The purpose of this Article is to analyze the historical development of Washington's alien land law from the birth of the territory in 1853 to the drafting of the state constitution in 1889. Because alien land law necessarily involves relationships among people, this Article focuses not only on historical legal sources such as statutes, constitutional material, and judicial opinions, but also on the underlying social forces that compelled change in the law.
Allison Brownell Tirres, Property Outliers: Non-Citizens, Property Rights and State Power, 27 Geo. Immigr. L.J. 77 (2012). HeinOnline
This article posits that alienage law is a property outlier, since few of the norms of modern property law have been applied to non-citizens.
Keith Aoki, No Right to Own?: The Early Twentieth-Century "Alien Land Laws" as a Prelude to Internment, 40 B.C. L. Rev. 37 (1998), HeinOnline.
This Article recounts briefly the history and effects of the "Alien Land Laws" enacted in western states in the second and third decades of the twentieth century. These laws linked the virulent nineteenth century Sinophobia that culminated in the 1882 Chinese Exclusion Act with the mass internment of Japanese Americans in the mid-twentieth century. Initially, these laws barred "aliens ineligible to citizenship" from owning fee simple title in agricultural land and prohibited leases for such land lasting longer than three years. Ultimately, the ownership bar expanded to include all "real property," a term broad enough to encompass sharecropping contracts and shares of stock in corporations owning agricultural land as legally cognizable interests in land, and therefore, off-limits to alien ownership.
Megan Dooly, International Land Grabbing: How Iowa Anti-Corporate Farming and Alien Landowner Laws, as a Model, Can Decrease the Practice in Developing Countries, 19 Drake J. Agric. L. 305 (2014), HeinOnline.
Michael Cornelius Kelly, A Wavering Course: United States Supreme Court Treatment of State Laws Regarding Aliens in the Twentieth Century, 25 Geo. Immigr. L.J. 701 (Spring 2011), HeinOnline.
Jennifer Scott Moradi, Alien Ownership of Land in Oklahoma, 79 Okla. B.J. 233 (2014), HeinOnline.
Thomas W. Mitchell, From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, and Community Through Partition Sales of Tenancies in Common, 95 Nw. U. L. Rev. 505 (2001), [HeinOnline]
Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Ala. L. Rev. 1 (2014), [HeinOnline]
Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales.
This Article reviews and analyzes the Uniform Partition of Heirs Property Act (UPHPA), a uniform act that represents the most significant
reform to partition law in modern times. I served as the Reporter, the person charged with principal responsibility for drafting a uniform act
promulgated by the National Conference of Commissioners on Uniform State Laws, for the UPHPA. The Article summarizes those aspects of partition law that have resulted in thousands of property owners losing millions of acres of property and the real estate wealth associated with such property. The Article also provides an analysis of key sections of the UPHPA, and this analysis makes clear that the UPHPA represents a very comprehensive and innovative reform to what heretofore had long been perceived to be the intractable problem of tenancy-in-common land loss.To this end, the Council of State Governments selected the UPHPA as one of thirty-five newly enacted statutes or uniform acts for inclusion in its 2013 Suggested State Legislation publication (from hundreds of submissions by state officials from across the country) to encourage states to consider it as a model. The UPHPA has been enacted into law in four states, it was introduced for consideration in four other jurisdictions in 2014, and a number of states are on the cusp of introducing it for consideration in 2015.
Sean Robertson, Natives Making Space: The Softwood Lumber Dispute and the Legal Geographies of Indigenous Property Rights, 61 Fac. Native Stud. (2015). ScienceDirect.
Frances Lee Ansley,
Roots of title in the New World: pp. 1521-23
Slavery: pp. 1523-26
Race and the Constitution: pp. 1539-54
Elizabeth Loeb, As "Every Schoolboy Knows": Gender, Land, and Native Title in the United States, 32 N.Y.U. Rev. L. & Soc. Change 253 (2008), HeinOnline.
Joseph William Singer, Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest, 10 Alb. Gov't L. Rev. 1 (2017), Albany Governmental Law Review.
Joseph William Singer, The Indian States of America: Parallel Universes & Overlapping Sovereignty, 38 Am. Indian L. Rev. 1 (2014), Indian and Aboriginal Law Commons.
Joseph William Singer, Property and Coercion in Federal Indian Law: The Conflict Between Critical and Complacent Pragmatism, 63 S. Cal. L. Rev. 1821 (1990), HeinOnline.
Maivan Clech Lam, The Kuleana Act Revisited: The Survival of Traditional Hawaiian Commoner Rights in Land, 64 Wash. L. Rev. 233 (1989), HeinOnline.
Abstract from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography:
Analyzes the historical context of the Kuleana Act of 1850 and cases interpreting it. The Act was designed by King Kamehameha III to give native commoners fee simple rights to land. Points out that although the Act may have been well intentioned, authorities ignored traditional Hawaiian land use, which regarded all commoners as tenants in common to all land, and frustrated the goals of Kamehameha's government. Further, the commoners were only apportioned a small amount of the available land to divide into fee simple holdings. Argues that the old regime of land rights survives the system imposed by Western demands, and that Hawaiian land must now be reassessed and granted to the descendants of the earlier commoners.
Justin Lee, The Curious Case of Land Inheritance: Metaphor and Hawaiian Land Tenure, 13 APLPJ 252 (2011-2012), HeinOnline.
Melody Kapilialoha MacKenzie, Ke Ala Loa - The Long Road: Native Hawaiian Sovereignty and the State of Hawai'i, 47 Tulsa L. Rev. 621 (2012), HeinOnline.
D. Kapua'ala Sproat, Wai Through Kānāwai: Water for Hawai'i's Streams and Justice for Hawaiian Communities, 95 Marq. L. Rev. 127 (2011-2012), HeinOnline.