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PODCAST

The Leading Voices in Food

E213: Righting the Wrongs of Heirs Property

Hosted by: Norbert Wilson (Duke)
August 25, 2023


In the United States, food insecurity is unevenly distributed. Recent data suggests that white households have nearly a third to one half the food insecurity rate of Black and Hispanic households. While research on the reasons for food insecurity typically focuses on income, a body of research suggests that wealth could be an important factor in food security. According to today’s guest, Conner Bailey, professor emeritus of Rural Sociology at Auburn University: “Land is one of the major sources of wealth controlled by Black families in the South, and much of this land continues to be owned as heirs property.” Thus, if we want to understand differential food and security, we need to consider that the wealth implications of heirs property.

Conner Bailey is an emeritus professor of the Department of Agricultural and Rural Sociology in the College of Agriculture at Auburn University. He holds a Ph.D. in development sociology from Cornell University. His research has focused on the problems of persistent poverty associated with resource dependence, the emergency of grassroots environmental movement surrounding issues of environmental and natural resource management, issues of environmental justice, and the human dimensions of fisheries and coastal resource systems. Bailey has been working on the issues of heirs property for more than 20 years. His publication “Heirs Property, Critical Race Theory, and Reparations,” recently won the annual Rural Sociological Society’s Best Paper of the Year award.

Interview Summary

Connor, recently, the topic of heirs property has attracted much attention from researchers, policymakers, and civil society. Can you briefly describe the phenomenon of heirs property and why you think it’s important?

I think of heirs property as, in a phrase, “the legacy of Jim Crow.” By that, what I mean is that during the Jim Crow era, imagine say 1880, you’re 15 years after the end of the Civil War, and you’re a Black farmer, and you’ve bought some land, are you going to write a will to pass that property down to your heirs? Probably not, because your access to education is pretty limited. Moreover, there are no Black lawyers because where are the Black lawyers going to come from if there’s no education for Black people, right? That’s the Jim Crow era. So, what’s your choice? You’re not going to go to the white lawyers for the courthouse gang that you simply don’t trust. The whole legal system is something that Black farmers, and Black people generally, fundamentally did not trust. This is the era of lynching after all, when people would be pulled from their homes, and in front of the law, nobody would be able to say who perpetrated these crimes. It was a difficult time for African-Americans, for Black people, for Black farmers generally. They wouldn’t write wills because they didn’t trust the legal system. What we end up with is that family that bought land in 1880, and they pass on, and the next generation, and the next generation, they’re still not writing wills. We know that many people don’t have wills. I don’t know, Norbert, if you have a will. I don’t need to know, but the fact is, many people, white and Black alike, and Hispanic and others, in this country don’t have wills. But when they die, they’re able to sort things out before it passes on to the next generation and becomes increasingly complex and confused and tangled. That’s not true in the case of African-Americans and some other politically marginalized populations, white people in Appalachia, Hispanics, Native Americans, Hawaiians. heirs property is not just a Black phenomenon in the South, though that’s where my research and most research on heirs property has been.

What we end up with in the case of the Black South, heirs property is something that is multi-generational. It’s not simply dying without a will intestacy, but it’s the dying without a will over multiple generations so that you end up with maybe 200 people who own a house or a piece of property, farm, or some forest land. How do you make decisions in a situation like that on maintaining a house, or improving the farmland, or planting trees, or whatever it is you’re going to do with that property? How are you going to go to a bank and say, “I want a mortgage”? They’re going to say, “Well, how do we know who’s got the rights to sign on a mortgage?” As a result, there’s no access to commercial credit. Until very recently, and we can come back to this later, Black farmers had no access to government credit programs through the US Department of Agriculture. They could not get credit loans. If you were in the Lower Ninth Ward of New Orleans and you were wiped out by hurricane Katrina, you had no access to FEMA support because you did not have clear title. Heirs property is a form legally called Tenancy in Common. That means you don’t have clear title. Nobody has clear title. Everybody owns a share of the property as a whole. Now, one of the reasons it’s important is it’s not a small phenomenon.

Today, based on research that I’ve done with my colleague Ryan Thompson at Auburn University, there are in the 11 states of Appalachia and the South, 5.4 million acres of heirs property worth something like $43 billion. That’s after enormous amounts of land have been lost through predatory actions. Legal but predatory partition sales, tax sales, and the like. Heirs property is a source of vulnerability. People have lost property in large areas. That whole stretch of coast of the South Atlantic, from Myrtle Beach down to Jacksonville, Florida, all that resort land, that was Black-owned land until after World War II. In the 1950s, once malaria was controlled in that area, bridges were built to the Sea Islands, developers followed, and properties were basically stolen through legal means, through something called a partition sale. Now you’ve got this enormous resorts being built there, much money being made, but these people who have lived there for generations have been dispossessed.

So, why is it important? It’s for all these reasons, for these moral reasons, for the impact of the fact that you’ve still got millions of acres that’s tied up in heirs property that people can’t develop and utilize effectively for farming or forestry, or even for their own homes. It’s one of the main reasons of wealth disparities, as you mentioned at the outset, Norbert. That the wealth disparities between white and Black are enormous. The St. Louis Fed just last month put out a study that showed that for every dollar of wealth that white Americans own, Black Americans own 24%. Black Americans own very much less wealth. Heirs property is one of the reasons. It’s not the only reason, but it’s one of the reasons, because lands have been stolen, lands have been lost, and those lands that still remain in heirs property, five-plus million acres just in the south of Appalachia, are underdeveloped, underutilized, and under-preserved.

Thank you for that. Connor, I want to ask you a question about trust. It’s in the paper, and you mentioned it earlier, this idea of African-American, Black households, Black individuals not trusting the legal system. The reason I want to push on this is one could argue that trust could be because you may not know any better or you don’t have enough information. We don’t trust strangers because we just don’t know what they could do. I’m wondering if another way of looking at this, something I’ve learned from people who do work on bioethics, Wylin Wilson here at Duke and others have talked about this, about the systems being untrustworthy. It’s not that people aren’t aware or can’t navigate, but rather that the system or the institutions have proven not to do right by individuals. How does that characterization sit with the work that you’ve been doing?

Well, as I’ve been working on heirs property, as I have for 15, 16 years now, this phrase, “Black farmers, property owners generally did not trust the legal establishment, didn’t trust lawyers, the courthouse gang,” that’s an easy statement to make. But as I started looking at the literature on heirs property, there wasn’t a lot of background to that. I spent several months reading a bunch of older literature, W.E.B. DuBois, Arthur Raper, and others who were documenting what it meant to be Black in the rural south in the early decades of the 20th century. It’s very clear to me that Black property owners and Black residents of that region as a whole had very good reasons not to trust the legal system. It was used against them in many cases. People simply avoided going to the courthouse whenever possible.

Now, this is an important point, and so thank you for exploring that with me. I’ve got to ask, I know you were at Auburn University and you’re now retired. What led you to study heirs property and unearth its importance? Why are you still doing this work?

The second question is very easy to answer but also very important. There is a moral quality to the research that is done on heirs property. The work that I’m doing – and others, and I’m not the only one – the work that we are doing has a moral quality to it. We’re trying to identify problems and redress wrongs. That’s what gets me up in the morning. I mean, I’m seven, eight years, seven and a half years out from retirement. but I’m still publishing on this topic because it’s important. Now, how did I come to realizing that? From a very good graduate student of mine named Janice Dyer, who was working in West Alabama on a different project, having nothing to do directly, we thought, at the time, on heirs property. The project was really on small scale wood harvesting and processing so that people could build homes using wood that’s on the land that they owned. Janice came back after spending some time out in the field and said, “Hey, there’s this thing, heirs property. People don’t have clear title to their land.” I said, “Oh, okay.” I read a little bit about that, but she said, “No, no, this is a really important thing. Pay attention.” Okay, Janice, I’m going to pay attention. And you know, here I am 16 years later. I’m still paying attention. One of the reasons professors get better at their jobs, and Norbert, you should appreciate this, is that we work with really bright students over time, and we gain so much from working with these students and undergraduates as well. So, I came to this because a graduate student pulled me into it and said, “Pay attention. This is important.”

Thank you for that. I do agree there is something critical about engaging students to understand that topic. I want to actually take that a step further and because I know of some of the other work that you’ve done, how have you engaged communities in this work? Obviously, this is not an ivory tower kind of issue. This is something that affects the livelihoods of everyday people. How and in what ways are you engaging that community of folks?

I work with people in civil society organizations like the Center for Heirs Property Preservation in Charleston, South Carolina, created by a woman named Jenny Stephens back in the early, I think, 2004 or 2005, and other organizations that represent people who own heirs property. I’ve been working with people in the legal community through the Uniform Law Commission and all kinds of other groups. It’s simply a matter of understanding that what we can do in the ivory tower is important because we can document the extent of heirs property, for example. That doesn’t take working with communities, but we need to be working with people in communities affected by heirs property so that we understand the real significance of it and to keep the moral energies flowing. So, for example, my co-author on a couple of recent papers, Ryan Thomson at Auburn, he did his doctoral dissertation with the Gullah Geechee in South Carolina, which is near where Jenny Stephens in the Center for Heirs Property Preservation is located. Ryan worked actually far more closely with people who were heirs property owners and organized around that issue than I have done. But it’s really important to understand from the people who are living the life of heirs property owners and who are facing the struggles to understand what are the issues so that as researchers, we can try to address those issues and try to come up with policy recommendations that might be helpful.

Thank you. One of your recent publications titled, “Heirs Property, Critical Race Theory, and Reparations,” recently won the annual Rural Sociological Society’s Best Paper of the Year award. First, congratulations, but secondly, can you explain your approach and your findings.

As I was saying earlier, I was looking at the question of trust, the trust of Black property owners and Black residents of the South to the legal system. As I was reading that literature, the idea of critical race theory simply emerged into my consciousness. I did not start off my reading saying, “Okay, I’m going to go look for evidence that’s going to show critical race theory.” Rather, it kind of emerged because critical race theory talks about the longstanding, deep institutional patterns of discrimination that are built into our legal system, our cultural system, our educational systems. They are so deeply ingrained that we often don’t even recognize them, or we consciously, sometimes, ignore them. But there are discriminations built deeply into our systems sometimes that we don’t recognize. What heirs property represents, as I said at the very outset, the legacy of Jim Crow. The legacy of Jim Crow is all these institutional limitations placed on Blacks in terms of access to education, legal services, and commercial loans, insurance for their properties, redlining in cities of where you could get government assistance or not. All these things are built in and are deeply embedded. Even though we have removed many of the outward mechanisms and trappings of racial discrimination, these patterns are still there. To speak of heirs property in terms of critical race theory simply made sense. It emerged the realization in my mind that this phenomenon of heirs property is rooted in these institutional relationships. It sort of hit me between the eyes with a two-by-four. It was like, wow, this is a perfect use of a theory to help explain a phenomenon. That’s what academics, we should be pretty good at that, but that’s what I’ve basically done. I don’t think of myself as a theoretician, but the theories help us understand here are the key variables, the key phenomenon that we need to focus on if we’re going to understand that particular phenomenon.

The question of reparations, which is the last term in that title, refers specifically to the Gullah Geechee, and I was talking about earlier, about that stretch of land. It’s now billion dollar resorts. It’s unrealistic to think that anybody’s going to come and take that land away from Hilton and Sheraton, and all these major corporations, and give it back to the Gullah Geechee. That’s just not realistic. But what if we charged a 1% lodging tax? There are already people coming and using those resorts who are already paying six and 7% on top of their bill for police and fire protection and things for the local counties and municipalities. What if we added 1% and gave that to the Gullah Geechee? There’s a couple of entities, and I believe to others to make that decision. Who? But there’s the Gullah Geechee Nation, and there’s also a federally mandated Gullah Geechee Cultural Heritage Corridor. It’s a 501 organization. Monies from that could be utilized to support the Gullah Geechee in clearing title for their remaining heirs property or for buying new properties to replace those that have been stolen, legally, but still stolen. So, to support the subsistence fishing and farming activities that have supported the Gullah Geechee for many, many generations, stating back to the post-Civil War era.

Thank you for that. This is going to really move us into this last question that’s connecting this idea of, and I appreciate how you talked about how theory can help us as researchers do the work that we do, but then there are implications of that theory to actual policy and the lived experiences of folks. My question is, how has the research that you and others have done on heirs property affected policy at the local state or even federal levels?

As I said, there’s a large number of researchers and others working on heirs property. I want to give a shout out to a couple of organizations that have been really critically important. The Southern Rural Development Center based at Mississippi State has become a really important convener of a lot of us working in this heirs property space. We have regular monthly Zoom calls. We have subcommittees on research, on policy, and on education and extension that meet regularly. There’s a policy center at Alcorn State University that has become very important in helping organize and support research on heirs property. There’s the Federal Reserve Bank of Atlanta that has also served as a convener and bringing people together. So, we’ve got individuals. We’ve also got some really important institutional actors that are providing continuity for those of us who are wanting to find a mechanism to interact, but they’re providing that mechanism. There’s a lot of people working on the question of heirs properties becoming increasingly visible not only in the research space but also among policy makers. For example, in the 2018 Farm Bill, there was wording introduced and passed in the 2018 Farm Bill, that allowed heirs property owners who were farming land to gain access to what’s called a farm number through the Farm Service Agency. The farm number is critical, because if you have a farm number, you can now get a loan from USDA. Before that, heirs property owners could not. Basically, farmers operating heirs property now for the first time have access to credit through the USDA. That’s a very important step forward. It actually came from a South Carolina Republican Senator Scott, and an Alabama Democrat Doug Jones, who worked up the wording on this, and it got later placed into the Farm Bill.

The other thing that’s happened is that FEMA, I mentioned Katrina earlier, FEMA has revised their policies so that now, if you can prove you’ve lived in that home, you’ve lived on that property, you’ve paid property taxes, you’ve got maybe home insurance or whatever, if your property is damaged, destroyed in a natural disaster, a storm, FEMA will now help you. But 10 years ago, that was not the case. This happened only in the last couple of years. The point is, people have started to pay attention to heirs property. I’ve got to say people working in the media like Politico and The Atlantic and the New York Times, and The Washington Post, they’ve picked up on this. They’ve called researchers. They’ve called people like me and colleague Ryan, and they’ve gotten the facts from us, and they’ve developed it. They’ve gone and interviewed people, and they’ve developed the stories. And the media has also drawn a lot of attention to the issues associated with heirs property. It’s been kind of a full-court press. We’ve all been moving forward on this.

 

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