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How BIPOC Leaders Are Challenging Land Theft

“You can’t separate justice from the land.”—Jennie Stephens, Center for Heirs’ Property Preservation

Authors: Common Future

“You can’t separate justice from the land.” Jennie Stephens, Executive Director of the Center for Heirs’ Property Preservation 

The United States is built on stolen land. From the nation-defining, near-total theft of land from Indigenous people to the systematic denial of loans and farmland to Black Americans, one of white supremacy’s main tools has been preventing marginalized people from accruing wealth through property ownership.

None of the laws that sanctioned the majority of this theft are still in use, and it is now rare for the government to seize land from citizens. But the legacy of land theft persists through other means. The less financial resources a family or community has, the harder it is for them to hold onto land. And because of economic racism, that means communities of color are still most at risk for losing their assets. Fortunately, leaders in the Common Future network are working to dismantle these systems — restoring power and property to their communities.

“Wherever there are large communities of underserved people, like Appalachia or the Black community or Native American lands, you can find the dual problems of fractionated ownership and the inability to collateralize land wealth throughout the United States,” says Jennie Stephens, Executive Director of the Center for Heirs’ Property Preservation, which specializes in educating families on preventing land loss and maintaining their assets across generations.

Heirs’ property, the focus of Jennie’s work, ranks high in contemporary methods for removing land from the Black community. This a legally tenuous arrangement occurs when a property owner dies without a will, which leaves each of their descendents holding a piece of that land. Due to suspicion of the American legal system, the majority of Black people die without a will. According to Thomas Mitchell, a MacArthur fellow and professor at Texas A&M University School of Law, roughly 75% of college-educated white people in the U.S. have a will, compared with only 33% of college-educated Black people.

When an asset doesn’t clear probate court after ten years, it becomes heirs’ property. The piecemeal ownership arrangement opens an opportunity for speculators, says Stephens. “By purchasing a fraction of land from an heir and then using their newfound rights as owners to force a sale of the entire property, speculators can buy the rest of the property, usually well below market price, and the heirs are left high and dry.”

Heirs who sell their part to speculators rarely expect, let alone want, the sale to break apart their family’s assets, and the sale usually happens over the objections of other heirs. As Jennie notes, “Often, these people have been taken advantage of. Low-income folks just don’t sit around the kitchen table and talk about estate planning.”

There is no way to estimate how much property, or wealth, has been lost to heirs’ property. But in 2018 the USDA described the practice as “the leading cause of Black involuntary land loss.” Heirs’ property sales also happen in Native communities, where it is usually referred to as a partition sale, although the issue hasn’t had as big an impact as it has on Black Americans.

For Native communities, the central barrier to wealth-building isn’t losing land, but being denied land in the first place. The 22 percent of Native people who live on reservations legally can’t own their land, because reservation land is held in trust by the U.S. government. Without that asset to use as collateral, banks consider these borrowers high-risk and provide unfavorable loan terms. Small businesses that could grow a community’s wealth can’t get off the ground.

“It’s a cycle that continuously prevents and stifles entrepreneurs’ economic growth and economic diversification,” says Heather Fleming, Executive Director of Native-led business incubator Change Labs. If the Navajo Nation were ranked globally for ease of doing business, Fleming says, it would be in the bottom 15 percent of countries, just above the Central African Republic. Change Labs extrapolated this ranking using data provided by the Navajo Nation government; according to Heasther, purchasing or leasing land for a business is even harder than that official data suggests.

In urban areas, Black communities continue to lose land wealth to gentrification, a trend that worsened following the 2008 financial crash.

Maps of predatory subprime lending almost exactly matched historical maps of redlining, which left Black homeowners almost 70% more likely to lose their homes in the foreclosure crisis than white ones. Nationally, Black households lost almost half their overall wealth.

Real estate speculators, increasingly from secretive private equity firms, swooped in to amass more properties for their portfolios, often exploiting homeowners’ lack of knowledge about the foreclosure process to get better deals. Short sales — in which an owner sells their property for less than the remaining mortgage to avoid formal foreclosure — became a way for speculators to buy up distressed properties by the dozens.

The loss of land not only results in stripping financial wealth from families, but cultural wealth as well. Jennie emphasizes this point: “It’s far more than just a parcel of land — it can be a window to the past that tells the story of a family, a community, or a way of life.Knowing about your family’s history and culture creates a sense of place and belonging.”

This speculation is part of a larger overall trend: private acquisition has replaced government seizures and discrimination as the primary drain on wealth in Black and Indigenous communities. It’s now rare for communities to suffer eminent domain seizures for infrastructure projects like highways, or endure overtly racist government policies. Instead, the government fails to create restitution for victims of predatory practices, or signs off on private projects, particularly fracking and oil, that destroy land.

Nowhere is this starker than the oil pipelines that snake through unceded Indigenous territories. Although the government no longer uses treaties to seize Indigenous land, those treaties are still in place, and as has always been the case, the government does not uphold the parts supposedly intended to preserve Indigenous lands. Multiple pipeline projects, including Dakota Access, Line 3 and Line 5 have violated Indigenous sovereignty and threatened the environmental safety of the areas they intend to traverse.

As movements for racial and economic justice have grown in the past fifty years, so have specific demands for the preservation, return and provision of land to Black and Indigenous communities. Indigenous activists have defeated many oil pipeline projects and continue to fight those still being proposed. Heather says the communities she supports are becoming more familiar with navigating the business and legal structures that allow for wealth-building. And according to legal expert Jillian Hishaw, another Common Future network leader, Native farmers have a USDA loan approval percentage above 90%

And just as Native communities are growing their capacity for navigating the systems that have worked against them, Black communities are doing the same. Since 2005, Jennie organization has provided consultations to over 23,000 people and given formal legal services to nearly 1,000. They’ve drafted 1400 wills and cleared almost 300 titles collectively worth $17.3 million. Although they cannot help families reclaim lost land, their work builds deep trust in the rural Black communities most likely to lose their land.

It all comes down to a simple fact, as Jennie says: “You can’t separate justice from the land.”

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