Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power

abstract. This Article tells an untold history of the American title registry, a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on the registry’s role in catalyzing property markets, while mostly overlooking the main sources of this property in the American colonies: expropriated lands and enslaved people. This analysis centers the registry’s work of organizing and “proving” land claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands. In this way, registries helped scaffold the colonies’ tenuous but growing political and jurisdictional power. The specific history of the U.S. title registry illustrates a crucial dynamic between property and sovereignty. In America, property and property institutions did not issue from sovereigns with established authority to govern a territory, as in the understanding drawn from European legal traditions. Rather, property institutions, exemplified by the title registry, preceded and ushered in colonial and U.S. sovereign title to Native homelands.

This Article presents new questions about how the legal infrastructure of property furthered European colonists’ conquest and how this progression of conquest on the ground produced the national jurisdiction and real-estate market of today. Leveraging established scholarship on the colonies and deploying original research on county creation, it shows that in the haphazard history culminating in the American title registry, colonists borrowed the English legal forms of the registry and county and remade them into local tools of colonial territorial expansion. The registry and county became key local governmental forms that drew settlers into Native nations’ territories and encouraged them to claim lands by reassuring those settlers that their claims would become real property. The time map of county creation—not of the formation of territories, nor the admission of states, nor the conclusion of treaties—most accurately tracks where the United States grew its jurisdictional power, and when. The United States created counties and registries between its plans to invade and its actual ability to govern lands, before the naming of transitional territories, and often even before obtaining Native cessions to the lands by treaty. In the history of conquest, county creation thus lies in the transition between mere white entitlement and actual title. And as a consequence of this history, counties came to underpin the national jurisdiction, and the local institution of the registry became the common and continuous infrastructure for the entire national real-estate market.

This Article’s history of the title registry underscores the conceptual and practical stakes of redressing the erasure of race from our understanding of legal institutions and development. In particular, this history challenges us to recognize less obvious ways that the legacies of conquest and enslavement survive to structure our landscape and lives. Race works to shape law and legal outcomes in ways that many now recognize, such as by excluding people from institutional protections and benefits and through the predatory risks of formal inclusion. But the registry’s history also illustrates a third phenomenon: the phenomenon of legal innovation spurred by white settlers’ willingness to view racial violence as an economic resource, which introduced new institutions and practices that may appear to be facially “race-neutral” but promote the production of property value through the dehumanizing logic of race. Colonists constructed minimalist registries, which did not authenticate title claims and encouraged their proliferation. In this way, they prioritized the collective goal of building jurisdictional power at the direct expense of Native and Black communities whose lands and people colonists rapaciously claimed as property for that ever-growing market. The result was an institution that continues to privilege the production of property value above all—above protecting individual property interests, and above sustaining homes, communities, and life, in ways that now affect us all.

author. Associate Professor of Law, UCLA Law School. I am grateful to Greg Ablavsky, Molly Brady, Guy-Uriel Charles, Adam Davidson, Dan Farbman, Lee Fennell, Sheila Foster, Dirk Hartog, Sophia Lee, Shaun Ossei-Owusu, Claire Priest, and Laura Weinrib for their generous comments and feedback during the drafting process. This Article also benefited from the helpful engagement of participants at the legal-history workshops at the University of Minnesota Law School, the University of Michigan Law School, and Stanford Law School; the law-faculty workshops at the University of Pennsylvania, UCLA, Georgetown, Michigan State University, Seattle University, Boston College, and Brooklyn Law School; as well as the Culp Colloquium; the East Coast Political Economy Consortium at Georgetown Law; the Law and Inequality Colloquium at the University of Virginia; the University of Chicago’s Public Law Workshop; and Inaugural Colloquium of the Department of Race, Diaspora, and Indigeneity. I thank David Stein, Darryl Li, and Noura Erakat for their constant encouragement, patience, and friendship. This work would simply not have been possible without the research support of Thanh Nguyen, Richard Mobley, and Marianna Yearboro of Georgetown Law Library. I am also indebted to my research assistants Ashley Burke and Radiance Campbell, as well as Laura Hallas, Nathaniel Hay, and the other student editors of the Yale Law Journal. Finally, I wish to express my gratitude to county registers, especially Cheryl Berken of Brown County, WI, and Angie Bates of St. Clair County, IL, who tolerated my calls and provided helpful documents.

The subject was not one that might be expected to rivet the attention of the academic legal community, let alone that of the profession at large.

—C. Dent Bostick on Land Title Registration

The basis for America’s greatness was in the combination of vast resources with institutions which, for all their human faults, were adequate to handle the situation.

—Marion Clawson, Director, Bureau of Land Management 1948-19531

Introduction

For nearly four centuries, title registries have collected information about the two principal axes of ownership of property in America: whatis owned and whoowns it. Like courts, registries are “ground-level” legal institutions.2 They are publicly accessible and publicly maintained at the local level and create the preconditions for the terms of private and public laws that concern property. Registries’ effects are not something we often recognize, perhaps because the records seem to represent an obvious, even natural, activity: storing information about who owns what property in a place. The humble, hardly riveting, clerical institution of the registry is ubiquitous across the 3,141 counties and county equivalents in the United States.3 Despite some minor institutional variations,4 the basic form of registries is remarkably uniform across the country. Title registries constitute a local, public record of voluntarily recorded claims that the government does not verify but simply keeps.5

Though the institution of title registries may seem nondescript, it is undisputed that title registries are indispensable to the construction and ownership of property in land in America. Scholars agree that registries have long furnished a unique source of confidence for a broad range of property transactions, especially purchase, sale, and using property as security for a loan. These repositories are privileged by law as the main mechanism for confirming ownership. James Casner and Barton Leach once called title registries “the pulse beat of the American system of title security,”6 with Leach going as far as to assert that they constitute “the core of our modern land system.”7 No tier of the American real-estate market—that is, transactions for real property, mortgages, or shares in mortgage-backed securities and beyond—could operate without the recording system that holds real property and its related markets together. Unlike historical precedents for property registries, which principally supported taxation, the American title registry’s main function has been to facilitate property markets. Thus, it is little wonder that existing scholarship on American title registries has focused on registries’ impact on private transactions, rather than the public, governmental dimension of their effects.

This Article addresses the public impact of this understudied institution,8 heretofore unrecognized in the existing literature, by revealing that it has supported not only private markets but also “jurisdiction” in the most fundamental sense of the word. That is, it shows how registries underpinned the ability first of the colonies, and then of the United States, to determine or say what the law is on behalf of a collective and give it force in a territory, which is perhaps the defining marker of sovereignty. The first-order fact of jurisdictional power is often taken for granted, but it is distinct from second-order questions about the various kinds of institutions a given society might develop to govern itself effectively and the way that it divides and distributes jurisdictional power among them. The history of title registries indicates that they played an important role in establishing and supporting that fundamental power in American colonies and the United States.

For neither the charters nor European treaties and sales that transferred land rights to Anglo-Americans—often drawn up without seeing or stepping foot on the lands in question—gave colonists actual legal jurisdiction over those lands. It merely gave them an option, vis-à-vis other Europeans, to attempt to transfer jurisdictional power from Native nations to themselves. The rule of European conquest, the so-called “[d]iscovery rule” as articulated by Justice John Marshall, required the English not only to arrive “first”—that is, before other European nations, in non-Europeans’ lands—but also to then take “actual possession” of those lands. This Article focuses on this second step of discovery: not the ideologies that launched the intra-European race to conquer lands, but colonists’ on-the-ground attempts to take control of lands in order to “consummate[]” their title.9 It shows that to effectuate their territorial sovereignty, English colonies and the United States relied on settlement and colonists’ property claims to take possession of lands and, in turn, affirmed these claims through title registries.

Between the discovery right and Anglo-American sovereign jurisdiction—after colonists’ intention to invade but before they consummated their title—the title registry made its appearance across the lands. Its history thus encompasses a history of the mechanics of conquest as well as of American property. Where recent literature on territorial conquest focuses on the United States and the federal role, this account reveals that the site of struggles to take land and build power was local.It further establishes that colonists developed the strategies taken up by the United States to wield the political force of property against Native nations a century later.10 Early colonists, who stood no chance of directly challenging Native sovereign claims to lands in America, established their footholds by making private claims to property instead. The innovation of the American title-registry system became the primary mechanism for organizing and “proving” these claims against competing claims, both individual and collective, within and outside the colony. Further, the institution of the registry, as an act of government that established protocol for affirming private claims for both settlers and Native people, itself constituted an assertion of jurisdiction in ways that underpinned a tenuous colonial sovereignty and helped it grow. In this way, colonial territorial jurisdiction followed and became possible because of individual settlers’ claims to private property as documented in title registries. In a reversal of the classic conception of property as a distribution by the grace of an established sovereign, property in America was the conceptual and material antecedent to colonial sovereignty. Sovereignty in the colonies depended on the creation of private property to come into being.11

Recognizing that colonial U.S. sovereignty did not come into being with Europeans’ intent to conquer but rather entailed a long and fraught struggle to dominate prior sovereigns significantly lengthens the historical timeline during which we understand that Native nations’ sovereignty over their lands was absolute. Further, this Article’s analysis of the registry places its emergence within the larger, racial-legal framework of discovery, which underscores that enslavement was an inextricable part of conquest. As I have highlighted in prior work, the discovery doctrine authorized the seizure of both lands and people based on the premise of a fundamental difference and natural hierarchical relationship between Christian Europeans and non-Christian non-Europeans.12 This belief also translated into colonists’ different treatment of Europeans and non-Europeans with respect to property and sovereignty. Intra-European conquests transferred jurisdiction without affecting private individuals’ property, as when the English took control of New Netherlands in 1664 and left Dutch owners their private holdings.13 By contrast, the English believed they and other Europeans were entitled to strip non-Christian non-Europeans of property and sovereignty, and to seize their lands and their persons.

Colonists’ property innovations involved introducing ostensibly “race-neutral” institutions like the registry. The registry arose in the context of colonial laws that openly provided for different treatment of racial groups and that sanctioned extreme violence against nonwhite and especially enslaved people.14 For centuries, the title registry’s chief function was to validate ownership claims to the two most valuable and significant forms of property that colonists held: lands expropriated from Native nations and enslaved human beings. The story below redresses erasure of conquest and enslavement from the history of American colonial property institutions, though its focus on the development of the registry means that it principally explains the actions of colonists.15 In describing how colonial jurisdictions came into being, this Article also centers colonists’ contests with Native nations for sovereign power and control of land.16 But it is crucial to note that registry records themselves attest to the fact that territorial expansion and the expansion of the slave trade in America occurred interdependently and in tandem. This Article therefore points to three particular ways that the institution impacted Native and Black people, which are generalizable across the vast diversity of experiences, traditions, and responses of these communities: the institution impacted 1) the land loss of Native nations represented by every inch of soil claimed in a registry; 2) the loss of freedom and kin that the enslavement of Native and Black people entailed, insofar as the institution helped to grow the slave trade; and 3) the hazards to which free Native and Black people who attempted to use the registry to document their property were subject, because the design of the institution left their ability to defend property contingent on their privilege and power.

Beyond building upon our understanding of the title registry and property institutions, this Article also illuminates the myriad ways that conquest and enslavement were enacted and imprinted upon our world. It has been less than a century since scholars’ discomfort with the racial violence that gave rise to much of American property law led to the complete expungement of mention of conquest and enslavement from the field. Before that time, major commentators by and large celebrated this history or took it for granted.17 One consequence of this whitewashing has been an artificial separation of the development of American property law from histories of racial violence in America. It seems intuitive, for example, that the militia would be key to the sovereign takeover of a country18—but not property institutions, and least of all, the understated, mundane office of the registry. While scholars fail to recognize the constitutive role of racial violence in shaping property law in America, many also view conquest and enslavement as bygone examples of raw violence and think of their consequences only in terms of direct bodily harm. Colonization and enslavement unquestionably involved such harms and naked subjugation at an untold scale. But their legacy combined world-shattering violence with the technical work of building institutions to support markets and jurisdictions, which remain part of our governance systems. The title registry’s history indicates that, frequently, the bureaucratic infrastructure of conquest and enslavement is also the bureaucratic infrastructure of American property today.

Divorcing our study of the two has hurt our ability to understand either. We must learn to recognize the breadth of ways that race works through law to shape our legal systems and our world—beyond familiar models of different and unequal treatment, to the way race spurs institutional innovations based on dehumanizing logic. Meanwhile, historians who have studied the title registry have unanimously agreed that it was “a distinctly American invention” that introduced a tremendous innovation to the property system,19 but without appreciating the range of its functions and effects. The registry illustrates more than one way that racial hierarchy shapes law and legal outcomes. Most fundamentally, it evolved as a local and public institution to spur the proliferation of claims to property—property specifically produced through expropriation and enslavement. Additionally, however, the specific design of the registry minimized government involvement by neither mandating nor authenticating records, and privileged the proliferation of property claims and market growth above ensuring the integrity or accountability of claims. Consequently, like many other American legal institutions, it exacerbates structural inequality by leaving claimants to rely on their material and social privileges in cases of fraud, disadvantaging those most vulnerable to predation and without resources to enforce their rights in courts.

The registry helps us see the transformative effects of race on law more clearly. As an institution, it escalated racial violence to grow property markets and colonial jurisdictions at the direct expense of Native and Black homes and lives,20 first by building new markets from those homes and lives, and then by exposing those homes and lives to loss and predation. This analysis, above all, highlights the value system, borne of its context, that the structure of the title registry has promoted. This institution, a keystone of the American property system, long relied on racial violence to produce property value and privileges the production of property value above all. That is, it privileges property value above the protection of individual property rights (since it contains no structural safeguards to protect against discrimination and abuse), as well as, more fundamentally, above the stability of people’s homes, communities, and lives. The conceptual and practical stakes of this history of the title registry include understanding the character and the costs of an institution that now underpins the entire national jurisdiction, land system, and real-estate market. They also include learning to recognize indirect and less obvious ways that U.S. legal institutions facilitated racial violence. Some of the legacies of this history inhere in bureaucratic, mundane institutions such as the title registry, which appear to be facially “race-neutral” but carry and perpetuate the dehumanizing racial logic of colonization.

To reveal the public work of the institution, against its historical erasure, this Article proceeds in three Parts. Part I first describes the emergence of the title registry as an important part of the American property system and, second, explains how the title registry came to acquire the consistent features that would characterize it as one continuous institution across multiplying localities in the colonies. Part I draws on existing literature that discusses colonial registries in order to tell a story that centers their role in colonists’ assault on Native sovereignty—a question that prior works have not examined. Section I.A recounts how colonists used property claims to establish their footholds and build political territorial power and how this engrossment of Native nations’ lands also incited the growth of the slave trade. Drawing on the borrowed English legal forms of the registry and county, colonists introduced the American title registry as a way of both organizing their claims to lands and people and asserting governmental authority over intersovereign disputes—helping scaffold colonists’ own jurisdictional power vis-à-visexisting sovereigns. Section I.B explains how the registry’s specific design evolved to help the colonies build this jurisdictional power: how becoming a local and public institution facilitated its popular use and the strategy of expanding through building new townships and counties. Further, by minimizing government involvement in this passive institution, the colonies encouraged the proliferation of market claims at the expense of their integrity. They thereby prioritized the collective goal of jurisdiction building over individual accountability and protection, at the direct expense of Native and Black communities and life.

After explaining the colonial emergence, function, and uniform design of this institution, Part II describes title registries’ subsequent spread across the continent, as the United States, too, relied on the political force of property to build its jurisdictional power at the local level. The first two subsections of Part II analyze the timeline of county creation in the first target region for U.S. expansion outside of the original states and the expansion of U.S. and state sovereignty within the borders of original states. Section II.A shows that, in the Northwest Territory, the United States created counties from unceded lands before the formation of the territories and states to which they would eventually belong. That is, it established local jurisdictions first to affirm property rights, indicating that settlers, with their initial claims to Native nations’ lands, helped the United States convert its discovery claims to those lands into sovereign title. Section II.B emphasizes how the goal of establishing federal and state jurisdictional power continued within the borders identified by original states after the nation’s founding, focusing on the example of Georgia. Georgia created counties to affirm its own sovereignty in lockstep with every Native cession of lands to the United States, until, frustrated with the federal government’s pace of conquest, the state wielded county creation as a tool to finally expel the Cherokee and force federal acquiescence to its agenda. Lastly, Section II.C maps the timing of county creation and the passage of recording acts across the mainland alongside timelines for the establishment of territories and states. It shows that recording remained a fundamental priority for every new territory and state in the Union, providing us with an outline of how registries came to operate in every locality to underpin the national land market. Further, it reveals changing patterns of county creation that indicate growing U.S. confidence in the imminent conquest of the continent and its ability to use counties and county recorders to expand the national territory.

Part III discusses some of the consequences of this history of the title registry for the theory and practice of property and sovereignty. This analysis foregrounds the fact that scholarly and policy approaches to these topics and the system of the registry, insofar as they concern or touch upon the United States and its law, must begin where their story does: with colonial property and Native sovereignty.