Professor Gibson provides a unique look at Black land loss through heirs’ property in the Low Country, an area located on the southern tip of South Carolina which includes the Sea Islands. Her paper concludes that “heirs’ property is more a product of the deeply entrenched racial caste system of racist governmental processes and laws that have militated against Black land ownership and wealth.” As such, she indicates that landownership has been a source of wealth mobility for some, but that intestacy succession to property has caused wealth to decline in the Low Country, disproportionately for Black landowners.
After a brief historical review of the obstacles and hardships of Black landownership since the Reconstruction era, Professor Gibson analyzes how systemic racism has impacted Black land loss in the South, specifically in the Low Country. She begins by explaining how farming was the primary source of income for many Black landowners in Low Country. By the end of the 20th century, however, Black farmers had lost over ninety percent of their land. She attributed these substantial losses to government action, commercial developers, and the complicated nature of heirs’ property.
First, she discusses the history of the United States Department of Agriculture (USDA) subsidizing and facilitating White farmers with their resources. In the early days, the USDA issued subsidies for larger farming operations, owned predominantly by White farmers, while excluding federal support for Black farming operations. Some White farmers received subsidies that incentivized not planting, which resulted in Black tenant farmers losing their jobs and being evicted. The subsidies were used to purchase farm machinery, eliminating the need for Black tenant farmers. Further, she discusses how the USDA retaliated against Black farmers for participating in the Civil Rights movement by refusing loans, restricting their crop production, and interfering in local commissions that distributed federal funds. She also notes that more recently a substantial amount of the bailouts paid under the Trump administration went to White farmers.
Next, Professor Gibson addresses the impact of commercial development. She notes that by 1980 Black landowners in Hilton Head had lost about 1,000 acres to commercial development. Commercial developers are sophisticated in land transactions and understand how to use heirs’ property to their advantage. In doing so, they focused on the waterfront property that caters to the tourist industry. This resulted in a substantial loss of land for Black landowners in the Low Country and a takeover by wealthy White residents.
Finally, Professor Gibson focuses on the problematic ownership model of heirs’ property. When property passes to heirs by intestacy, they co-own their interests as tenants in common. Although this form of ownership ensures equal use of the inherited property, it has proven to be problematic over time, as the number of heirs subdividing property multiplies with the passing of each generation. In due course, the heirs may continue to have a blood relationship but their personal relationships may dwindle or disappear altogether. Fractionalized ownership erodes the value of a tenancy in common and makes it difficult to improve, leverage and sell the property as a whole.
Professor Gibson identifies a number of measures that have been taken to address Black land loss in the Low Country. Several organizations, including the Center for Heirs Property Conservation, the Heirs Property Law Center, and the LEAP Coalition, provide a range of services such as education, pro bono legal assistance, and financial support to prevent land loss. She also explains how the Uniform Partition of Heirs Property Act (UPHPA) was adopted to address partition abuses by commercial developers.
Professor Gibson further explains legal measures that aim to combat land loss through intestate succession. In addition to adopting the UPHPA, South Carolina’s legislature presented a joint resolution to establish the Heirs’ Property Study Committee to examine current and prospective measures to address the challenges created by heirs’ property in South Carolina. She describes the 2018 Farm Bill that targets discriminatory practices of the USDA, grants access to Farm Service Agency elections, and provides alternative documentation for heirs to access the new legal protections. Furthermore, President Biden provided Black farmers with substantial financial relief through grants and loans and established a racial equity commission to address systemic racism caused by past actions of the USDA.
Professor Gibson’s recommendations for further action include making attorneys available to provide pro bono services such as free wills and legal assistance to Black landowners who need representation. She further recommends that courts default to partition in kind rather than partition by sale in order to preserve family property, and that courts should provide diversity, equity, and inclusion training for judges.
This article is valuable because it addresses the multigeneration harms caused by government treatment of Black farmers and the additional problems resulting from heirs’ property—both leading to substantial Black land loss. In addition to losing the land, the residents in the Low Country, specifically the Gullah-Geechee, may also lose their homes, their primary source of income, family wealth, and cultural values. In addition to laws that curtail commercial development and provide financial support, Professor Gibson calls for attorneys to embrace the responsibility of gaining cultural competency and pursuing justice for society at large.
Thank you so much for the very complimentary review of this article. You have well captured the essence of the heirs’ property problem that I sought to convey in the article.