The Tulsa Race Massacre of 1921: A Lesson in the Law of Trespass

The Connecticut Law Review Symposium poses the question: “History and the Tulsa Race Massacre: What’s the Law Got to Do With It?” In one sense, the answer to the question is easy. Since 1921, Black Tulsans have been looking to law and lawyers to address the harms inflicted during the Tulsa Race Massacre, albeit with little success. I was asked to consider, however, the startling lack of recognition of the Massacre—that is, the seemingly impossible feat of forgetting the racially motivated wholesale destruction of a community. In this Essay, I focus on one space of non-recognition, law schools, and on property law classrooms in particular. U.S. lawyers learn what property is and how the law defines, shapes, and protects it without any knowledge of the Tulsa Race Massacre. To explore the costs of such ignorance, I have rewritten the Symposium’s starting question to ask: what might we learn if property law was taught with knowledge of the 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 ongoing tasks of reevaluation, reparations, and redress with respect to Tulsa, but also to understand how property works in each community in the United States. As my long answer, I offer a property law lesson on the law of trespass. By incorporating the Tulsa Race Massacre in this lesson, we consider Black Americans as 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 the trespass doctrine, we could then review the doctrine with attention to the events of the Massacre, asking who committed trespass against whose property and assessing the legal consequences or lack thereof. The revised lesson would encourage 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 U.S. law, a truth grounded in history, we gain the power to stop repeating history and, instead, to make a different future by disrupting historic relationships that have tied property and power to racial identity