As It Happens·Q&A

MacArthur 'Genius' Grant winner fights to reform U.S. property laws that hurt Black families

Lawyer Thomas Wilson Mitchell won a 2020 MacArthur Grant for his work reforming U.S. property laws that negatively impact Black and vulnerable families.

Thomas Wilson Mitchell says people used to call him 'hopelessly naive' for trying to change state laws

Lawyer Thomas Wilson Mitchell won a 2020 MacArthur Grant for his work to reform U.S. property laws that negatively impact Black and vulnerable families. (MacArthur Foundation)

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When Thomas Wilson Mitchell got a phone call from the MacArthur Foundation, he didn't recognize the number — so he didn't pick up.

But then he checked his inbox and saw they had sent an email. It wasn't until Mitchell called back that he learned he was selected as one of this year's 21 MacArthur fellows.

The so-called "genius" prize comes with a $625,000 US grant and is given to "talented individuals who have shown extraordinary originality and dedication in their creative pursuits and a marked capacity for self-direction."

Mitchell is a lawyer and professor at Texas A&M University. For years, his creative pursuit has been to reform United States property laws that negatively impact Black and vulnerable families.

As It Happens host Carol Off spoke with Mitchell about his work and what it means to win the award. Here is part of their conversation.

First of all, big congratulations to you. Did you have any idea that you were up for a MacArthur Genius Grant?

Absolutely not. It totally took me by surprise.

How did you react when you learned?

MacArthur had first tried to phone everybody who had been granted or awarded the MacArthur Fellowship. Like a lot of the other awardees, I don't answer phone calls that I suspect are spam.

They then emailed me and said that they wanted to talk to me about serving on a grant review committee or something.

I had developed a whole speech where I was going to be very respectful and say how honoured [I was] that they were thinking about me serving in this capacity — and then tell them that I had no bandwidth and I was totally overextended so I'd have to decline the service opportunity.

When I started this work 23, 24 years ago, the received wisdom ... was that ... I was kind of hopelessly naive, a wild-eyed optimist, because the assumption was that this particular state law would be impossible to reform.- Thomas Wilson Mitchell

But instead they were calling to tell you that you got the grant and you had $625,000 you didn't know you were going to have.

Yes. And they revealed that in about the first two seconds.

So I went from trying to make sure I was my most polite self, and gently letting them down, to just being stunned.

I was actually, frankly, overcome with emotion. And I'm not typically a person who is easily emotional.

What did you learn about property law in the United States that you learned was giving such a disadvantage to Black families as property owners?

I ended up discovering that there was a state law in every state in the United States that governed the most prevalent form of common ownership of property. 

This form was incredibly unstable because it essentially allowed one person to file a lawsuit, petition a court to then essentially dissolve the ownership.

[That] would result in a court ordered forced sale of the entire property — even if the overwhelming majority of those who had an interest in the property wanted to maintain ownership of it.

And so how many people were losing their property because of this?

I think over the course of the last hundred years, like tens of thousands of families in a variety of states. Not just in the south, but throughout the country. But I'd say the problem was particularly severe in southern states.

Now, there's so many families, former slave families in some cases, people who got title of land, and by the turn of the last century, there were large numbers of people who owned land who were Black and African Americans. So why were they not able to secure the land? Why were other people able to do that and it was so difficult for for Black families?

Yes. First of all, kudos for recognizing that Black families did acquire land. Most people I've talked to don't realize that African American families or Black families in the United States actually ended up having any significant property ownership or land ownership.

Between the end of the Civil War in 1910, Black families accumulated between 16 and 20 million acres of land. But the major problem in terms of them being able to keep their land was that from the very beginning, these families had a fundamental lack of access to affordable legal services ... to ensure the continuity of the ownership of their property across multiple generations.

And then, consistent with that, the overwhelming percentage of these families ended up not having wills or other estate plans. So when they died, they then got the form of property ownership that the state will give you when you don't make a will or an estate plan through this process called intestacy.

And unfortunately for these families, that form of common, real property ownership that the state will give you just turns out to be the most unstable form of common, real property ownership that is recognized in the entire United States.

And then that begins kind of a cascade of problems, doesn't it? Because what we're looking at with systemic racism in your country, and in my country, is that if you don't own property you're excluded from all kinds of things.

You don't have leverage. You can't borrow. You can't expand. You don't have purchasing power.

Exactly. One of the major problems we have in the United States is the racial wealth gap, and this process of these families actually having a valuable asset and then having it subject to these forced, court-ordered involuntary sales.

Not only do these families lose their property — but then they were stripped of a substantial amount of wealth in the process, because these court-ordered sales typically produced a price well below market value — and in a number of cases, fire sale prices that represented pennies on the dollar of what the property was worth.

How successful have you been in this effort to reverse some of that and to restore the property rights and the ability to hold onto those property rights for these families?

What I am trying to do is help these families preserve their property and the assets. So that's the families who still have ownership. There ended up being many more families who still had ownership of their land or property, despite the substantial historical decline, than most people had realized.

So for that subset of families, this model state statute that I've worked on provides incredibly enhanced property rights protections that serve to enable these families to maintain ownership of their property.

And from admittedly anecdotal evidence, now I've heard in the states that have enacted it ... from lawyers on the ground and advocates for these families and communities, is that the law is working incredibly well and is working as intended.

Mitchell is a lawyer and professor at Texas A&M University. (MacArthur Foundation)

Well done.

Thank you, I appreciate it.

When I started this work 23, 24 years ago, the received wisdom, the consensus among law professors and lawyers in the United States, was that though this was a noble undertaking that I was proposing to engage in, that I was kind of hopelessly naive, a wild-eyed optimist, because the assumption was that this particular state law would be impossible to reform.

And largely based upon the fact that property owners who were most impacted were disadvantaged property owners, who were disproportionately African American or other people of colour, who fundamentally lacked economic power and political power. And so, the thinking was: what state would ever respond to their calls for reform?

In a number of Southern states, beginning from the early 1970s, for several decades, there were individual attempts, in individual states to change this law or reform this law. And they pretty much all met with failure.

And to go from this, you know, received wisdom that it was impossible to now we've had 17 states and the U.S. Virgin Islands enacted into law. Eight of the 17 states are actually southern states, which really shocks people.

Written by Katie Geleff and John McGill. Interview produced by Katie Geleff. Q&A edited for length and clarity.

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