Abstract

Excerpted From: Mikayla Mangle, When the Legal System Was Designed to Work Against You, How Can it Ever Work for You? Rethinking Heirs Property Reform, 17 Charleston Law Review 541 (Spring, 2023) (198 Footnotes) (Full Document Requested)

The year is 1945, you have on your new purple bathing suit with polka dots; the one you have been begging your mom to buy you for the past six months. Your hair is braided with the fancy clips your cousins helped you put in your hair the night before. You got terrible sleep last night because you slept with your head propped up against your hand so not to mess up your new hairdo. The lack of sleep and the crick in your neck from propping your head up all night does not even matter because today you are going to the beach with your family. You will run through the sand, smell the salty air, feel the warm air against your skin, and, if you are brave, you may even venture into the ocean. You are walking down the long road, which feels like forever, to get to the beach. Everyone is staying as quiet as a mouse. You can practically see the beach just a few more feet away when someone grabs your arm. Ouch. They grab you quite forcefully. You look up and see a tall man with a white face peering down at you. The man informs you this is Carolina Beach, and the negro beach is “over there.” He says you are not allowed to walk these roads; these roads are for whites, and Seabreeze is for the blacks. Your cousin pulls you away saying, “we were heading to the black beach, sir.”

You are finally at the beach, sitting in the sand, and looking out at the large, open water that could swallow you whole. You are finally at the beach where there are people who look like you everywhere: brown skin, black skin, hair wraps, dancing, and laughter. You are finally at your beach but cannot stop thinking that nothing is really yours in this world. Those people half of a mile away will let you have this for a while but soon, this too will be taken away. You are happy, but you are scared.

Half of a mile away sits another little girl in the sand in a polka dot bathing suit. She has her hair braided with ribbons, but the color of her skin is white, not brown. She is watching her family--her mom sunbathing, her dad snacking on a hot dog, and her brother building a sandcastle. She has come to this beach every summer since she can remember. She has never spoken to a police officer at the beach. She has always felt welcomed. This is her beach. She is happy, and today, she has no fear.

The above story is a fictional anecdote imagining segregated beaches in the 1940s. This story was based off the black owned beach, Seabreeze, and its white owned counterpart, Carolina Beach, both located in coastal North Carolina just half of a mile from each other. I begin by telling the story of Seabreeze and Carolina Beach to showcase the historical difference of landownership among white and black people. In 1855, Alexander Freeman, a free person of color, purchased ninety-nine acres of land near Myrtle Grove Sound and, by his death, had acquired around 180 acres of land. Alexander Freeman left all his land to his son, Robert Bruce Freeman Sr., who later purchased around 2,500 acres in the area of Myrtle Grove Sound. This land would later become known as “Seabreeze,” a safe haven for black people during post reconstruction time and the JimCrow era where they could relax and enjoy the beach--a space black people were typically not welcomed to during this time. Seabreeze was also a space for early black entrepreneurship. This black-owned beach supported numerous black businesswomen and men, from the Simpson family opening up the Simpson's Hotel in the 1920s to Frank and Lulu Hill constructing the Monte Carlo by the Sea in 1951. Seabreeze not only served as a place where black people could relax and step away from the brutality of racial violence and the hard labor many black people still found themselves having to do just to make a living, but it also served as a place where black people could build generational wealth through land and business ownership--a place where black people could build something of value to be passed down to their descendants. However, Seabreeze did not last long enough for these black families to be able to build the generational wealth they desired to.

Half of a mile away from Seabreeze, Carolina Beach served the same purpose for white families: a haven to relax from the stresses of life and to have a chance at land and business ownership. Carolina Beach, however, had much better luck as a successful beach community than Seabreeze did. In the early 1900s, while the Freeman family sold some of their land in an unsuccessful attempt to get a railway built for easier access to Seabreeze, locals living near Carolina Beach were successfully able to advocate for the construction of a railway as early as 1886. Half a century later, after the 1954 Hurricane Hazel devastated coastal North Carolina, the Freeman descendants were unable to secure aid for disaster relief from the government due to not having clear title to their family land. Hurricane Hazel proved to be just one misstep in the development of Carolina Beach, and developers of Carolina Beach were able to rebuild and continue to create economic wealth for the white-owned beach.

The contradiction between Seabreeze and Carolina Beach is just one out of the many examples of a white community successfully building generational wealth, while a black community comes up short. Throughout history, beginning in the Antebellum Era, black people have been unable to keep land, farms, businesses, and homes long enough to build generational wealth. This is not for a lack of trying or lack of persistence, but in many cases, it is from laws and an entire legal system that was created to keep black people as second-class citizens. The American legal system began in a slave state where black people were deemed property and white people were the owners. While America's laws on slavery and segregation have changed for the better, the remnants of the legal system that was built during America's shameful past of bondage and institutionalized racism still linger for many black landowners today. Much of America's laws regarding land ownership and property began in a time when black people had little to no rights. Today, as lawyers and legal scholars, we are still trying to find a way to use these laws that were created in a time when the legal system was meant to exclude, rather than benefit, black people to help black families clear title to their land and fix the expansive problem that has become known as, “heirs property.” Using traditional property laws and laws that stem from traditional property laws cannot help current heirs property owners when those laws were not made for them. It is time for lawyers and legal scholars to begin thinking about solutions to heirs property in a new light--one that does not involve using traditional property laws but instead involves finding a solution that acknowledges the role systematic racism played in creating heirs property and finding an equitable way to clear title for heirs property owners.

Part I begins by introducing what heirs property is and how it was created by discriminatory laws against blackAmericans throughout America's history. Then, Part II will discuss current heirs property reform and how it falls short of alleviating many issues heirs property owners face. Part III then provides solutions that are currently best for solving heirs property issues. Finally, this article concludes by presenting the critical need for state and the federal government to adopt more comprehensive and equitable heirs property reform.

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Heirs property has contributed from 4.7 to 16 million acres of land loss over the past hundred years and continues to be an issue today. One-third of land owned by black people in the south is owned in heirs property. Even more troubling, heirs property continues to be the leading cause of involuntary land loss among blackAmericans. Despite these alarming statistics, heirs property is still an issue that is kept behind closed doors. Most law students will go through law school without hearing about heirs property. Furthermore, lawyers who do not practice property or estate planning law can go through their entire careers without knowing about heirs property. This shows that America, through its leaders and legal practitioners, is failing to address the past housing and land discrimination blackAmericans have always faced. The time has come to make resolving heirs property issues a priority in federal and state legislatures throughout the country.

While there has been some positive heirs property reform that has assisted some heirs property owners and created awareness about the dangers in owning heirs property, it has not been enough. Heirs property issues will never truly be resolved until America acknowledges its past property discrimination against blackAmericans and takes action to provide heirs property owners with the tools to fix it. It is time to rethink heirs property reform and begin stepping away from using the system that created heirs property in the first place and instead create law and policy that provides restitution to heirs property owners for over a century of discrimination.

The year is 2023 and there are no more segregated beaches. There are no more “blacks only” sections on certain beaches. However, the history is still there--the history of what could have been. What could have happened if that one black-owned beach survived past integration, or if the black landowners on the beach were able to keep their land despite white mobs, eminent domain, or forced partition sales? Unfortunately, the world will never know what could have happened had the majority of blackAmericans had the opportunity to pass down generational wealth in the same way as their white counterparts. What would the world look like today? Would we have already seen more than one black president? Would we have more black doctors, CEOs, and lawyers? Unfortunately, these questions cannot be answered because America robbed a community of their chance at a successful future. America should now right its wrong and create comprehensive policy addressing heirs property. It is 2023 and America can no longer talk about reparations without talking about heirs property.

Equal Justice Works Fellow Sponsored by Center for Heirs' Property Preservation. The Author holds a J.D. from Tulane Law School.