Swanson on The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass @KaraWSwanson @ConnLRev

Kara W. Swanson, Northeastern University School of Law, is publishing The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass in the Connecticut Law Review. Here is the abstract.

In my remarks today, I am focusing on this symposium’s subtitle: “What’s Law Got to Do with It?” In one sense, the answer to that question is easy. Since 1921, Black Tulsans have been looking to law and lawyers to address harms suffered during the Tulsa Race Massacre, largely unsuccessfully. This starting panel, though, is not about redress, as important as that topic is, but rather about the startling lack of recognition of the Massacre, that is, the seemingly impossible feat of forgetting the racially motivated wholesale destruction of a community. I want to focus on one space of non-recognition, law schools, and particularly, on the property law classroom. US lawyers learn what property is and how the law defines, shapes, and protects it without any knowledge of the Tulsa Race Massacre. Without knowledge of the Massacre, lawyers are ill-equipped to answer “what’s law got to do with it?” We cannot use law to change injustices that we cannot see. The costs of such ignorance on the part of lawyers reach beyond the bounds of Tulsa and “its search for justice,” however, as important as those localized discussions are. To explore these deeper costs, I have rewritten our starting question to ask: what might we learn if property law was taught with knowledge of the Tulsa Race Massacre? My short answer is that we all, as lawyers, would learn about race and property in ways that would not only better equip us to engage in the crucial on-going tasks of reevaluation, reparations, and redress with respect to Tulsa, but also to understand how property works in each community in the United States. The events in Tulsa on May 31 and June 1, 1921 offer new insights into how, as Professor Cheryl I. Harris demonstrated, “rights in property are contingent on, intertwined with, and conflated with race.” As my long answer, I invite you to follow me on a thought experiment into a lesson that is included early in most property courses, a lesson on the law of trespass. By adding the Tulsa Race Massacre to this lesson, we consider Black Americans as successful property owners, a role in which they seldom appear in a property course. I consider how, once students have learned the definition and purpose of trespass doctrine, often considered foundational to the very meaning of property, we could then review the lesson with attention to the events of the Massacre, asking who committed trespass against whose property and what the legal consequences were. The revised lesson encourages us as lawyers to be attentive to our roles in defining and enforcing property rights in racialized ways. By recognizing the conflation of property rights and race in US law, a truth grounded in history, we gain the power not just to address history – as important as that task is – but also to avoid repeating it, that is, to make a different future by disrupting historic relationships that have tied property and power to racial identity.

Download the article from SSRN at the link.