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Excerpted From: Norrinda Hayat, A Critique of the Black Commons as Reparations, 45 New York University Review of Law and Social Change 370 (2021) (266 Footnotes) (Full Document)

NorrindaHayatAfter Emancipation, against all odds, formerly enslaved Black persons within the United States succeeded in acquiring a remarkable amount of land. By 1910, a mere 45 years post-Emancipation, Black people claimed ownership of over 16 million acres of land. Black people would continue to acquire land only to be ultimately dispossessed of it, often forcibly, and sometimes with the aid of the government. Some of these takings are now well-known and well- documented. In the Greenwood District of Tulsa, Oklahoma, for example, a self-sufficient Black community that encompassed 35 square blocks, including a financially thriving business district known as “Black Wall Street,” was burned to the ground in a racial massacre that lasted for two days in the summer of 1921. Estimates suggest up to 300 Black people died in the Tulsa Massacre and an estimated 8,000 Black people were left homeless. The property loss, estimated at nearly $2 million (which would have amounted to $25 million in 2020), was never recovered. Between 1919 and 2007, Black farmers lost 80 percent of their land largely due to discrimination at the hands of agents and employees of the United States Department of Agriculture. In the Mississippi Delta, as an example, “[a] war waged by deed of title has dispossessed 98% of [B]lack agricultural landowners in America.” The affected Black farmers there have lost possession of approximately 12 million acres over the last one hundred years. Still more acts of dispossession have been obscured despite the magnitude of their scale. In 1924 Manhattan Beach, California, city officials invoked eminent domain and condemned the land of Willa and Charles Bruce, which was the site of a Black resort, allegedly to build a city park.

Most of these land losses have occurred “within living memory.” Still, the systemic dispossession of land owned by Black Americans has largely been ignored, legitimized, normalized, and left uncompensated by the American legal system. Where penalties have been meted out under the law, they have been weak and failed to address the harm that they are meant to redress. For example, the Pigford Litigation, a discrimination lawsuit brought by dispossessed Black farmers against the United States, has been harshly criticized, including by the farmers themselves, for failing to remediate the loss of property. No farmer's land was ordered to be returned, and although money damages were awarded to class of claimants, it was in amounts far less than what would be needed to acquire new land.

Black reparations is now being discussed amongst a broader segment of the American public than it has been in decades, yet, in many of those discussions, critics and advocates of reparations alike frequently fail to take into account the well-documented history of the uncompensated dispossession of Black-held land. Instead, these commentators choose to focus on disqualification or unqualification narratives suggesting Black Americans may be regulated or educated into landholding--that is, that the harm needing repair is in being unable to attain property in the first instance, either because the market is not free and fair, or because Black Americans do not know they should be holding land in the first place. Actual loss of land and the attendant loss of intergenerational wealth should be accounted for in any plan for Black reparations.

Reparations proposals that call for land transfer at all tend to argue for repair through collective land holding or, as one set of scholars puts it, the creation of the “Black Commons.” Commons are lands or resources belonging to an entire community. There is a long history of Black landowning in commons in both the rural and urban contexts. Collective land ownership, though morally appealing for its anti-neoliberal, anti-capitalistic attributes, fails as a tool for repair for those very same reasons--it will not result in wealth attainment. Reparations proposals that favor establishment of the Black Commons, however well-intentioned, only obscure the actual uninterrupted history of black landholding, perpetuate anti-Black landholding narratives, and contribute to a legal legacy that disenfranchises Black Americans from the right to hold property for the sole purpose of accruing wealth.

This Article makes the claim that contemporary discussions of reparations should be expanded beyond the failure of Black people to attain hypothetical wealth and should contemplate the actual systemic dispossession of valuable land once held by individual Black people for which repair is urgently overdue. As an initial descriptive matter, in Part II this Article seeks to establish the pervasiveness of Black land dispossession, beginning immediately prior to Emancipation with a through-line to the foreclosure crisis in the early aughts. In Part III, the paper examines modern experiments in land return to the collective, in the form of community land trusts (CLT), a type of commons, which have been proposed as a pathway towards reparations. Part III attempts to theorize the Black Commons by mapping race onto the urban commons. Part IV draws from the literature on reparationist goals, especially that of “community empowerment,” offered by Darity, Mullen, and Robertson, to evaluate the commons as an effective tool for repair. It argues that Black people who have been dispossessed of their land through violence and systemic racism--economic violence--cannot collectively be made whole merely through the ceremonial re-establishment of the Black Commons because doing so will render Blacks no more than a “land holding peasantry.” This paper concludes by arguing that proposals that advocate for reparations while failing to contemplate the return of equity-generating land to individuals further obfuscate the legacy of economic violence against Black landowners. In lieu of the Black Commons, the paper urges recognition of Black people as legitimate wealth-generating landholders and calls for reverse-engineering policy prescriptions that center return of land to Black individuals from that starting place in the manner proposed by the 2020 Justice for Black Farmers Act, which would have provided land grants to existing and aspiring Black farmers.

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“Harlem is life dying inside a closet, an excrescence beginning where a green park ends, a self-perpetuating disintegration of walls, ceilings, doorways, lives. It is also, of course, a political embarrassment for which no political solution is adequate. A housing project planted in the middle of a slum is not an answer.”

In 1965, the poet, activist, and architect June Jordan conceived “Skyrise for Harlem,” a redesign of Harlem's built environment that consisted of 15 concentric towers of apartments with athletic fields, tree-lined pathways, and practice studios for musicians. Jordan considered Skyrise “a form of federal reparations to the ravaged people of Harlem.” Jordan chose the name “Skyrise” to reflect not only the physical structures but also her belief that the project would “transform[] ... [the] ghetto” and elevate its people and their environment after a “half century of despair.” Then, as now, affordable housing projects (even under the moniker “community land trusts”) are just affordable housing--not reparations. Reparations ought to transform the entire lived environment.

A vast amount of equity-generating land that that Black people once held, then were dispossessed of through various legal and extra-legal means, must be accounted for in a reparations program. In many if not all cases, the dispossessed land has proven extremely profitable for its white successor owners. Remedies that forgive that debt outright with apologies or accept partial payment in the form of land with no equity, such as community land trusts, do not remedy the actual harm caused and manifested in the form of the racial wealth gap. Nonetheless, the idea of compensating Black land dispossession through non-equity generating “assets” (if they can be called assets) is gaining traction in current reparations discussions, especially within liberal circles. When the historical and modern Black Commons is interrogated more closely, it becomes clear that it does not meet a central goal of reparations: community empowerment. Indeed, while “culturally rich,” the tradition of the Black Commons has oftentimes been economically unsupportable, in some cases almost to the point of foreclosure.

This Article has sought to intervene in the discussion surrounding Black-Commons-as-reparations by identifying that these proposals neglect to account for actual Black land dispossession suffered by identifiable individuals in recent history and the failure of the commons as remedy to achieve economic empowerment in the future. This Article has also sought to critique the Black Commons' usefulness as a tool of community empowerment. This critique should not be taken to imply that post-reparations, Black individuals should abandon cooperative economics, such as the Freedom Georgia Initiative, a Black-woman led initiative that seeks to develop cooperatively a “safe haven for Black families” to live and thrive together. Nor do I mean to imply that Black folx should not ideate and build together for the Afro-future as Joan Jordan did in the case of “Skyrise for Harlem.” The Article speaks only to how the debt owed is paid and not how the repayment is later spent. On the matter of repayment, a program of reparations must successfully bring Black people into full economic citizenship on par with white people through equity-generating assets that are identical in character and terms to the assets that the latter hold and that are also similar to those assets the former were dispossessed of, through proposals akin to the Black Farmers Act, and not merely through the creation of affordable housing.

Norrinda Brown Hayat is the Associate Professor of Law, Rutgers Law School - Newark. J.D., University of Virginia School of Law, B A., Dartmouth College.

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