Excerpted From: Sherally Munshi, Dispossession: An American Property Law Tradition, 110 Georgetown Law Journal 1021 (May, 2022) (470 Footnotes) (Full Document)


SherallyKMunshiThe protests in Ferguson, the resistance at Standing Rock, the election of a president swept into office on a tide of white grievance events have precipitated a momentous shift in political consciousness. White Americans who, a decade earlier, celebrated the arrival of a post-racial era have been forced to confront the durability of structural racism. A global pandemic has revealed our basic incapacity to meet collective needs, exposing millions to death, hunger, and homelessness. After the killings of Ahmaud Arbery, George Floyd, and Breonna Taylor, lockdown gave way to mass uprising, as Americans called not only for an end to police violence but for a radical reimagining of the institutions and ideas that govern collective life.

As protests spill onto college campuses, students have demanded that their institutions acknowledge their own relation to racist pasts. Statues have been removed and building names have changed, but much remains the same. Academic conferences now open with formal ceremonies acknowledging the Indigenous peoples on whose stolen land we convene, but these gestures of “land acknowledgement” come at a moment when Indigenous peoples themselves demand “land back.” The celebrated beneficiaries of reparations groan, “not enough.” As colleges and law schools tout their diversity, debt-burdened graduates suspect predatory inclusion. Institutions of higher learning, in other words, have not only failed to come to terms with their historic entanglement with colonialism and slavery, they have yet to acknowledge their role in perpetuating the ideological and material conditions of racial capitalism.

As mounting crises give way to an unprecedented willingness to confront the legacies of colonialism and slavery, what role does legal education have to play in reimagining our collective institutions and social arrangements? What would it mean to decolonize--not diversify--legal education and thought? This Article seeks to engage those questions by considering the role that property law has played in perpetuating forms of racialized dispossession.

The United States was, of course, founded in conquest and slavery, both forms of racialized dispossession. Property law allowed settlers to turn the earth into real estate and to establish markets in people. The prospect of ownership turned free white people into the agents of colonial expansion and racial exclusion. Property law gave structure and legitimacy to these processes and was, in turn, transformed by them. Though this much may be obvious by now, it is hardly acknowledged within legal education. Instead, the traditional property law curriculum--with its narrow focus on formal doctrine and technical rules--tends to reify existing property arrangements, offering techniques for the management of routine controversies rather than stimulating normative question or critique.

The normative justifications for property themselves have not changed much in a century. Casebooks and treatises often devote a few opening pages to exploring the foundational justifications for property law--Locke's labor theory of private property, Jeffersonian ideas associating property with freedom from tyranny, Bentham's principle of wealth maximization, Hegel's association of private property with personal development. These are generally rooted in the ideals of enlightenment liberalism, a political and philosophical tradition which, not coincidentally, was itself shaped by the experience and imperatives of settler colonialism and transatlantic slavery. In the property law canon, these ideas are often presented--as within political liberalism--as timeless revelations, obscuring their material relation to the histories of colonization and slavery that have shaped American law.

Perhaps more than other areas of study, property does evoke a sense of history, but it is a deceptively curated history, one that situates the origins of our tradition in the English pasture rather than the American plantation. Organic metaphors of bundled sticks tend to naturalize the most brutal innovations of the American property law traditions--innovations that would reduce sovereign nations to tenants and splinter persons into property. Casebooks illustrate the first-in-time principle with cases involving fox hunts and fishermen, lending property law an air of earthy common sense, while offering only the most cursory response to the question that nags at most students: weren't Indians here first?

Students instead learn to puzzle through the rule against perpetuities, as though this hazing ritual were the most difficult part of the legacy they inherit. Judging by the material included and not included in most casebooks, students are likely to spend more time on fugacious elements, oil and gas, than fugitive slaves--to say nothing of the freedom suggested by their flight. Much of what is covered on the bar exam concerns the intergenerational transfer of wealth, though Black and Brown families have relatively little to pass on. Homelessness is almost never mentioned, though half a million Americans are unhoused and a quarter of Americans face housing insecurity. This is because property law, as students discover, remains firmly rooted in the interests of owners rather than the provision of shelter.

Why do we continue to tell these same stories? For whom are they written? And what other stories do we have to tell instead? This Article attempts to disrupt the story that property law tells about itself by offering dispossession as a counter-narrative and by providing a critical framework through which we might reevaluate the role that property has played in shaping American life. As a counter-narrative, dispossession underscores the constitutive role that colonialism and slavery have played in shaping contemporary forms of racial capitalism and liberal democracy. Racialized dispossession describes what has long been the normative object of American property law: to secure the conditions of self-sufficiency considered necessary for the exercise of freedom, equality, and self-government for a racially exclusive “citizen race” through processes of economic expansion that rely on the expropriation and exploitation of racialized others--Indigenous, Black, and immigrant.

As a framework of analysis, dispossession offers a corrective to the abstracting and ahistorical tendencies of political liberalism, which gain authority and defend their legitimacy by disavowing the conditions of their articulation, including but not limited to colonialism, slavery, racial capitalism, and patriarchy. Dispossession restores to the formalism of property law doctrine the complexities of history and context, the social and spatial dimensions of property, and the ways in which it produces and differentiates us as subjects. As a tool of critical analysis, dispossession foregrounds the relational character of private property. Where a traditional focus on rights and duties perhaps tends toward a static construction of the world governed by property, dispossession emphasizes the dynamic and dialectical relation between accumulation and deprivation, private ownership and social abandonment, white possession and racialized expropriation. Where private law generally suffers from a methodological individualism, taking for granted the possessive individual as the subject of property rights, dispossession emphasizes the historical, structural, and intergenerational character of property relations. We are not, with every generation, born anew.

Insofar as the account of dispossession developed here emphasizes the relational character of property, it is sympathetic to the work of progressive property scholars. But where “The Statement of Progressive Property” cautiously avoids any mention of race, I maintain that it is impossible to understand what property law is, has been, or should be in the United States without an earnest engagement with histories of racialization, settler colonialism, and racial capitalism. And where progressive property scholars offer a redemptive vision of property, hopeful that it might be reoriented toward “human flourishing,” the critique of property advanced here is far more pessimistic. Particularly as we confront the ecological disaster hastened by colonial capitalism, we have no choice but to imagine radical alternatives.

This Article is not the first to revisit histories of colonialism and slavery in the context of American property law. I am indebted to the work of legal historians and critical race scholars working across disciplines. But my aim here is to offer a critical conceptualization and counter-narrative of property that speaks to the urgencies of our historic moment. It is to complicate our understanding of property law by critically reevaluating its past and perhaps reimagining its future. In recent years, the term “dispossession” has erupted into public and academic discourse to challenge economic relations generally rationalized within liberal discourse. In Part I, I offer a brief survey of this emergent discourse and argue that dispossession may be useful to legal analysis, among other reasons, because it confronts us with the material inequality reproduced by property but often obscured by liberal discourse and neoliberal rationality.

Part II offers a resituating of Johnson v. M'Intosh within the property law canon. The case, often read in the first days of law school, has come to perform the work of a land acknowledgement ceremony. We ceremonially acknowledge the wrong but then carry on with the routine business of property law. As such, Chief Justice Marshall's opinion in the case models a posture of judicious resignation, while rehearsing narratives and reasoning that have allowed white Americans to reconcile themselves to practices of racialized dispossession--from homesteading to redevelopment. Johnson v. M'Intosh also set in motion a history of federal land distribution that is often elided from the study of property, though that history demonstrates, among other things, how property law recruited prospective white owners to become the agents of Indigenous dispossession, colonial expansion, and racial exclusion and expulsion.

Part III traces the afterlife of slavery in contemporary property regimes. Within the property law canon, the legacy of slavery is often reduced to a com-modification of human bodies, for instance, in controversies involving the property interests in human embryos, organs, and tissue. But this construction both misunderstands the institution of slavery and obscures the ways in which its legacy continues to haunt nearly every aspect of life. Since the killing of Michael Brown, scholars and activists have drawn a line of continuity between slavery, racial policing, and mass incarceration.

Here, I attempt to bring into focus a less appreciated line of continuity--in property. The law of slavery continues to shape the ways in which we are differently constituted as persons--as propertied citizens or expropriable subjects--and the ways in which landscapes of police encounters have been shaped by the imperatives of racial capital.

Whiteness is property, Cheryl Harris argued, because it confers racial status. In Part IV, I extend Harris's insight to argue that property also creates racialized subjects. Whiteness is not only a form of value, but a form of license, agency, or personhood, cultivated by law to recruit and reward white participation in regimes of racial capitalism. In that sense, the claim that whiteness is dispossession shifts our focus from legal form to social formation, from racial status to racialized subjectivity. In this Part, I also revisit Margaret Jane Radin's influential “personhood theory” of property to explore the historical relation between possessive personhood and racial embodiment, often ignored within legal discourse.

There is no doctrinal solution to the problems created by colonial capitalism. Instead, addressing the crises of capitalism will require of us the political will to abandon ideas and practices that we recognize to be morally indefensible and practically unsustainable. For this reason, this Article is primarily committed to a project of critique and historical recovery: understanding the ways in which property law is complicit in reproducing regimes of racialized dispossession is a necessary first step to imagining alternatives. But I conclude by suggesting that, rather than confine ourselves to the instruments of law, we might fashion alternatives to the present by studying practices that have flourished under, alongside, and against colonial capitalism, especially those growing out of Indigenous and Black liberation movements.

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Drawing on the work of scholars and activists engaged in postcolonial, Indigenous, and Black radical traditions, this Article has offered a critical counter-narrative of the American property law tradition. If we want to reorient property law to better serve our collective needs and aspirations, we have to disabuse ourselves of the expectation that legal analysis as usual might lead us toward a solution to our problems. As I have tried to demonstrate here, property law has largely avoided confronting its entanglements with colonization and slavery, perhaps because such a confrontation would require a radical reconsideration of the way in which property law is studied and practiced. Legal analysis has been part of the problem.

Insofar as the property law tradition has been sustained by colonial disavowal and racial amnesia, it will require a break from the established conventions of that tradition. We have to begin to imagine an alternative to the kinds of inequality that structure our present. As Lisa Marie Cacho suggests, “[i]f we suspend the need to be practical, we might be able [to] see what is possible ....”

Decolonization cannot originate within the epistemological framework of colonial capitalism. An ongoing process of epistemic and ethical reorientation, decolonization requires that we look to and learn from practices that have flourished not before or outside colonial capitalism, but alongside it, in spite of it. “Decoloniality,” Walter Mignolo's preferred formulation, is not a reversal of colonialism or its transcendence but an available alternative or “option.” To recognize that we have options means that we do not have to wait for a revolution, nor do we have to consent to perpetuate what we recognize to be unequal and unsustainable arrangements and practices. As Mignolo writes, “decolonial options start from the principle that the regeneration of life shall prevail over primacy of the production and reproduction of goods at the cost of life.” In terms of property law, it means that in our individual and professional capacities, we can choose policies, practices, and pedagogies that advance collective well-being over self-interest, reciprocity over expropriation, sustainability over exhaustion.

To recognize that we have options requires reevaluating and revaluing disavowed forms of knowledge and practice. Consider, for instance, the recent interest in Indigenous knowledge after another deadly season of wildfires in California. Officials in California have appealed to Indigenous leaders to learn how traditional practices of controlled burning might be used to manage a crisis created by overdevelopment, worsened by climate change, and now contained primarily by imprisoned fire fighters. Indigenous scholars and activists have gone further to insist that an essential strategy for redressing climate change is returning Indigenous land. Insofar as the study of property law remains ignorant of and indifferent to Indigenous practices of land stewardship or the radical imaginary of fugitives, it perpetuates its founding violence and forecloses alternative futures.

To imagine our way beyond the enclosures of colonial capitalism and the exhaustion of colorblind liberalism, we can look to and learn from the resurgent practices of racialized communities that have been historically devalued and dispossessed. Since the uprisings in Ferguson and at Standing Rock, for instance, Black, Indigenous, and allied activists have begun to develop blueprints for an alternative future, as they respond to a cascade of crises now convulsing American life--mass incarceration, racial policing, gendered inequity, extreme precarity, environmental disaster, and endless war.

The Movement for Black Lives has broadly called for a divestment from policing and imprisonment and a reinvestment in “long-term safety” secured through public education, protected employment, a livable income, and access to housing, health care, and child and elder care. The group has called for a divestment from extractive industries, which displace Indigenous peoples and perpetuate environmental racism, and a reinvestment in “community-based sustainable energy solutions.” It also promotes participatory budgeting and democratic control over economic development in its own neighborhoods as well as support for community-led experiments in the creation of affordable housing and decommodification of land, namely through community land trusts and cooperatives.

In solidarity with these initiatives, Indigenous feminists set forth a vision for a “regenerative economy,” one that advances the cause of environmental repair and sustainability while centering “Indigenous sovereignty and black liberation.” A regenerative economy, according to the Indigenous Environmental Network, is “based on ecological restoration, community protection, equitable partnerships, justice, and full and fair participatory processes.” Apart from ensuring clean air, water, and food to everyone, the regenerative economy the group envisions is oriented toward recognizing the value of reproductive labor and caretaking and practices that are life-affirming and community-building. The Red Nation, a collective of Indigenous feminists, in uncompromising terms calls for an end to colonial capitalism, recognizing that it is premised on and perpetuates violence and inequality: “We do not seek a milder form of capitalism or colonialism--we demand an entirely new system premised on peace, cooperation, and justice.”

In Oakland, California, where there are enough vacant homes to house the unhoused, one organization, Moms for Housing, has staged an occupation of foreclosed homes, “stolen from the Black community in the subprime mortgage crisis.” The occupation demonstrates, as one advocate put it, that “[t]ogether we can take Oakland back from the big banks and real estate speculators. We need a new paradigm in thinking about private property .... [T]his is the first step.” In response to the occupation, California passed a bill preventing large investors from purchasing foreclosed homes in volume, and one corporate owner offered to sell its portfolio to the Oakland Community Land Trust. After the killing of George Floyd in Minneapolis and mass protest in the midst of a pandemic, activist volunteers turned an empty hotel into an emergency shelter for 300 unhoused people, disrupting a common sense about who owes who what, and rehearsing forms of mutual aid, care, and repair.

These various platforms and projects are not always consistent with one another, but they have in common a commitment to collective flourishing without reproducing the constitutive divisions of settler colonialism and racial capitalism. These experiments, however imperfect, represent both a longing and a capacity to reorient our institutions, away from individualism and accumulation, toward mutual care and collective responsibility.

Finally, as we confront climate disaster, itself an effect of colonial capitalism, we have to reclaim from property law the question posed by colonizers: to whom does the Earth belong? It can no longer be that it belongs to those who use it most intensely, exhaustively, or to the exclusion of all others. “The political in our time,” Achille Mbembe argues, “must start from the imperative to reconstruct the world in common.” For many of us, the beneficiaries of colonial capitalism, to rehearse commonality and to enter collectivity will require us to reimagine who we are, and to give something up--our attachment to possessive personhood at the very least.

Sherally Munshi, Associate Professor of Law, Georgetown University Law Center.