU102.txt unknown Seq: 1 20-MAR-14 16:31 ARTICLES THE BLACKS WHO “GOT THEIR FORTY ACRES”: A THEORY OF BLACK WEST INDIAN MIGRANT ASSET ACQUISITION ELEANOR MARIE LAWRENCE BROWN* The impediments to property acquisition and market success among African Americans are a significant area of inquiry in legal scholarship. The prevailing narrative on the historical relationship between Blacks and property is overwhelm- ingly focused on loss. However, in the political science, economics, and sociology literatures there is a countervailing narrative of successful property acquisition and retention among what might be termed a “market dominant” subset of migrant Blacks. The most successful subset of Black property owners in the United States * Copyright © 2014 by Eleanor Marie Lawrence Brown, GWIPP Fellow and Associate Professor of Law, George Washington University Law School; J.D., Yale Law School (1999); M.Phil. Politics, Oxford (1997) (Rhodes Scholar). Former Schwartz Fellow, New America Foundation; Former Chairman of the Jamaica Trade Board; Former Reginald Lewis Fellow, Harvard Law School; Former Law Clerk to the Honorable Patricia Wald (ret.), U.S. Court of Appeals for the District of Columbia Circuit; Former Law Clerk to the Honorable Keith Ellison, U.S. District Court for the Southern District of Texas. I have benefited from workshops at the law schools of the University of North Carolina (Chapel Hill), the University of Southern California, Fordham University, the University of Notre Dame, the University of Minnesota, George Washington University, and the University of Chicago, as well as the CRT colloquium jointly sponsored by Columbia and Fordham Law Schools and the Property colloquium at Fordham Law School. Comments received at the Lutie Lytle Conference for Black Female Legal Scholars and the American Society of Comparative Law Workshop were particularly helpful. I have also benefited from conver- sations with or comments from Bruce Ackerman, Orlando Patterson, David Wilkins, Kendall Thomas, Olati Johnson, Dorothy Roberts, Bernadette Atuahene, Lee Fennell, Guido Calabresi, Frank Upham, Sonya Katyal, Dan Kelly, Paul Butler, Marcella David, Dan Sharfstein, Paulette Caldwell, Mary Dudziak, Nestor Davidson, Ruth Okediji, Jill Hasday, Scott Kieff, Hari Osofsky, Dan Sokol, Camille Gear, Nomi Stolzenberg, Karen Brown, Kevin Johnson, Charles Ogletree, Ken Mack, Steve Legomsky, Jim Coleman, Nicole Garnett, Kimani Paul-Emile, Brad Snyder, Devon Carbado, Cindy Hahamovitch, Aubrey Bonnett, Calvin Holder, Adam Cox, Anne Alstott, Arden Rowell, Jennifer Gordon, Peter Schuck, Eduardo Penalver, ˜ Joe Singer, Henry Smith, Richard Brooks, David Martin, Peter Henry, Angela Banks, Angela Onwuachi-Willig, Tomiko Brown- Nagin, Audrey McFarlane, Lant Pritchett, Dillon Alleyne, Neville Lewis, Tony Harriott, Richard Bernal, Kerry Abrams, Stephen Lee, Eric Posner, Sylvia Lazos, Alison Tirres, Deep Gulasekaram, Naomi Cahn, David Fontana, Carol Rose, Robert Ellickson, Claire Priest, Rose Villazor, Wendy Greene, Ernesto Hernandez-Lopez, Renee Lerner, Jackie Ross, Maximo Langer, Kim Lane Scheppele, Jerry Davila, Daniel Hamilton, and Bob Cottrol. I am grateful to the librarians and/or archivists at the University of the West Indies, the Planning Institute of Jamaica, the Caribbean Community (CARICOM) Secretariat, the Ministry of Labor and the Statistical Institute of Jamaica. Finally, I am grateful for the aid of my research assistants, Diane Eikenberry, Jared Stipelman, and Jenna Brofsky. 27 \\jciprod01\productn\N\NYU\89-1\NYU102.txt unknown Seq: 2 20-MAR-14 16:31 28 NEW YORK UNIVERSITY LAW REVIEW [Vol. 89:27 today are descendants of Black migrants who were enslaved outside the United States. These free Black migrants, overwhelmingly British subjects originating from the West Indies, are largely invisible in the legal scholarship. Questions have arisen in other disciplines about what differentiated this subset of Black people. Why was their experience of property ownership so different? Debates in the sociology, political economy, and political science literature have often focused on what Francis Fukuyama has controversially termed “cultural questions,” namely, the view that early West Indian migrants—like Korean or Japanese migrants—possessed a particular set of cultural traits that were distinctly well suited to asset acquisition. This Article focuses on a far more prosaic rationale, contending that the success of West Indian migrants may be rooted in the early grant of what I term “de facto property and contract rights” to West Indian slaves, which allowed their freedmen descendants to become the largest independent Black peasantry in the Americas. Between 1880 and 1924, U.S. immigration officials may have inadvertently selected for propertied migrant “types” when admitting immi- grants. Through their own historical exposure to property and contract rights frameworks in the West Indies, as well as internal communal networks which sup- ported informal banking schemes, these Blacks were particularly well placed to take advantage of opportunities for home and business ownership upon arrival in the United States. The broader point is that there is a glaring omission amidst the “cultural” contro- versy: What about law? I use the term “law” in this context as it is used by many proponents of new institutional economics, as a proxy for an institutional frame- work that supports property acquisition, regardless of whether this framework is formal (state-supported) or customary. Moreover, the law and economics scholar- ship has focused extensively on institutional frameworks that allow certain religious and ethnic groups to dominate particular sectors, such as Orthodox Jews in the diamond industry or Koreans in the grocery sector. The insights of this literature allow us to interrogate whether Black West Indians had early access to institutions that facilitated contracting and property ownership and if so, whether this institu- tional history might contribute to their long-term asset acquisition patterns. The question necessarily arises: Why would we think of Black migrants any differently from the way we think of other ethnic and religious minorities who have been suc- cessful asset acquirers? INTRODUCTION ................................................. 29 R I. USING PROPERTY TO MIGRATE ......................... 41 R A. The Connection Between West Indian Immigration and Property Ownership Prior to Migration ........ 42 R B. An Alternative Account of West Indian “Exceptionalism”: How West Indian Property Ownership Prior to Migration Influenced Property Acquisition in the United States ..................... 49 R II. THE EVOLUTION OF A FREE BLACK LANDOWNING CLASS ................................................... 56 R A. Evolution of a Landowning Class: Reflections on the Economics Literature and Census Data ............. 56 R B. Order Without Law: The Dominance of Customary Practice ............................................. 68 R C. The Evolution of Constructive Property “Rights” ... 73 R \\jciprod01\productn\N\NYU\89-1\NYU102.txt unknown Seq: 3 20-MAR-14 16:31 April 2014] THE BLACKS WHO “GOT THEIR FORTY ACRES” 29 III. SLAVES AS CONTRACTORS .............................. 75 R A. Slaves as Merchants ................................. 75 R B. The Transition to Formal Property Ownership and Acquisition Among the Newly Freed ................ 82 R CONCLUSION ................................................... 85 R INTRODUCTION In a landmark reflection on the interplay between markets and ethnicity, Amy Chua writes that “[i]n First World countries, markets have tended to reinforce the economic dominance of a perceived ethnic majority over those countries’ most salient ethnic minorities.”1 However, in the United States, sometimes the market-dominant groups are not “perceived ethnic majorities,” such as Whites, but instead other ethnic minorities, such as Korean Americans.2 Indeed, Chua characterizes Korean Americans—who are disproportionately likely to own businesses in inner-city neighborhoods compared with their representation among the neighborhood’s residents—as “an increasingly glaring market-dominant minority vis-a-vis ´ the relatively economically depressed African American majorities around them.”3 This market dominance has been cited as a primary source of racial tension, culminating at times in boycotts of Korean businesses.4 The calls for “market-correcting”5 affirmative action programs for racial minorities are rooted in this example.6 However, these calls 1 Amy L. Chua, Markets, Democracy, and Ethnicity: Toward a New Paradigm for Law and Development, 108 YALE L.J. 1, 5 (1998). 2 Chua’s use of ethnicity has been criticized by scholars of ethnicity. See, e.g., Nicholas Tarling & Edmund Terence Gomez, Introduction to THE STATE, DEVELOPMENT AND IDENTITY IN MULTI-ETHNIC SOCIETIES: ETHNICITY, EQUITY AND THE NATION 1, 1–7 (Nicholas Tarling & Edmund Terence Gomez eds., 2008); Jill Goldenziel, Fire Prevention: A Book Review of Amy Chua’s World on Fire, 23 UCLA PAC. BASIN L.J. 78 (2005). 3 AMY CHUA, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS ETHNIC HATRED AND GLOBAL INSTABILITY 207 (2003). 4 One need only recall the final scene of director Spike Lee’s well-known movie Do the Right Thing, in which an angry crowd of African Americans threatens a Korean super- market. DO THE RIGHT THING (Universal Pictures 1989). This tension is discussed throughout Kyeyoung Park, Use and Abuse of Race and Culture: Black-Korean