Excerpted From: Tom I. Romero, II, The Color(blind) Conundrum in Colorado Property Law, 94 University of Colorado Law Review 449 (Spring, 2023) (462 Footnotes) (Full Document)


TomRomerorI recently wrote an article detailing the long-time struggle of the Rocky Mountain West's legal institutions to reconcile the region as both a utopia of racial promise and progress and one replete with countless examples of state-sanctioned racial violence and Jim-Crow-type racial discrimination. The result, I argue, has been a nearly ubiquitous blindness to acknowledge and deal forthrightly with deep-rooted racial inequities that continue to resonate to this very day.

Many observers of Colorado, like the journalist Isaac Jones when he visited Denver in 1952, believe that a “color line” does not exist in the state. The superficial and surface layer perception that race and racial inequity seemingly were absent and never an issue in the state has therefore allowed many of those living and leading in the state to either conveniently ignore or explain away the ongoing harm of racism and racial disparity.

This Article explicitly centers Colorado and its property law regime at the center of this conundrum. Property has long served as the nation's most important determinant of the color line by marking boundaries, enforcing access, and defining spaces, places, and things. In the process, the creation, promotion, and protection of property rights gives substantive meaning and power to racial ideas, ideologies, and values in the United States.

Despite this, when it comes to thinking about property in Colorado, most Coloradans have chosen to simply ignore any racial connections. Two examples, drawn from my own experiences at the University of Denver (DU), serve to illustrate the point. The first experience occurred a few years after I joined the law faculty in 2010. A student who had an interest in racially restrictive covenants wrote a research paper about their widespread use in the Denver area. Affixed to his final paper were several racially restrictive covenants he located in deeds and plat maps recorded in the offices of the city and county of Denver. Among them were the covenants for the Burns Brentwood development, a post-World War II housing project in what would become the larger Harvey Park neighborhood southwest of downtown Denver.

What made this covenant stand out for me was that the first name on the document was Franklin L. Burns, the namesake of DU's Real Estate and Construction Management School. According to DU's own website:

[The] school is named for Denver native Franklin Lane Burns (1914-1983), a visionary home builder. He was one of the first builders to bring affordable housing to lower-income families and returning WWII veterans. He was acclaimed as Denver's premier home builder in the 1940s and 1950s. Franklin and his wife Joy Burns made a $5 million endowment in 1997, which effectively changed the real estate department into a “school.” The Burns School will forever be grateful for the generosity and faith of Franklin and Joy Burns, and will always work hard to be an expression of their pioneering spirits.

A local and former DU student who came to take over the family-owned Burns Realty and Trust business in the early 1940s, Burns had long been valorized as one of the most important engines driving Denver's real estate growth. According to one account, Burns had built more than 13,500 residential and commercial buildings in many of the city's well-known neighborhoods, especially those housing former servicemen and their families. His wife, Joy Burns, would eventually serve as a member of the university's board of trustees until her death in 2020. In all the public celebrations and documentation of Frank Burns's life and contributions to the city's real estate market, however, not one single mention is made of Burns's role in contributing to the racial segregation of the city.

For universities, names that are affixed to their buildings, chaired positions, academic units, stadiums, and endowments (to name but a few) are centrally important to the value universities have created around their brands. As names are substantial property interests, countless universities have had moments of public reckoning when those names have been associated with members of the Klu Klux Klan (KKK or the Klan), anti-Chinese hatred, former slaveholders, and those involved in the genocide of the nation's Indigenous Peoples. The names--at one time valuable assets precisely for conveying exclusion and racial superiority at historically White colleges and universities--have not sat comfortably in the context of spaces and places that are increasingly diverse and non-White.

Despite this tension, many universities, including DU, have chosen to either ignore or justify these names as being something altogether more than the sum of their parts. The second example from DU comes from the “Pioneer” moniker adopted by the university in the 1920s to replace its “Fighting Ministers/Parsons” nickname. The process to find a new moniker started with the students who, along with university leadership, eventually settled on the idea of the Pioneer. Unsurprisingly, and certainly in the context of the time, all the imagery associated with White, westward expansion and settlement--including dressing in Native American regalia and the prominent displays of male settlers and cowboys reinforced popular concepts of White settlers as civilizers and Indigenous Peoples as savages. DU's Pioneer, accordingly, came into corporeal form when Disney studios in 1968 created the first of only two mascots the studio ever designed for higher education: Boone. According to one account, the name of the mascot “was a play on the name Daniel Boone.” Not far from the university, in Denver's city center, a memorial to Kit Carson, the grandson of the real Daniel Boone, stood prominently as a “proud and unchallenged” monument to White settlers' “conquest of western lands and peoples.” Ironically, Boone nearly vanished in the early 1980s “when the student body rejected him as too wimpy and wanted a more masculine prototype.”

In spite of this challenge, Boone remained the university's literal representation of the Pioneer until 1998 and remains both a beloved and problematic, if unofficial, mascot for the university to this very day. Nevertheless, the Pioneer moniker and its Boone corporeal form have continued to divide the university and large groups of students and faculty have repeatedly asked for its elimination. Such calls magnified after the publication of the university's John Evans Report in 2014--part of the larger efforts of remembrance and reconciliation tied to the university's sequential celebration.

Of particular importance was the report's own conclusion that DU's founder-- John Evans--who was also Governor of the territory of Colorado, was culpable for the incitement that led to the slaughter of Arapaho and Cheyenne elders, women, and children wintering on the banks of the Sand Creek in 1864. In a bloody campaign led by founding DU Board of Trustee member, Col. John Chivington, between 400-500 Indigenous people died that day. Chivington's troops returned to Denver displaying scalps, body parts, and other “trophies” from their massacre. The War Department established a military commission to investigate the events at Sand Creek. Congress condemned Chivington's actions and called for the removal of Evans as governor of the Colorado Territory.

In the wake of the 2020 national and worldwide movement for racial justice, students, faculty, staff, alumni, and many others again asked for the retirement of the Pioneer moniker as directly connected to the university as well as Colorado's own violent founding. While organizations and institutions all over the country were reassessing, examining, and in many cases eliminating either Native American mascots or those that could be associated with the forced removal and in some cases genocide of Indigenous Peoples, many thought the time was ripe for eliminating the Pioneer from the DU brand.

The university, particularly its leadership, believed otherwise. In a statement by Chancellor Jeremy Haefner, released on October 21, 2020, the university acknowledged the controversy surrounding the Pioneer moniker but said DU would continue to use it: “What we unconditionally denounce is the tragic violence and injustice against Native people denoted by the term pioneer ... What we avow is the pioneering spirit--the courage and resilience to think and act boldly; to break through barriers as explorers, innovators, and frontrunners into the future.” In response, the student activists asking for the change simply said that Chancellor Haefner's decision “represents the University of Denver's violent commitment to colonialism and [W]hite supremacy.”

While institutions throughout the nation rightly questioned whether their brands could be neutral and inclusive for all, DU explicitly believed its Pioneer brand, connected directly as it was to the anti-Indigenous beliefs and violent acts of its founders in the nineteenth century, could somehow, someway be stripped of its violent, racist past. Although the university embraced diversity, equity, and inclusion as a core value, its embrace of the Pioneer moniker was emblematic as a form of “racial capitalism” as way to “extract value” for the university as a modern, forward-thinking institution while refusing to consider the ongoing violence and harm of its intellectual property. As the historian Cynthia Culver Prescott writes about pioneer imagery used throughout the American West, “we embrace the myths, but choose to erase the inconvenient truths, of our settler colonial heritage.” In short, DU's embrace of both Franklin Burns and Boone perfectly embodies the color(blind) conundrum at the center of Colorado's property regime.

This Article uses these two examples at DU as entry points to interrogate more deeply the ongoing denial and erasure of the legacy of settler-colonialism and White supremacy in the color lines created by Colorado property law. While Colorado has long been venerated as forward and future thinking, especially when it comes to matters of race relations, property has structured deeply embedded institutional and systematic racial inequities. In short, property has created a conundrum about how we collectively think of, talk about, and deal with race, its origins, and legacies arising out of settler-colonialism and White supremacy.

Colorado's color(blind) property conundrum is explored in the next two Parts of this Article. In Part II, I situate the emergence of Colorado's property regime in the context of the racialized wars of aggression that would literally shape the boundaries of the state. First, in the Mexican-American War, and soon thereafter in the forced and often violent removal of the Tsitsistas (Cheyenne), Inun-ina (Arapaho), Nuche (Ute), and other Indigenous Peoples from the land, Colorado's property was and continues to be defined by the legal logic of colorblind notions of conquest, progress, policing, and exclusivity. From the reordering of notions of property and related concepts of personhood in land and people to the naming of mountains, landmarks, and neighborhoods throughout the state, settler-colonialism and White supremacy lurk behind and inform so many pieces of property throughout the state.

Part III turns to a familiar form of White supremacy found in real property all throughout the United States: racially restrictive covenants. Represented in the standard practices of Frank Burns and his real estate company, Colorado courts repeatedly and consistently upheld the constitutionality of racially restrictive covenants as one of the main mechanisms in which to maintain the color line. Segregation and the consequence of the color line were also reinforced by public actors in the state. From the open segregation of public beaches, swimming pools, and other pieces of public property by local authorities to the use of martial law to terrorize and keep Mexicans and Mexican Americans out of the state, private and public actors conspired to make real and permanent Colorado's color divide in its homes, schools, and other public places.

Part IV concludes by briefly exploring the ongoing maintenance of colorblindness in Colorado's property regime. From gentrification to property foreclosures by homeowner associations, settler-colonialism and White supremacy continues to reinforce patterns and practices of racial inequity. Nevertheless, activists, policymakers, and property owners are identifying new ways that those living in Colorado can move beyond the color(blind) conundrum found in properties all throughout the state. In so doing, they are taking some of the first tentative steps required to unwind the dilemmas posed by a property regime forged in settler-colonialism and maintained through White supremacy--despite all assertions that claim otherwise.

[. . .]

In terms of its public property and larger understanding of the state's branded heroes, in August of 2021, Governor Polis officially rescinded the 1864 John Evans proclamations creating the conditions for the Sand Creek Massacre to occur. According to Governor Polis, the Evans Proclamations are “a symbol of a gross abuse of executive power” and part of a “shameful” chapter in the state's history. In March 2022, the Clear Creek County Board of Commissioners, sitting where Mount Evans officially rises, recommended that the iconic and well-known fourteener be renamed “Mount Blue Sky.” A name jointly created and recommended by the Arapaho and Cheyenne descendants of Sand Creek, it became supported by conversation organizations, government officials, and various tribal leaders. As of this writing, that recommendation is awaiting approval and recommendation by the GNAB.

Ultimately, Colorado's color(blind) conundrums continue to wage just as fiercely today as they did when the U.S. Civil War Congress decided to carve the territory out of Kansas. A state founded in competing and often contradictory tensions of racial and civic nationalism, Colorado has and continues to struggle with the ways that its myths and stories around pioneers, freedom, individualism, civilization, innovation, community, and racial equity have obscured a true reckoning and avoided an honest accounting of racism and massive and enduring inequalities and inequities. Property law-- in both its corporeal and incorporeal forms--and related use, jurisprudence, legislation, and proclamation has played a profoundly determinative role in perpetuating the myth while subtly reinforcing the logic of settler-colonialism and White supremacy and the subsequent indignities of displacement and dispossession. Whether current efforts to make the state--from its neighborhoods to its most venerated public institutions like DU and the University of Colorado--or its most cherished landmarks more color conscious in its property and other legal regimes represents an end to the myths and the larger conundrums these myths create, is the challenge we living in Colorful Colorado must confront.

JD, PhD, Associate Professor of Law, University of Denver Sturm College of Law. Affiliate Faculty, University of Denver, Department of History. Faculty Director, University of Denver's Interdisciplinary Research Institute for the Study of (in)Equality.