Abstract

Excerpted From: Karen “Kara” Consalo, If Not Here, Then Where? The Case for Land Reparations in Eatonville, Florida, 34 Southern California Review of Law & Social Justice 171 (Spring, 2025) (242 Footnotes) (Full Document Requested)

Often referred to as the “American Dream,” real property ownership represents economic success, social standing, and security in America. Yet gaining and securing property rights has historically been a problem for many Black Americans. Theft and conversion of real estate has occurred in Black communities at a disproportionate rate to other groups, particularly in Southern and rural states. In many instances, such theft or conversion of land was accomplished with the approval, and even aid, of the judicial system.

There is ample contemporary literature describing the concerning extent of the loss of Black land ownership during the 20th century. In some cases, land loss resulted from racial violence, which killed the property owner, destroyed improvements on the land, or forced the owners to evacuate and abandon the land to avoid such future violence. However, a less publicized form of land loss, often targeting Black landowners, was used by the judicial system to employ technically legal but abusive tactics to seize land from unwilling sellers. Such tactics included tax sales, foreclosures, adverse possession actions, eminent domain actions, intestacy dispossession, partitions, and ordered sales. While much research on this topic focuses on loss of family farms in rural areas, the dispossession of Black ownership of urban lands also poses long-term consequences and acutely felt losses within the local community.

Black landownership did not become commonplace in the American South until the Civil War. During the War, both Congress and military leaders adopted sweeping measures to create pathways to land ownership for newly freed men in Confederate states. In 1861, Congress enacted the First Confiscation Act, which authorized the Executive branch to seize any property which had been used to aid, abet, or promote insurrection. The same Act also created an avenue for the freedom of certain slaves, whereby any person found to be forcing an enslaved persons to assist in the insurrection would “forfeit his claim to such labor.” For the Radical Republicans in Congress, the goal of this Act was two-fold: (1) to create an avenue to free enslaved persons, who were at that time still legally considered property; and (2) to create a foundation for the redistribution of land from slave owners to the formerly enslaved men, thereby creating the opportunity to build wealth and security. However, the terms of the Act were more symbolic than effective, and it lacked any enforcement provisions.

In 1862, Congress passed a more strongly worded Confiscation Act through which Congress imposed a duty on the President to ensure seizure of all “estate and property” of persons engaged in treason against the United States. This Second Confiscation Act granted federal officers the legal ability to free any enslaved persons in the Confederacy and to halt any action to return former slaves to their prior owners, as well as opened the door to military service to Black soldiers. With regard to seized real property, the Second Confiscation Act created a legal process through the court system whereby such lands could be conveyed, and deeds could be recorded, in order to ensure “good and valid titles thereto” to new owners. Again, the goal of this Act was to redistribute former Confederate lands, and therefore wealth, from slave owners to the freed men.

On New Year's Day of 1863, President Lincoln issued the Emancipation Proclamation, which freed all slaves. This proclamation was cause for rejoicing. Yet it also created a practical problem for the federal government-- specifically the military--on how to ensure food, shelter, and income for thousands of newly freed citizens. Thus, in 1863 and 1864, Congress enacted two more legislative efforts to redistribute property in the South, known as the ““Captured and Abandoned Property Acts,” which further expanded the power of the Secretary of the Treasury to seize any abandoned lands in Confederate states and convert such lands to public use or sell the lands “within the loyal States.” As with the Confiscation Acts, the Captured and Abandoned Property Acts were designed to foster land redistribution from southern plantation owners who had prospered from slavery to the newly freed men who had no wealth or property due to their prior enslavement. In addition to such societal goals, these Acts were intended to address the pressing need for freedmen and their families to obtain shelter and a means to cultivate food.

While these legislative attempts at land redistribution were made in the halls of Congress, military leaders, including General William Sherman, were marching through liberated states, witnessing the daily needs of freed men and women. In 1865, after his march through Georgia, Sherman met with twenty leaders of the freedmen community, who explained to him the pressing need for lands for former slaves to be able to homestead and cultivate crops. Sherman thereafter issued Special Field Order No. 15, which “reserved and set apart for the settlement of the negroes now made free by the acts of war and the [Emancipation] proclamation of the President of the United States.” Upon these lands, “no White person whatever, [exempting military personnel on duty] will be permitted to reside; and the sole and exclusive management of affairs will be left to the freed people themselves [subject to federal laws].” These lands included “the islands from Charleston, south, the abandoned rice fields along the rivers for thirty miles back from the sea, and the country boarding the St. Johns [R]iver, Florida.” Upon such designated lands, freemen could settle and homestead up to forty acres of agricultural land. Sherman fashioned these individual grants of land as “licenses,” over which no other persons “will be entitled to claim any right to land or property.” Significantly, the Field Order included provisions for issuance of written “possessory titles,” which would include legal descriptions, provisions for assurance of clear title, and approval by the President. In addition to such written legal assurances, these homesteads were protected by the military might of a conquering army.

Recognizing the many hurdles newly freed citizens would have to purchase, work, protect, and profit from newly acquired real property, in 1865, Congress established the Bureau of Refugees, Freedmen, and Abandoned Lands (commonly referred to as the Freedmen's Bureau), which was housed under the War Department. The Freedmen's Bureau was empowered with “supervision and management of all abandoned lands [in Confederate states], and the control of all subjects relating to refugees and freedmen.” It was both authorized and encouraged to create avenues to lease or purchase real property to “every male citizen, whether refugee or freedman.”

To guide the Freedmen's Bureau in its tasks, in 1866, Congress passed the Southern Homestead Act. This law directed the Bureau to dispose of “all public lands in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida,” and in so doing, make “no distinction or discrimination ... on account of race or color.” Unlike the provisions of General Sherman's Field Order No. 15, the Freedmen's Bureau was not empowered to summarily give away title to lands within its control.

The Act allowed tenants to lease the public lands for five years at a controlled rate. It further provided that after five years of such a lease and proven settlement or cultivation of the land, the tenant (or his widow or heirs) could purchase a “patent” over such land at a price of $5 or $10. Congressional intent was to allow newly freed citizens to settle and cultivate homestead lands while assuring clear legal title to the same. Though less generous than Field Order 15, the Bureau's ability to sell any abandoned lands throughout the former Confederacy had potential to vastly shift land ownership beyond Sherman's geographically-limited field order, therefore shifting power and wealth in the South. It would have broken large plantation holdings into smaller farms for purchase by freed Blacks and poor Whites who had previously lacked any avenue to land ownership.

Unfortunately, changing political winds would lead to disappointed hopes and dreams of the Black homesteaders. When Andrew Johnson assumed the presidency in the wake of President Lincoln's assassination, he reversed a number of executive orders that supported land redistribution and land ownership in Confederate states. Johnson ordered much of the Confederacy's seized and abandoned lands returned to the former owners, even to the extent of disposing the Black homesteader of the lands that they had just settled into. Of the initial 800,000 to 900,000 acres of “public lands” seized from Confederate owners and leased by the Bureau to freedmen in 1865, only 215,000 acres remained in the Bureau's control by 1868, with the rest returned to pre-war owners. Due to the possessory title offered by General Sherman, the land transfers affected by Special Field Order 15 were protected from President Johnson's reversals. However, when Reconstruction officially ended in 1877, there was no military support for the Black landowners who remained in possession of and were entitled to their property. Without military protection for these settlors, much of the land was violently reappropriated by White southerners.

In line with earlier efforts by General Sherman to create land rights and communities for newly freed citizens, some politicians of the time continued to advocate for the creation of Black settlements in Florida, Georgia, South Carolina, and Texas. Florida was perceived as an especially prime location, due to its low population and abundance of unsettled and publicly-owned lands. However, the federal government never seriously pursued such settlements, and by the late 1800s, freedmen, women, and their families were left to their own devices to find land upon which to build their homes and create communities.

[. . .]

The Town of Eatonville has a rich and extensive history. Part of this community's success was due to the Hungerford School, which brought students, families, economic growth, and pride to the town. At a time in American history when the legal system was unavailable to many Black Americans, Edward Hungerford took pains to ensure that lands donated for the Hungerford School would be secured through the ages by a trust. Unfortunately, since the Ninth Judicial Circuit ordered the sale of the Hungerford School lands in 1951, the Orange County judicial system has repeatedly allowed the School Board to dismantle Hungerford's protections and convert this historic land into its own profit-making endeavors. The conversion of Hungerford School's land, buildings, and inventories to ownership by the Orange County School Board was a loss to the Eatonville community. This loss was exacerbated by the subsequent sale of hundreds of acres of land to large commercial interests. The community's loss has been the School Board's multi-million dollar gain over the last fifty years.

There are only 100 acres of the Hungerford School property left, and they sit in the heart of Eatonville. It is well past time to return this land to those intended to benefit from the Hungerford School legacy.

Reparations are a complex topic and are often charged with history, emotion, and some level of speculation. However, it is impossible to avoid the reality that unjust actions in the American past stripped Black landowners of their rights, title, and heredity in land, and the adverse effects of such land loss have echoed harm through the ages. Providing land reparations to the original owner's successors is the most straightforward and equitable manner to mitigate such harm.

There is an opportunity for the School Board or the Ninth Judicial Circuit to correct the past injustice of the closure of Hungerford School and forfeiture of its land and assets. While Eatonville is just one town in America, it could serve as a nationwide example of how successful land reparation can be used to correct wrongful property losses of the past.

Karen “Kara” Consalo is an Assistant Professor of Law at Florida A&M University College of Law.