• The 2017 U.S. Agricultural Census compared farmland owned and operated, not simply owned, by white and black farmers.
• The number of children Freeman had with his second wife, Rebecca, was eight, not 10.
• Ownership of Freeman’s property was not transferred to heirs when Rebecca died. In fact, he used a trust before he died to divide his property among his heirs.
• The partition sale of the Freeman estate was in 2016, not 2018, and it included 360 acres of the original 1,000, not 30 acres of the original 99.
• The story omitted key details that affect understanding of ownership of the land. Melinda J.G. Hyman says “Jr.” and “Sr.” were left off the names of father and son on documents, and the land was mistakenly combined under Rebecca’s name, meaning some descendants did not receive proper ownership. After requesting a summary of the property, Hyman says, she found her great-aunt, Pinkie Freeman Logan, was the rightful heir to hundreds of acres, but they were not properly transferred to her. In 2016, Hyman says, 360 acres of the original 1,000 were auctioned off after a lengthy court battle, a decision she says she and some other family members dispute.
• The article omitted Hyman’s statement that actions by law firm Bagwell & Bagwell constitute apparent conflicts of interest and omitted firm owner George H. Bagwell’s response denying that allegation.
• A description by agricultural lawyer Jillian Hishaw of laws governing who inherits property when a landowner dies was a reference to the laws in most states, not more than 20 states. She was also generally describing these laws, not referring to Virginia law.
• A study the article said compared the prevalence of estate planning by older white and older black Americans was published in the Journal of Palliative Medicine, not the National Library of Medicine, and was about possession of advance health directives, not estate planning.
• Tashi Terry said, “Welcome to Belle Terry Lane,” not “Welcome to Belle Terry Farm.” The property is named Terry Farm.
• Aubrey Terry did not buy 170 acres with his siblings in 1963; his parents bought the 150-acre property in 1961.
• The eldest Terry brother died in 2011, not 2015.
• The article omitted Tashi Terry’s account of some incidents that led to a lawsuit seeking a partition sale of her family’s farm and her allegations against Bagwell & Bagwell, which the firm denies.
• A law proposed to protect heirs from losing land in partition sales is called the Uniform Partition of Heirs Property Act, not the Partition of Heirs Property Act. “Tenants in common” are not solely defined as those living on a property; they are all those who own a share in the property. The act would not require heirs living on a property to come to an agreement before it can be sold, but would instead provide several other protections.
In Halifax County, Va., about 200 miles southwest of Washington, vibrant green hills bounce out of the earth, and muscular, dark brown cattle rest in meadows alongside farmhouses old and new. Creeks and rivers jut through the landscape like stretched yarn, mixing with soil under crisscrossing tree branches.
This is Virginia's agricultural belt, far from metropolitan Alexandria or Arlington in the northern part of the state. Agriculture is the largest private industry in Virginia, providing the economy with $70 billion annually and employing more than 300,000 people across 44,000 farms. Here, fertile soil yields crops of tobacco, corn, grapes and peanuts, and sustains livestock for small family farms as well as sprawling industrial ones.
Melinda J.G. Hyman and William Palmer III remember visiting their great-great-grandfather’s small farm here when they were children. “He had orchards of pear and apple trees and some cattle,” Palmer remembers. Emanuel Freeman Sr. acquired the 1,000 acres of land after the Civil War, building a modest life out of the few liberties the country afforded black people at the time. Freeman married Elsie Barksdale, had 10 children and built a small, two-story house. Like many black families in Virginia at the time, the Freemans lived off their land and hoped to pass it down to their children and their children’s children, a sanctuary of hope and belonging for generations to come.
But while Freeman could nurture the ecosystem on his acreage, he could not control the forces that governed the country during Reconstruction. According to Palmer and Hyman, while in Halifax one day, one of Freeman’s descendants, Johnny, spoke with a white woman, drawing the ire of white locals, including the Ku Klux Klan. When a crowd gathered at the Freeman home where Johnny had fled, gunfire was exchanged, and one family member’s home was set ablaze. Barksdale and other family members relocated to a small cabin on the property and hid until morning.
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It’s a story that Hyman and Palmer keep in their minds as evidence of the challenges black farmers have long faced in their fight for land retention. “I feel like it’s my fight now to stand my ground and keep this land,” says Hyman, administrator of the Freeman estate, even though it is no longer actively used for farming. They and other descendants of Freeman and Barksdale have been fighting a decades-long legal battle to preserve their ownership, a fight that is all too familiar to many black farming families.
Land ownership in America, a precarious notion for both the colonists and the enslaved, took on new meaning during Reconstruction. With hope and the promise of 40 acres of Confederate land, abandoned rice fields stretching across islands from Charleston to Florida in an order written by Gen. William T. Sherman, black families settled in the South. But the promise never came to fruition, and former slave owners were given back their lands, forcing black families into sharecropping. Some were able to save enough money to purchase their own land but others ended up owing money to their former owners. By 1910, black farmers operated 212,972 farms in America, but, like Freeman, they found land ownership didn’t negate being black in the Jim Crow South.
“There was a severe backlash to that land acquisition,” says Leah Penniman, author of “Farming While Black: Soul Fire Farm’s Practical Guide to Liberation on the Land” and founder of Soul Fire Farm in Upstate New York. “There was burning of homes, lynchings . . . People were literally driven off of the land.”
Many of those farmers’ descendants are now scrambling to prove and retain ownership, a complicated task thanks to a legal loophole that allows distant relatives and developers to obtain rights to lands that have been in families for generations.
Losing land at a higher rate
According to the 2017 U.S. Agricultural Census, the number of black farmers has increased to 45,508, a fraction of the 3.2 million white farmers in the same report. Yet black owner-operators are losing farmland at a higher rate than their white counterparts. Since 2012, about 3 percent of farmland owned and operated by African Americans has been lost, compared to 0.3 percent of farmland owned and operated by whites.
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The loss has been particularly severe in the South, where paperwork on black families is thin and wills infrequent due to generational distrust of the legal system. Jillian Hishaw, an agricultural lawyer and founder of Family Agriculture Resource Management Services
, works with minority farmers in the Southeast to help protect their lands, connecting families with lawyers and helping them navigate real estate law, raise funds for legal fees and discover tax breaks. “Oftentimes, these cases are long and obtuse and require a lot of time,” she says.
Unraveling complex agricultural law also uncovers harsh histories. “I’ve worked with clients where the deed for their land was in the family’s slave holder’s name,” Hishaw says. She and the family had to contact the slave owner’s descendants and ask them to sign the deed over to the black family that had lived there for generations. Making it even trickier to prove ownership is the fact that many black families’ documents use nicknames instead of legal names — or sometimes no names at all.
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Hyman found out firsthand how discrepancies in court documents can leave land owners vulnerable. In a wire shopping cart, she transports historical records, deeds and letters sent to county and state treasurers, as well as Congress and the Obama administration. The cart also contains records of the property taxes she has paid, but those payments are missing from court documents. She says she learned that Freeman remarried after Barksdale died and had eight more children with his second wife, Rebecca. He died in 1925 without a will but had used a trust before he died to divide land ownership among his sons from his first marriage, including Emanuel Freeman Jr., and children with Rebecca.
But “Jr.” and “Sr.” were left off the names of father and son on documents, Hyman says, and the land was mistakenly combined under Rebecca’s name, meaning some descendants did not receive proper ownership. After requesting a summary of the property, Hyman says, she found her great-aunt, Pinkie Freeman Logan, was the rightful heir to hundreds of acres, but they were not properly transferred to her. In 2016, Hyman says, 360 acres of the original 1,000 were auctioned off in a partition sale after a lengthy court battle, a decision she says she and some other family members dispute. Hyman turned to the Internet for help and found an article about Hishaw. “As I looked into it, I realized that there were a lot more families this was happening to,” she says.
Hishaw, who connected with Hyman more than a year ago, said the case resembled her own family’s story. Hishaw’s grandparents owned a farm in Oklahoma for which they paid a local attorney to make yearly tax payments, but she says the payments were never sent and the attorney pocketed the money. “We lost our farm in a tax lien sale because they said we hadn’t paid taxes,” she remembers. She wanted to make sure the same didn’t happen to the Freeman family. “It was one of the worst stories that I’d heard.”
In most states, when a landowner dies without a will or other estate planning, their assets, including land, are given to their heirs (a spouse or children), Hishaw says. Over time, 10 heirs can become 100, and any one of them can force a “partition sale” of the whole property. “If one of those heirs sells to a developer, then that developer becomes a partial heir to the land,” Hishaw adds. And a developer can force a sale by appealing to the court and claiming the ownership structure is depressing the land value and use.
Lack of estate planning is not unique to black families, says Thomas Mitchell, professor of law at Texas A&M University and an expert on discrimination in real estate and estate planning law, but it is more prevalent among them. A study published in 2018 in the Research on Aging journal found older whites were more than four times as likely as older African Americans to have engaged in estate planning. The problem is especially acute for black farmers, because access and opportunity have historically been so hard to come by.
“After the Civil War, black people had basically no access to attorneys that would represent them,” Mitchell says. They also weren’t given tools to understand real estate law or create wills. “They didn’t have access to lawyers, business planning, education . . . Estate planning is correlated with education levels.”
From forgotten to wanted
“Welcome to Belle Terry Lane,” Tashi Terry says as she swings a rusted metal gate open for her father, Aubrey Terry, to drive his pickup truck through. The cattle farmer has lived on this property since 1963, when his parents built a house and moved the family onto the 150-acre plot they had bought in 1961. The farm raises cattle to be sold locally and grows greens and squash with plans to open a pumpkin patch this fall. The land is a postcard of sturdy walnut trees poking out of hills like needles in a pin cushion, swaths of Technicolor flowers and the Dan River, which swells and spills into a nearby meadow after heavy rain.
Terry and his siblings have homes on this property and had children who made the grounds and farming equipment their playgrounds. Halifax’s population is a little over 1,300, and the area has seen a spike in interest from real estate developers. “It started a few years ago when I saw people canoeing through the river,” Aubrey Terry says.
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The eldest Terry brother died in 2011, and because he didn’t have a will, his wife, Flora, inherited his part of the estate. “She wanted to sell her portion of the property, and we don’t, so she hired attorneys to work with,” Terry says. In January, while tending to the cattle on the farm, he and his son saw a man on the property. “He said he was an auctioneer and he was here on behalf of the Bagwells,” Terry remembers. After filing a trespassing charge, the Terry family learned that Flora Terry had hired the firm Bagwell & Bagwell in 2016. According to Tashi Terry, the firm for years sent notices about a proposed partition sale to nieces and nephews living in Atlantic City who were listed as heirs, and told them they didn’t have to respond because they were out of state, which meant the sale could go forward without any objections. It also meant the Halifax descendants, for whom Terry says the law firm had incorrect addresses, didn’t get proper notification of the legal proceedings, she said.
Bagwell & Bagwell, she says, “had the correct address for (the cousins), but not for the people who lived down the street from their law firm?” Those nieces and nephews “have nothing to do with the farm at all,” she says. “They’ve never even lived here.” In addition to using incorrect addresses, Terry says, the firm’s partition sale complaint didn’t include all the heirs and overstated the number of acres until she and her father discovered the errors.
According to Hyman, Bagwell & Bagwell’s actions have constituted apparent conflicts of interest. The firm was appointed special commissioner to oversee the 2016 partition sale of the Freeman estate, she says, while also representing some of the family members involved. She says the firm drafted the will of a descendant, then used that same will to support the sale — stripping her family of rights to the land. In 2013, Hyman and Palmer uploaded a video to YouTube stating their case.
George H. Bagwell says allegations of wrongdoing by his firm are “total, absolute crap” and family members seeking partition sales are merely exercising their rights. He said there is no conflict of interest between representing a plaintiff in a partition sale and holding the position of special commissioner overseeing it. The commissioner’s job is to get the highest price possible for the property, he says, and divide it according to the court-ordered shares. “There’s no way to have any favoritism,” he says. “The shares are the shares.”
As for the allegation about using one descendant’s will to support the partition sale, Bagwell says any heir is free to leave property to anyone. “It doesn’t do anything else to anyone’s share,” he says.
In many rural areas, once-affordable acreage is considered prime real estate, Mitchell says. That’s also a familiar story for many black families who settled where they could, finding shelter and safety in the communities they built, only to be pushed out a generation or two later.
Bagwell says he understands why some family members want such sales. “This is one of the most depressed areas in Virginia,” he says, noting that neither the Freeman nor Terry property meets the requirements of commercial development. He grew up in the county in the 1960s, when the area was mostly tobacco farms, and remembers when the passage of the North American Free Trade Agreement in 1994 led businesses out of the county. Industry and opportunities fled to other parts of the state, and families followed.
While most lawyers in the area used to do partition sales, he says, now most don’t because it’s too hard. “It gets so that when you have four, five, six people, no one wants to keep the houses up or the barn, but they might still pay the taxes,” he says.
He says that when contacting families about sales, the wrong addresses may come up because there can be dozens of people who can claim ownership. “It’s almost impossible to get a correct address for everyone in there, and sometimes you get ’em all right and sometimes you don’t,” he says. He does concede who is ultimately affected. “There’s a whole lot of black families in that position.”
The Agriculture Improvement Act of 2018, also known as the Farm Bill, included an amendment designed to help solve multiple claims of ownership and provide access to federal funds for farming. The amendment, co-sponsored by Sen. Doug Jones (D-Ala.), provides owners with a “farm number” to use when applying for funds. “With a farm number, heirs can access resources and support from federal programs run by USDA and other agencies, like FEMA,” Jones says. He says he learned about heirs’ land loss and how it impacts black communities after farming advocacy groups reached out to his team. He hopes farm numbers “will help address one facet of this issue” by giving heirs a way to prove ownership.
Mitchell is also working with lawmakers to introduce the
Uniform Partition of Heirs Property Act, most recently passed by the New York legislature and introduced in 10 other legislatures, including Virginia’s. According to Mitchell, the act would provide several protections for families in danger of losing inherited land, including giving heirs right of first refusal when another heir wants to sell their part of the property; requiring the court in some cases to consider a property’s ancestral, cultural or historic value; and requiring that the property be sold on the open market rather than at auction. The goal is to help black families retain the asset of their families’ land, Mitchell says. “Stripping people of their real estate is stripping them of their wealth,” he says.
Penniman and groups such as the Southeastern African American Farmers’ Organic Network and the Black Family Land Trust
are also working to help black, Latino and indigenous farmers secure ownership of land and encourage new generations of farmers. “Ninety-eight percent of rural land belongs to white people, and that’s so imbalanced,” Penniman says. “Land is the scene of the crime, but she wasn’t the criminal.”
While there has been a substantial loss of land, Mitchell says, there is still room for cautious optimism about preserving what’s left. “It’s an incredible and remarkable history that African Americans acquired 16 million acres of land,” he says. “I focus on what happened after that.”
Wilson is a New York-based food writer and host of the podcast “A Hungry Society.”
Staff writer Tim Carman contributed to the updated, corrected version of this article.
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