Annie Kuo: Hello and welcome to Discovery, a podcast at the University of Washington, where we explore legal topics with the law school's faculty and distinguished guests from around the world. I'm your host, Annie Kuo. On this episode, we're doing something new. We're interviewing a guest before their visit to UW law.
We鈥檙e featuring this conversation with Dr. Kara Swanson on the occasion of Black History Month about the Tulsa Race Massacre of 1921 and what it has to teach us about the law of trespass. Dr. Kara Swanson will be speaking with our 1L Perspectives students. Perspectives became a national speaker series during the pandemic. Kara Swanson is a Professor of Law and Affiliate Professor of History at Northeastern University in Boston, where she is also Associate Dean for Research and Interdisciplinary Education. W
Welcome Dr. Swanson to the podcast.
Kara Swanson: Thank you. It's really a pleasure to be here.
AK: So, in 2021, you participated in a symposium on the Tulsa race massacre titled 鈥淲hat's Law Got to do With it?鈥, and it was focused on this tragic event of history. 2021 was the 100th anniversary of what you called racially motivated wholesale destruction of a community 鈥 the Greenwood area of Tulsa, Oklahoma 鈥 over two days, May 31 and June 1, 1921. You argue that property law must be taught with an understanding of history but for many years until the scholarship of your colleagues Scott Elwood and Alfred Brophy, the Tulsa Race Massacre was a little-known event.
First, could you tell us about what happened? And then why this has been forgotten until more recently, and I would say 鈥渇orgotten鈥 is a little too kind, this is through some deliberate efforts.
KS: Yeah, so I'll start out by just sketching briefly what happened in those two days, 100 years ago. And I do so with the knowledge that recounting these events is painful. And thinking about what happened is painful. And it is important to remember and understand. And it's also important to take care of ourselves and others as we excavate these tragic events in the past, and that's a needle that I try and thread in my scholarship and in our discussion today. So, I might sound a little bit 鈥渏ust the facts, ma'am鈥 and I do that in part because I don't want to burst into tears, as I'm telling you this story because the more you think about it, the more you sit with it, the more painful it becomes.
So, in sort of just the barest facts, in Tulsa, Oklahoma in 1921, there were basically two Tulsa. There was white Tulsa with its residential neighborhoods, and it's downtown, and it's all-white schools. And there was the Black district, which was called Greenwood, which is where Black Americans owned homes over 10,000 Black Americans were living there at that time. There was a thriving business district, which Booker T. Washington a few years before had nicknamed 鈥淭he Black Wall Street鈥 just because it was such a vibrant business community. That's where the city's only Black high school was located as well in Greenwood.
In, you know, late May of 1921, Black and white Tulsa are going about their business. The Black seniors actually in Greenwood were at the high school getting ready to decorate the place for their graduation, which was coming up. And unbeknownst to almost everybody, on May 30, there was an encounter in the white downtown between a young man named Dick Rowland, who was a Black man from Greenwood, who worked as a bootblack. Basically, somebody who shined shoes and a young woman white woman whose name was Sarah Page who had the job of operating the elevator in a downtown building. And nobody knows what happened between the two of them except the two of them. But there was some encounter in which Roland was either entering or exiting the elevator in which Sarah was operating. And perhaps their bodies touched in some way. There was some kind of physical contact.
What we do know is that rumors started flying fast, perhaps spread by one of the white businessmen who had a business in that building, that Roland had assaulted Sarah intentionally. And on the afternoon of May 31. The white Tulsa newspaper published a very inflammatory account of the events. And that evening, Dick Rowland was arrested and taken downtown to the courthouse and the jail was on the top floor of the courthouse.
Given the history in Tulsa and the history around the country in the 1920s, Black residents of Greenwood were extremely concerned that Rowland would be lynched. So, the white mob would remove him from the jail and hang him, that there would be extra legal justice enacted because these rumors were flying, inflamed by the newspaper that a black man had attempted to assault a white woman.
So, Black men in Greenwood didn't want to see another lynching happen in their town. Many of them had recently returned from fighting in the U.S. forces abroad in World World One. A group of them got together. The ones that had old wartime uniforms, put their uniforms on, they took their weapons that they had. And they went to the courthouse that evening where there were a lot of white men milling around outside. And they said to the sheriff, we're here to help you sheriff defend your jail, to keep it from being breached, to keep Rowland from being taken out. The sheriff didn't really want a lynching. But he also didn't really want armed black men surrounding the jail.
He had a conversation with the men from Greenwood and the sheriff persuaded them that it would be actually safest for everybody if they would return to Greenwood and let him handle it.
As they were turning to leave, a shot was fired. And I say that in the passive voice because nobody knows who fired the shot or where it went. But in that first volley of shots, both Black and white Tulsans were shot in the crowd. That of course ignited a firefight. The Black residents of Greenwood knew that they were greatly outnumbered. They piled back into their cars. They drive back to Greenwood. They flee.
The white mob that is around the courthouse is inflamed, more enraged by this event and they start looting stores. Actually, white-owned Stores in downtown Tulsa, pulling out weapons and handing them out, arming the crowd. Eventually, the sheriff actually deputized some of them and started giving out guns. The residents of Greenwood start passing the word that something very bad is happening and that everybody needs to be watchful. They spend a very nervous night the night of May 31. And then eyewitness reports say that near dawn the next morning, many people report hearing a siren go off. Nobody knows what that siren was or what it meant. But right after that, basically an armed invasion began in Greenwood. It was separated, as many Black districts were, from the rest of the community by railroad tracks and armed white mobs advanced across the railroad tracks. An airplane flew overhead with people firing out of the airplane trying to hit Black residents in the streets. There was a machine gun put at the top of a hill, atop of one of the prominent streets that was firing machine gun rapid fire down the streets. Many residents, many women and children, also the elderly, were fleeing, trying to get north. Trying to get out of the city altogether, fleeing into the country.
Other Black residents, predominantly men took up arms and prepared to defend their homes and basically what ensued was urban warfare. You know, door to door. People running in and out of buildings, trying to shoot from the windows 鈥 hide, repel the invaders. But Black Greenwood was definitely outnumbered and what happened over time is that the white mob killed many people and started going door by door, building by building and telling the residents 鈥淐ome out. We're going to burn your place. And if you come out,鈥 鈥 under the threat of gunfight 鈥 鈥渃ome up with your hands in the air.鈥 And they were marching the residents with their hands in the air to 鈥 they created the internment sites in Tulsa, including the baseball stadium. It became an internment site. So, armed moms are marching people out of their homes, while unarmed white residents of Tulsa, everybody's like 鈥淐ome on down to Greenwood.鈥 They literally arrived with shopping bags and people started going through and looting businesses and homes and then other groups of people were coming along behind them and setting them on fire. So, removing the people under the threat of death, looting their possessions and burning things to the ground.
Obviously, things were wildly out of control and the local national guard, the local sheriff's department, local police department were doing nothing to stop this. Eventually another contingent of National Guard arrived by midday from Oklahoma City. And the Black residents of Greenwood say that that group of National Guardsmen actually helped disarm the white civilians and get them out of Greenwood at the same time that they were also helping the internment process that was continuing throughout the day. And by the end of June 1. There was no Greenwood. The business area had been burned to the ground. More than 1,000 homes had been destroyed. Everybody had fled, they didn't have a place to live or they were interned, they were out in the country. The number of people that died is unknown to this day. Some early, obviously false, estimates, were 29 people. Other estimates are 300 or more. Only to say that $26 million of property was destroyed in that day and a half. And it took months and months and months to rebuild Greenwood. Although it did come back as a vibrant business district by World War Two and the American Red Cross came in and treat it as a disaster zone and set up tents and the residents lived in tents all winter.
So, that's the story of the Tulsa Race Massacre. And you also asked me why and how it had been forgotten. And it was forgotten in two ways. White Tulsa wanted to forget it because it was embarrassing. It was not a shining moment for the town. Black Tulsa wanted to forget it because it was traumatic.
It was an absolutely horrifying moment in which there was no safe place to be. And there are eyewitness accounts that were collected afterwards of, you know, children talking about hiding under beds as people came into their house and set it on fire. Women talking about fleeing down the street. People talking about trying to help their elderly relatives evacuate when they could not move well. All the kinds of fear that you can imagine. And due to those conflicting reasons to forget, it was something that was not talked about in Tulsa and therefore was not talked about in Oklahoma and is not talked about in other places. It's largely been left out of formal curriculum of U.S. history. And I say that, as somebody who was educated in schools in the United States that I never ran into this in any of my education, including my years of getting a Ph.D. in U.S. history. This is not something that was ever part of my curriculum.
So, when I was asked to participate in this symposium, the first thing I had to do was learn about this. And I want to separate then, yes, forgotten, not talked about, but also not forgotten. Because whenever we use the word forgotten, we have to say, well, who's doing the forgetting? I was educated in majority white schools. And in those schools, I wasn't taught about this. If you talk to the right person in Tulsa, you would always hear this story, right? Of course, it wasn't forgotten. Right? So, forgetting, it's always a question of which community is forgetting and which community is remembering. So, when we say it is forgotten, that is true. But we also cannot forget the people who were remembering at the same time.
AK: Should we talk about what you see as a property law professor? You see trespass here in this scenario. And there is a Wisconsin Supreme Court case from 1997 that illustrates this definition of trespass: Jacques v. Steenberg Homes. Can you tell us about the case and the principles that it demonstrates?
KS: I will, but before I tell you about that, I want to tell you that what we're talking about is part of my journey to understanding and thinking about property in the United States and what it means to be a lawyer in the United States. So, as I just said, I came to the symposium needing to educate myself. Needed to, before I could participate, really figuring out what the Tulsa race massacre was.
AK: I think that's why your paper is so accessible, because we're learning alongside you, you're sort of sharing your process about how you found out about this and then applied it to your teaching of property law. And then looking back, how did you learn about property law? And how do we not perpetuate this norm of erasure in legal education?
KS: Right, and that term, 鈥渢he norm of erasure鈥 was coined by another law professor K-Sue Park, to describe what she says is the general absence of attention to race in the ways that property has been taught in American law schools. And that was definitely the way that I was educated. Perhaps it has a place in talking about constitutional law, but it's not part of teaching property law doctrines.
So, as a student myself, that is somebody who is trying to understand this event in the past, I was at the same time in a property law classroom with my beloved 1L students, trying to help them understand property law doctrines. And this juxtaposition, this part of my journey helped me think about the case that you just mentioned, Jacques v. Steenberg Mobile Homes in a new way. And that's a case that I use and many property law professors use to teach the basic doctrine of trespass which is something that's seen as a very straightforward foundational part of property law.
What is trespass? It's the unprivileged intrusion into the property by another. And as a property owner, you should have the right to exclude others from your property. What is property unless you can exclude others and the Steenberg case says that very nicely.
It also happens to be a case from my home state. I grew up in Wisconsin. And it's about two white retired farmers in Wisconsin who tell this mobile home company that they cannot move a stranger's mobile home across their property. The mobile home company wants to save money by moving across the Jacques field because it's Wisconsin. And I can say this from personal knowledge. It's Wisconsin, and it's really snowy and the private road to the buyer, the mobile home buyer鈥檚 property, is covered with snow. The first thing you're gonna have to do is plow it out. And they see a much straighter, more direct path by going across the Jacques property and they come to the Jacquesand they say, Hey, can we go across your property? The Jacques say no. And they're like, 鈥淲ell, yeah, how much will make it worth your while?鈥 And the Jacques say, actually, there's no amount of money that will make it worth our while. We do not want you on our property. And we have the right to say no. And they call the sheriff and they have a discussion about that. The sheriff agrees it's their property. And then when the sheriff leaves and the Jacques go back into their house, the mobile home company drags the mobile home across their property anyhow. They just ignore the Jacques decisions to say no.
And we talk about that in the class, because the Wisconsin Supreme Court says, well, we all agreed that actually there wasn't any damage to the Jacques field. It was frozen, it was the middle of winter. No harm. You know, the snow melted. And you could never tell it was there. But we think that there was actual harm to the Jacques. They had the right to say no, and that was not listened to. And so we are going to uphold the jury verdict, which awarded them $100,000 for that harm, that loss of their right to say no.
And I was talking about this with my students and learning about the Tulsa race massacre. And I started thinking about the massacre, which of course, I just recounted to you is a story of murder, and arson and theft and extremely serious crimes. But underlying all of those crimes is the basic act of trespass, right? Stepping onto somebody else's property, taking somebody's things without permission. And I thought, what would it mean to learn about the doctrine of trespass with understanding of this massacre? What do we think about it differently? What do we think differently about those elements, an intentional intrusion without privilege onto the property of another? And how do we think about the law when we start thinking about the careful consideration that the courts and the jury gave to the Jacques when they had that ability to say no taken away from them. And the consistent failure of all elements of the legal system since 1921, to the present, to acknowledge the harms that were conflicted on the residents of Greenwood. And by all elements, I mean, the sheriff and the police and the National Guard and the mayor at the moment during the massacre, and then thereafter, because they were Black lawyers in Greenwood, and they set up in a tent and they started bringing in clients and bringing lawsuits and seeking insurance damages and seeking remediation for the harms. And those lawsuits were all dismissed. Nobody got any successful claims.
The city of Tulsa did an investigation of what they at the time were calling the riot. And the reason that we don't use that term riot anymore is because they concluded that it was a riot of Black Greenwood, that they had caused it themselves. And therefore there was no need to offer any reparations because they had been the rioters which of course, was just backwards. And so there was attempt in the 90s to seek reparations through the legal system. And there's now currently an ongoing new lawsuit under the theory of nuisance, which is still going forward and might get somewhere but here we are over 100 years later, with the legal system denying again and again that it has a remedy for the harms of these residents. And when we hold it up against, as I said, the careful consideration given to the Jacques and careful consideration that my students usually approve of. That, yes, it was extremely wrong of the mobile home company to drag something across their property when they specifically said no, and the Jacques didn't have to say yes, that seems to be an easy thing to agree to. But then how do we hold that up against the events in Greenwood? What do we learn from that?
Well, we learned a couple things right. We learned that there's no talking about property in the United States without some attention to the racial identity of the person asserting ownership in that property. And we also learn, which I think is an important lesson to learn early in law school, that, you know, remedies are important. It's all very well and good to say you have property. But what's the power of the state to stand behind that? The court in Jacques said, 鈥淧roperty rights are hollow, unless the mobile home company has to pay damages鈥 right? Even if there's not actual damages, there's some kind of compensation. And of course, the promise of property ownership, which the residents of Greenwood thought that they had achieved, became hollow, when the taking of their property was left without any legal remedy. And I think often, especially in the first year of law school, we focus on the doctrines and we forget about the remedy part. And the remedy, of course, is the power of the state to step in and enforce whatever the doctrine is.
AK: This is fascinating. I want to extend the conversation a little bit more on this issue of the construction of race, as tied to property law, and then delve into why it's not surprising that the Tulsa Race Massacre is not part of the property law curriculum. So, first on race, in your paper, you talk about how racial identity is significant to questions of property as illuminated by history. And the Tulsans on Black Wall Street, were some of them just a generation removed from slavery. And now they have their own property and their own cars and businesses. And property ownership was a big deal. But then in their defense of their property, something backwards happened in the state's enforcement of the law. Can you paint that scene for us and the irony, and the hypocrisy that it reveals?
KS: Again, if we go back to this 1920 moment, and Tulsa itself had gone from being almost a nothing scrap of town on the prairie to being a bustling oil boom city. That's what's happening in Tulsa in the 1920s. That's what happened over the last decade or so, right? Booming population. And the Black Tulsans, they came to Oklahoma in one of two ways. Some of them were actually brought as the enslaved property of Cherokee who were moved from the southeast United States to Oklahoma, bringing their enslaved property with them and that's how some Black Americans came to Oklahoma. An even greater number came after the Civil War as they were seeking to enact their new freedom. And one of the most important parts of the new freedom was the ability to own property.
Black Americans were transformed through the Reconstruction amendments from the objects of property, owned under the laws of chattel slavery, to the subjects of property that they own property themselves, which they had been forbidden to do as enslaved persons.
The Supreme Court has said multiple times that enabling Black Americans to buy and sell property is one aspect of removing what the law calls the badges and incidences of slavery, right? There is a particular special meaning to owning property as a Black American, particularly owning property as a Black American in 1920, where the residents of Tulsa are just one generation removed from slavery and, as best as we know now, at least one of the victims in Greenwood had actually been born in slavery, right? That they had come from being the object of property to now the subject property.
So, the real property that they owned and the personal property that they owned, had those additional layers of meaning beyond what it meant to white Tulsans, right? The fact that they had deeds to their house that they had walked into a store and exchanged money for these goods, was a sign of their full citizenship, and also their equality. So, the eyewitness accounts talk about the looting that occurred and white Tulsans were particularly vigorous in looting the homes of the wealthiest Black Tulsans in Greenwood and carrying out things like the beautiful dresses that the women of the house owned and the Victrola, the new grammar phones. The furniture that they had acquired, and I think about those beautiful dresses. And I think about people that for generations had been dressed only in what was literally known as slave cloth. It was an inferior grade of cloth used only to make clothing for enslaved people. And here they have left that behind, and they have achieved the choice of dressing themselves. And this is what is being stripped away from them. They thought they had property. But when push came to shove, there was no support from the power of the state to allow them to retain that property.
AK: So, property rights are hollow when the legal system does not provide the means to protect them. What can we conclude about the integrity of the legal system?
KS: Right. So, those words that you're quoting Annie are from the Jacques opinion, right? That property rights are hollow, when they're not protected, and that if we don't protect them, the Wisconsin Supreme Court said that we will have destroyed the integrity of the legal system. And again, my students see this very clearly and easily in the Jacques case. The court says, and it seems to be a plausible argument, that if we, the state, don't punish entities, like the mobile home that are blatantly trespassing against the wishes of a property owner, people will be inclined to self help. You know, getting out their guns and defending their property. And that's what we're trying to avoid with a system of laws and courts, right? That we have nonviolent means of resolving disputes and achieving justice. And here we see in Greenwood, that the self help was all going the other way, right? The self help is all in the forms of thieving, and the men who did step forward to defend their property, knowing that they were not going to get any help from the state were shocked, overwhelmed, disarmed and literally interned in camps.
The only way you could get out of these internment camps in Tulsa was to get a white Tulsan to sign a document saying, I testify that this person works for me, and I'm going to keep them confined. And then if you got that passed, you could get free. So, if you were a Black Tulsan for who, for example, there was an architect who could not get out of internment because he worked for himself. So, his friends had to go around and see if they could find out a white ally somewhere in Tulsa who would certify to release these people that two days before were independent property owners who thought that they worked for themselves and did not think that they would the property of white people and these tags, were literally reenacting the propertization 聽of Black Tulsans, with white master and mistress and the Black servant was being recreated in the aftermath of the massacre.
AK: To close, a heavier question. But what is the short answer to what we might learn if property law was taught with knowledge of the Tulsa race massacre, and how this failure to recognize these events and their connection to race has affected the classroom in teaching and learning property law?
KS: At the most basic level, of course, we cannot address injustices we cannot see. We have to see, which is why I say that it is worthwhile going over these painful events, right? We need to we, need to know and we need to see it as part of our job as lawyers because it's part of our job to seek justice.
And more broadly, I think of the massacre as only one, you know, case study in what might be added to a property law classroom. But this one particular example, I think, helps us understand as we're learning what the law is, what property is, what we as lawyers do with that. It helps us understand how the law defines and protects property and that how that happens, how the law operates, not just in the prima facia case, the elements that can be recited but in the real world is not outside of, or in any way separated from, racialized identities, racialized hierarchies of power that exist in the United States. And if we as lawyers can understand that we can better understand how property works in the United States, and then how we want it to work, right? Because that my goal for all of my students is for them to be able to work towards justice.
AK: Thank you so much for taking time to preview and give us a very kindly, thorough, conversation about the issue of trespass, especially with regards through the lens of this event, the Tulsa Race Massacre in Black history.
It's our privilege to have this spotlight on the events of that time, and I'm so glad that there are people bringing this to the fore so that perhaps it can help in the teaching and learning of property law and legal education for the future.
Thanks for joining us on the podcast today.
KS: Thank you very much for inviting me. And if nothing else, I hope this podcast helps your listeners understand something that I tell all of my students, which is property law is not as boring as you think it is.
AK: Dr. Kara Swanson is a professor of law, an affiliate Professor of History at Northeastern University in Boston. In 2021. She was selected for the law and society Association's John Hope Franklin prize, which recognizes exceptional scholarship in the field of race, racism and the law for her essay on race and inventive legal memory.
