FEE SIMPLE FAILURES: RURAL LANDSCAPES AND RACE.

• Author: Shoemaker, Jessica A.

TABLE OF CONTENTS INTRODUCTION I. A SNAPSHOT OF RURAL LANDSCAPES TODAY A. Who Owns Agricultural Land B. Rural Demographics: Race, Geography, and Poverty C. Why This Matters (and Is Change Possible?) II. PROPERTY'S PREJUDICES: HOW RURAL LANDSCAPES GOT SO WHITE A. Indigenous Land Acquisitions and Conversions B. Denying Lands to Original Mexican Owners C. Slavery and Black Land Loss D. Mostly White (and Mostly Male) Homesteading E. The Closing of the Grazing Commons and Conservation. F. Alien Property Acts III. DECONSTRUCTING THE FEE SIMPLE A. Forever Rights B. Abstract Estates 1. The Privilege of Absent Heirs 2. Concentration and Financialization 3. Agriculture in the Shadows C. Allocating Land Retention and Land Loss 1. Inflating Land Values 2. Wealth-Retention Policies 3. Racialized Insecurity IV. RE-DESIGNING PROPERTY: NEW AGRARIAN FUTURES A. Current Policy Efforts and Ideas 1. Federal Action (and Inaction) 2. State and Charitable Endeavors B. Reform Approaches and Interest Convergence 1. Guiding Principles and Grand Challenges 2. Specific Strategies CONCLUSION "If you remember nothing else in your whole life, Cassie girl, remember this: We ain't never gonna lose this land. You believe that?" (1)

"Most importantly, we might forget that the land beneath our feet holds endless stories of struggle to claim it." (2)

"Land represents both a set of values and a store of wealth." (3)

NTRODUCTION

Property law bears a lot of responsibility. At its core, property is society's system for distributing valuable resources. (4) Through properly law, we decide who gets what and how our relationships around resources are defined and managed. This constructive power of properly law--to literally choose who has and who has not--was deployed at our country's birth to achieve a very particular vision of American identity. (5) America deliberately rejected Europe's history of feudalism, with its servient serfs working the inherited lands of a dominant lord and its entrenched class system. (6) Instead, America sought to build a society of equal opportunity and individual liberty, using private property (and agricultural property in particular) as the key instrument of this vision. (7) America offered individual homesteaders who invested their agricultural labor in land the strongest and most complete set of property rights imagined by law: the fee simple absolute. (8) With fee simple title, these owners enjoyed broad rights to control, sell, lease, use, possess, develop, and exclude others from a specific bounded space on the earth's surface--into perpetuity. (9)

The fee simple was designed to construct a specific set of social and economic incentives. (10) The land's owner--the original hardworking farmer--would profit directly from his own individual effort and investment. With secure, perpetual rights to a defined physical space, fee title also aspired to strengthen commitments to place and community. As an invested owner, the new farmer would be motivated to steward the land well for the future and to connect deeply with the surrounding community where land is located. (11) By distributing clear, exclusive property rights to widely dispersed individuals, the fee simple would give rise to a uniquely engaged group of landowning, enfranchised citizens, forming a more perfect republic. (12)

Or at least a more perfect republic for the chosen beneficiaries, because American agrarianism was also always explicitly coded in both gender and race. (13) America's western expansion was a project of race-based exclusion and control, using colonialism, slavery, and other blatantly racialized tactics to ensure that private landownership emerged in the image of the white yeoman-farmer ideal. (14) Indigenous land rights were displaced, in part because of a failure to recognize the value of Native agricultural practices and often the work of Native women in particular. (15) Instead, Native land claims were reimagined as a weaker property fiction called "Indian title"--a limited right of occupancy subject to one-way extinguishment by the federal government. (16) At the same time, enslaved people came to America treated as property and were forced to build and run the wealth-generating plantations of white agriculturalists. (17) Meanwhile, westward expansion across the new country was driven by allocation of homestead rights almost exclusively to white men. (18)

The result is an agrarian vision that still underlies so much of our national identity--the heroic, hardworking, wholesome (and almost certainly, white and male) farmer. (19) It is no accident that today 98 percent of agricultural lands remain owned and controlled by people who are white. (20) Nor is it accidental that some of this country's most notorious and persistent regions of concentrated poverty are both rural and racialized: the farming Black Belt of the Southeast, the Hispanic colonias along the southern border, and the Native American reservations of the Southwest and Upper Midwest. (21)

This is a complex story with many threads. In 2020, America is experiencing massive protests for racial justice. Much of this energy is centered on responses to police brutality in urban settings, but 2020 also brought us frightening coronavirus clusters among workers at highly industrialized--and rural--meatpacking plants and in tightly packed buses transporting migrant farmworkers from one enormous commercial field to another. (22) The workers getting sick in these plants and fields are overwhelmingly nonwhite, and many are vulnerable both in immigration and economic status. (23)

These COVID outbreaks underline other truths about the actual state of American agriculture. We have drifted far from our original stewardship ideals. American agriculture is dramatically industrialized and concentrated in the hands of a few powerful operators. (24) Meanwhile, rural communities have emptied as self-supporting, middle-class farmers disappear. (25) Farmlands are increasingly owned by fewer and more powerful landowners who manage operations, if at all, from a distance. (26) Indeed, many of the modern production contract arrangements and tenant farm dynamics that characterize our food-production system now look a lot more like the feudal systems the fee simple was supposed to prevent. (27) Although a significant group of new farmers and ranchers--disproportionately members of disadvantaged groups--wait in the wings with new commitments to sustainability and diversification, these potential innovators consistently cite an inability to access farmland as their number-one barrier. (28) Experts predict that as many as half of American farm acres will change hands in the next two decades; without a radical course correction, these acres are destined for pension funds, foreign investors, and even greater concentration in the hands of absentee landlords. (29)

So, where is property law in this? In this Article, I argue that property law is right at the heart of it. (30) In the beginning, a series of property-law choices systematically excluded people of color from original agricultural landownership. (31) This original sin of racialized exclusion still stains the entire project of American property law, but it does not end with those unfair advantages and disadvantages. Our property system is still designed to keep property in these racialized patterns. (32) The surprising thing may be how many of these original property features are now turning on white rural residents too, as property law has no response to the ongoing industrialization and exploitation of rural landscapes more generally. (33)

It is important to recognize these features of property law as what they are: choices. It is possible to imagine a different set of ownership institutions that produce more just, equitable, and sustainable rural outcomes. Outside of the rural context, property scholarship is doing good work by critically reexamining the fee simple itself. Ironically, much of this work has emphasized, as its predicate, how "not-rural" property law has become and suggested changes to the fee simple in light of specific changed conditions: growing wealth inequality outside of land ownership, (34) the increasingly urban nature of many high-density housing concerns, (35) and the potential for dramatic environmental and climate change globally. (36) Some of this work has stressed the fact that land use in modern society is "overwhelmingly urban." (37) Whereas the fee simple was originally designed for an agrarian society which land value was derived primarily from the land's ability to produce goods within the physical boundaries of the property itself, in urban settings land value is more likely tied to the property's location within a web of other dense, interconnected land users.

The aim of this Article is to explore the many ways the fee simple is not working for rural landscapes either. Here are two examples. The first stems from the fee simple's endlessness. (38) Although perpetual property rights were originally intended to encourage owner investment, security, and place-based attachment, in practice, the fee simple's endlessness has entrenched familial and generational wealth. Endlessness, exacerbated by recent reforms to make dynastic ownership and control easier to achieve, has entrenched historic racial disparities and now further facilitates continued white landownership--including in more concentrated and even absentee forms. As a result, minority farmers who are already less likely to inherit farmlands because their ancestors were excluded from agricultural landownership also face steep competition for increasingly valuable farmland assets. In this competition for new land, minority farmers are also less likely to come to the table with generational wealth (in part because of this same ancestral exclusion) and more likely to face private discrimination in the transaction. (39)

Second, the fee simple's...