Abstract

Eric J. Miller, Violent White Exclusionary Destruction of Black Property Is a Public Nuisance: The Tulsa Race Massacre and Beyond, 94 University of Cincinnati Law Review 1007 (2026) (456 footnotes). (Full Document)

Lessie Evelyn Benningfield Randle, affectionately known as Mother Randle, is the last known living survivor of the 1921 Tulsa Race Massacre. Born in 1914, and aged six at the time of the Massacre, she is now 111 years old. Despite the Massacre having occurred over a century ago, Mother Randle still experiences flashbacks to the Massacre, seeing soldiers dressed in uniform stacking dead bodies in the back of a truck while running past them to flee the burning neighborhood. Mother Randle has described “[w]hite men with guns [coming into] and destroy[ing] [her] community” and burning down her house. No one--neither the City of Tulsa nor the white men who destroyed her property--has ever compensated Mother Randle for her property loss. Consequently, Mother Randle has “lived much of [her] life poor” in a dilapidated “ghetto.”

Another one of the Black people being shot at by the murderous white invaders early on the morning of Wednesday, June 1, 1921, was Otis Clark, then an 18-year-old youth. With the Massacre well under way, Mr. Clark and his friend, a driver who worked at Jackson’s Funeral Home, were heading along East Archer Avenue, which lay at the border between Black Greenwood and the white Tulsa business district downtown. They planned to escape the Massacre by retrieving the Funeral Home’s new ambulance. As they approached the Funeral Home, white snipers, occupying the upper floors of the Ray Rhee Flour Mill across the street, “were just gunning down black people, just picking them off like they were swatting flies.” Mr. Clark was sprayed with blood when a sniper’s bullet hit his friend’s hand, knocking the keys to the ambulance out of his grasp. Fleeing down an alley, Mr. Clark first ran to his cousin Bertha Black’s café, only to find it already razed to the ground, and so he continued running to see if Ms. Black was at her parent’s house. There, Ms. Black, along with her husband, parents, and Mr. Clark, piled into their car and fled the city.

When Otis Clark returned to Greenwood, he found that members of the white crowd had burned his family home, which sat at 805 East Archer Street, to the ground. Mr. Clark could not find his stepfather who had disappeared during the Massacre, presumably killed though his body was never found. Assuming his forty-five-year-old stepfather was dead, Mr. Clark left again, this time for good. He jumped a train to California to find his biological father, who lived in Los Angeles. It was there that Mr. Clark would spend much of the rest of his life. The Tulsa Race Massacre is the emblematic act of anti-Black racial violence in United States during the twentieth century. The City of Tulsa’s destruction of Greenwood, the racially segregated Black neighborhood in Tulsa, Oklahoma, began on the evening and well into the night of May 31, 1921, and then, after a short break, from around 5: am all through the morning of June 1, 1921.21 The Massacre was immense in scope, destroying thirty-five to forty city blocks, including: 1,256 houses to burning and another 215 to looting. [The Greenwood neighborhood] lost the entirety of the business district, which had been anchored by top-end establishments like the Stradford Hotel and the Dreamland [Movie] Theatre but buttressed by the financial and spiritual aspirations of dozens of ambitious black entrepreneurs. According to one estimate, more than 150 businesses were burned to ash in the attack.

Thousands of white people, some 500 of whom were deputized by the police, others members of the local national guard, and yet others anonymous members of a massive mob, destroyed large amounts of property and murdered as many as 300 Black people. Brigadier General Charles Barrett, leader of the state national guard, reported that “when I arrived at the height of the rioting [t]wenty-five thousand whites, armed to the teeth were ranging the city in utter and ruthless defiance of every concept of law and righteousness. Motorcars bristling with guns swept through [the] city, their occupants firing at will.”

The Massacre was extraordinary “[a]ccording to the sheer scale of concentrated destruction and violence.” However, the Massacre was decidedly ordinary in targeting propertied middle-class Black people like Mother Randle, Otis Clark, and Bertha Black. These were, after all, families who rented or owned their own homes, or who owned businesses. Greenwood, the Black district of Tulsa, was home to a disproportionately high number of Black white-collar workers, earning Greenwood the nickname The Black Wall Street. Nonetheless, the town was disproportionately wealthy compared to other Black districts across the United States. In other words, when white people attacked the residents of Greenwood, they did not attack poor people living in a slum but rather directed extreme violence against an economically vibrant Black community that included a sizeable portion of middle-class Black property owners.

Violent anti-Black property dispossession was not a feature exclusive to Tulsa, Oklahoma. When Otis Clark hopped off the train in Los Angeles to find his father, the community there had already violently excluded the Black community from the “Southland” (the large metropolitan area around the City of Los Angeles). By 1921, white people had already forced Black people out of communities across large parts of Los Angeles, through attacks sponsored by government officials and private individuals, including Culver City, Glendale, Hawthorne, and Inglewood. Throughout the 1920s, white people were attacking Black beachgoers and property owners in the coastal communities of Manhattan Beach and Santa Monica. For a Black person, owning a home or business in certain parts of Los Angeles could be as dangerous as owning one in Tulsa. Thus, though the scale of the Tulsa Race Massacre was enormous, the characteristics of the Massacre--white people targeting middle-class Black businesspeople and property owners for extreme acts of physical violence and property destruction--were repeated across the United States in the years before and after the Massacre.

The property interests implicated in the Massacre, and in Black land ownership more generally, raise some difficult questions. One way of thinking about the ordinariness of extraordinarily violent white destruction of Black property or extraordinarily violent exclusion of Black people from ownership of property is empirical: this is something that happens to Black people more or less frequently over time and around the country. However, another way of thinking about this sort of property-directed violence is normative: it is legally permissible as a feature of Black property ownership. There is some rule, explicit or implicit, that precludes Black people from having the same property rights as white people.

One way to explain this social and legal practice is that there is a customary norm of white people destroying Black people’s property with impunity. Customary norms explain how the “is” of empirical fact can become the “ought” of normative obligation. These sorts of implicit norms are constituted by norm appliers’ attitudes towards empirical practice: the actions of people that the relevant authorities treat as imposing an obligation. Customs are identified by “rules of recognition” (which are themselves customary norms): duty-imposing (perhaps better, duty-conferring) practices that the relevant authorities treat as a source of guidance.

A defining feature of property norms in the United States is that the social and legal practices underpinning them shape Black people’s relationships to property in ways that differ significantly from those of white people. At the core of these relationships is a customary norm of legal nullification of white anti-Black violence, a practice that “deputizes”--or perhaps better, empowers--ordinary white people to engage in what I call violent white exclusionary anti-Black dispossession.

Violent white exclusionary anti-Black dispossession is the phenomenon of public and private acts of violence used--among other things--not only to dispossess Black people of their property, but more fundamentally, to render Black property inherently dispossessable. For white people, dispossessability is a normative power, and for Black people, dispossessability is a normative liability. Among the core features of property are rights to exclusive possession and use. These rights are protected and enforced through other rights and normative expectations. One of these expectations is that police and prosecutors will step in to prevent outsiders dispossessing people of their property and punish those who succeed in doing so. Another of these expectations is that dispossessors will return the property or compensate those they dispossess, either voluntarily out of their own pocket or through some insurance scheme, or through some system of legal compulsion.

Legal nullification of Black people’s property relationships destroys Black people’s ability to enjoy property rights in the United States. The normative structure of Black property ownership in the United States renders Black property vulnerable to public and private dispossession and destruction in ways that white property is not. White people--including municipal and state officials--have justified this uncompensated dispossession or destruction based on the claim that Black ownership of property is a form of blight. We can see some examples of these blight-based reasons for depriving Black people of their property in places like Tulsa, Oklahoma, Cicero, Illinois, or Palmdale, California. One common claim was that Black people’s residences were run-down and diseased. Another common claim was that Black people themselves caused the sort of annoyance that interfered with white people’s enjoyment of their property. These blight-based justifications for taking Black people’s property depend upon Black people being characterized by their white neighbors as culturally distinct sources of disorder and annoyance and Black property as unkempt or overcrowded, a sort of pollutant burdening the property of white people.

However, this persistent, unilateral, and universal practice of violent white exclusionary anti-Black dispossession is itself a blight: a form of public nuisance. A public nuisance occurs when some person’s antisocial behavior creates the sort of blight that inconveniences their neighborhood community. Sometimes, that antisocial behavior consists in the way one person’s misuse of their land impacts another person’s property. Sometimes the wrong consists in certain types of annoying or disorderly behavior in public spaces. The common feature among these types of nuisance is behavior that injures neighborhood community standards of orderly conduct in accessing public goods. On this view, public nuisance is a form of incivility or blight that harms a particular type of social group (a community living in a particular neighborhood) by undermining the values, norms, and relationships that constitute and express that community’s character.

A prominent early example of public nuisance was individuals storing large quantities of gunpowder in a building. Not only was the danger of explosion a threat to private property, “it was universally recognized that entire cities were at risk of incineration from fire, making a large cache of gunpowder, and the threat of explosion, a threat to public and private rights alike.”

White exclusionary anti-Black violence is also a public nuisance, not only in the narrow sense of the violence inflicted upon people who are threatened, harassed, assaulted, and murdered and whose property is stolen, burned, and destroyed, but also through its impact on “what it means to be a property owner in the midst of a community.” The point of white destruction of Black property was to interfere with members of the Black Greenwood neighborhood community’s rights to health, safety, and repose, as well as sending a message to all Black people who aspire to be part of the larger Tulsa community that they were not welcome there. Accordingly, the individual Black landowner whose property was damaged or destroyed, or who suffered physical injury or death, suffered not only a private harm but also a public one. While the state has standing to investigate and prosecute the public harm (through the crimes of arson, or mayhem, or aggravated assault or homicide), often the state participated in the wrongdoing, whether by passively failing to prevent, investigate, or prosecute white anti-Black violence or by actively assisting in the violence and investigating and prosecuting the victims of white anti-Black violence.

That municipalities and other government entities could participate in property-based wrongdoing explains one of the striking features of the public nuisance doctrine: private agents may bring a public nuisance action. In a number of public nuisance cases, it is governmental activity by some municipality that caused property-related damage particularly burdening or impacting some private property while also affecting the community more generally. This sort of extraordinary governmental act turns out to be an ordinary feature of Black people’s attempts to own property across the United States well into the last quarter of the twentieth century.

Another feature of public nuisance is that they have no statute of limitations. The reason is that public nuisances injure a public right. In general, nuisance theorists have taken this temporal aspect of public nuisance for granted. However, the relation of atemporality to public rights is of the essence of nuisance’s public aspect.

As an overlooked aspect of public nuisance doctrine, then, we might regard these violently-maintained white communities as a public nuisance designed to deter Black people from the ability to possess property unburdened by the threat of state sanctioned public and private violence threatening their health, safety, and repose, as well as to determine the resources available to the people who are excluded from some neighborhoods and corralled into others. In what follows, the major claim is that the concept of public nuisance applies to violent white destruction of Black property by private individuals and public officials. Section II provides a brief historical overview of the Tulsa Race Massacre as well as white anti-Black property dispossession around the United States more generally. Section III suggests that, from its inception, property rights and expectations in the United States have been organized around their violent acquisition and protection, and that this history of violence is particularly profound in the context of white violence against people of color, including Black people. The section begins by discussing some general theories of exploring the concepts of property, property rights, and normative expectations associated with the ownership or possession of property. It continues by arguing that the very concept of property in the United States is inherently connected to violence. It concludes by suggesting that this connection between property and violence is racialized, so that whiteness is essential to the full enjoyment of property rights in the United States. Section IV, argues that public nuisance, which is often conceptualized as a tort against property, is best understood as an injury to some neighborhood community’s access to public spaces and public rights. Hence, the emphasis of public nuisance on the health, safety, and comfort of members of the community. Finally, in Section V, demonstrates the ways in which the Oklahoma Supreme Court reconceptualized the pre-existing law of public nuisance to exclude the Black neighborhood of Greenwood, Oklahoma--as represented by the last living survivors of the Tulsa Race Massacre--from full participation in the contemporary Oklahoma polity, reenacting white anti-Black exclusion in the Oklahoma Supreme Court’s courtroom while reinscribing anti-Blackness in Oklahoma law.

 [. . .]

The Tulsa race Massacre was an act of extreme violent white exclusionary anti-Black dispossession. It was extraordinary in its scope, but this form of anti-Black violence is a core feature of Black property rights and expectations in the United States, which are structured by a common law that historically, and quietly, nullify violent white anti-Black dispossession. If the white community managed to silence the significance of the Tulsa Race Massacre for seventy-five years, the significance of the mayhem and arson in Cicero, Illinois was not lost on the Black community. In 1968, Martin Luther King wrote: The potential presence of a Negro in a previously all-white neighborhood often arouses hostility and causes panic selling. The question of the character of the potential Negro neighbor is not a matter of inquiry. If it were, a Cicero, Illinois, would welcome a Ralph Bunche into the community rather than an Al Capone. The fact that professional white hoodlums and racketeers are located in the best neighborhoods of Cicero is fit proof that the opposition to open housing is not based on behavior or moral standards. The reason Ralph Bunche could not live in Cicero is that he is a Negro, pure and simple. His individual culture, brilliance and character are not considered. To the racist, he, like every Negro, lacks individuality. He is part of a defective group.

This Article flips on its head the narrative of Black owned property as blighting white neighborhoods. Instead, the historical record is replete with white people violently preventing Black people from owning homes. These attacks devastate the ability of Black people to purchase or maintain property and destroy the social and political interests that classical liberals identify as commonly associated with property rights--creating a zone of private liberty in which to plan and build a life, as well as being able to take one’s place within a neighborhood or a community in ways that promote the safety and repose of individual members of that community. Instead, in these white-exclusionary neighborhoods, Black property is polluted by white anti-Black violence.

On this account, white-exclusionary neighborhoods, along with anti-Black (and anti-Brown anti-Asian, and anti-indigenous) violence that keeps them white-exclusionary, constitute a public nuisance, blighting Black people’s (and other people of color’s) uses of public and private space. Worse, white exclusionary anti-Black dispossession only occurs with the consent of state agents, primarily police and prosecutors. However, courts can participate in this customary law of anti-Black nullification too. When the Oklahoma Supreme Court rewrote its prior precedents and statutes, and misrepresented the claims in the Randle-plaintiffs complaint to reframe them as seeking racial justice rather than the sort of interference with public rights to property typical of ordinary public nuisance cases, it engaged in just such an act of nullification, effectively ratifying the violence of a century ago.

The Oklahoma Supreme Court rejected Mother Randle’s claim on June 12, 2024.455 The real problem with the Massacre survivors’ case was not that the last survivor of the Tulsa Race Massacre could state no claim and no remedy. The problem was that the Court thought the case was a “race” case and did not want to allow a case of racial violence to go forward for “fear of too much justice.” The Oklahoma courts, closed to the Massacre survivors in 1921, slammed their doors shut again in 2024. They did so in part because they could not imagine the Massacre survivors, and by extension, the Black citizens of Tulsa and of Oklahoma, as members of a “neighborhood” or “community” that was not primarily defined by race, and thus whose issues did not pose the sort of “political question” that is for the legislature to decide, rather than the courts.

A conspiracy to silence the Black community is neither passive nor hidden. Instead, eight justices of the Oklahoma Supreme Court’s engaged in a literal writing-out of Mother Randle from the white-normed communities of Tulsa and Oklahoma. Her offense was the temerity of regarding her right to possess and use her property on the same level as white citizens of Tulsa, and her interests in access to public spaces and resources as those shared by the white citizens of Tulsa.

Professor and Leo J. O’Brien Fellow, LMU Loyola Law School, Los Angeles.