May 3, 2023 – As recent as
February 2023, lawmakers in Wisconsin are seeking to undo what was once a very widespread practice to enforce segregation: racially restrictive covenants in housing and land development.
While these restrictive deeds are currently unenforceable due to the Fair Housing Act of 1968,1 they still remain embedded in historical deed contracts.
Background
In 1948, the U.S. Supreme Court addressed the constitutionality of racially restrictive covenants in private agreements in
Shelley v. Kraemer.2
Wendy Smith is a reference librarian and adjunct associate professor of law at Marquette University Law School in Milwaukee, where she teaches introductory and advanced legal research. She is an active member of the State Bar of Wisconsin as well as a member of the Law Librarians Association of Wisconsin (LLAW). LLAW's Public Relations Committee coordinates regular contributions by its members to
InsideTrack.
The court held that these covenants, standing alone, do not violate the 14th Amendment of the U.S. Constitution; however, enforcement of those covenants through state judicial action violates the Equal Protection Clause of the 14th Amendment.
The Fair Housing Act of 1968 went on to further prohibit race discrimination in sales and rentals of housing, including through the use of restrictive covenants.
What Are Racially Restrictive Covenants?
A deed covenant is a legally enforceable agreement imposed upon the buyer of a property. Racially restrictive covenants are deed restrictions that prohibit the purchase, lease, or occupation of a property by a particular group of people due to their race or ethnicity.
In the U.S., racially restrictive covenants became prevalent in the early 1900s as a mechanism for maintaining racial segregation in predominantly white neighborhoods, partly in response to the migration of Black people from the South and into Northeast, Midwest, and West regions.3
A racially restrictive covenant from this time period might have read:
“.. . hereafter no part of said property or any portion thereof shall be. .. occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property. .. against occupancy as owners or tenants of any portion of said property for resident or other purposes by people of the Negro or Mongolian race.”4
By 1940, racially restrictive covenants were widespread, including here in Wisconsin. The following language appears in a 1947 deed for property in Dane County:
Similar language appears in a 1946 deed for property in Milwaukee County, carving out an exception for nonwhite domestic servants:
Researching and Locating Racially Restrictive Covenants
Interested in learning whether a Wisconsin property was subject to a racially restrictive covenant? The following resources will help.
Organizations and Projects
Projects in Wisconsin, Minnesota, Illinois, and other states endeavor to review historical deeds to identify racially restrictive covenants, digitize the documents, and visualize these covenants in interactive maps. These projects can be a helpful first step in researching deeds in your area.
U.W.-Milwaukee’s
Mapping Racism and Resistance in Milwaukee County is run by Dr. Anne Bonds and Dr. Derek Handley, both professors at U.W.-Milwaukee.
This ongoing project aims to comprehensively document and map all racial covenants in Milwaukee County. Volunteers with the project are reviewing over 1.7 million digitized images from deeds executed between 1910 and 1960.
Dane County’s
Mapping Prejudice Project makes available interactive maps of properties containing racially restrictive covenants with links to digitized deeds. The project has reviewed documents from the Register of Deeds Office through 1950, with additional review ongoing for years 1951-68.
The
Chicago Covenants project has located approximately 1,000 racial covenants covering 100,000 parcels of property in the Chicago area. Covenants are visualized on interactive maps and digitized documents are available in an online archive.
The University of Minnesota’s
Mapping Prejudice Project identifies and maps racial covenants in Minnesota and Wisconsin with over 32,000 covenants mapped so far. Explore open access data sets for covenants in Ramsey and Hennepin counties in Minnesota, and select covenants from Milwaukee County.
The
National Covenants Research Coalition is a national coalition for organizations conducting research into racial covenants, including the organizations listed above as well as those covering Michigan, Iowa, Missouri, and elsewhere.
Tips: Researching Historical Deeds in Public Records
The researcher should compile as much information about the property as possible, including address, property tract number, any known names of grantors and grantees, document numbers, and plat book years and page numbers.
A county’s
Register of Deeds (or County Recorder) maintains real estate-related records for properties located within the county.
A
County Tax Assessor may also have information relating to the property. Searching for historical real estate documentation through successive owners may be challenging.
When starting with limited information, begin by searching for records relating to the most recent property owner and follow the property backward in time.
Make notes of owners, dates of conveyance, boundary changes, document numbers, and any other helpful information. Keep in mind that house numbers, street names, and municipal borders may have changed over time.
For each deed that you uncover for the property, review the deed for language restricting the ownership, use, or occupation of the property by class, such as by race, ethnicity, or religion.
For more helpful tips, visit the Library of Congress’ research guide,
How do I research the history of my house?
Consult with your county’s register of deeds for assistance accessing and navigating through digitized or paper records. For counties not listed below, consult your register of deeds, county recorder, or county clerk for assistance in performing deed research.
Tapestry Land Records is an online database of land records used by 39 Wisconsin counties, including Brown, Dane, Milwaukee, and Winnebago. Searching and document viewing/printing is subject to per transaction fees.
Laredo Land Records is an online database of land records used by 40 Wisconsin counties. Laredo is offered by subscription plan pricing for high-volume users of these documents, such as title insurance and other real estate firms.
Dane County Register of Deeds offers online access to real estate documents through Tapestry and Laredo for a fee. From the Register of Deeds website, search documents in the
Neighborhood Search Program, a collection of neighborhood covenants and restrictions (free to search and download, and updated continually with new documents). Historical documents are available for viewing during office hours.
Milwaukee County Register of Deeds offers online access to real estate documents through Tapestry and Laredo for a fee. Complex historical research may be better conducted in-person by appointment at the Register of Deeds Office; appointments are available for research guidance. Requests for real estate documents can also be made via mail for a fee.
Waukesha County Register of Deeds requests may be made in-person, by mail, or through the
Public Access website for documents dating from 1994 to present. Additional
Online Search Tools are available, including the Online Tract Index and Online Subdivision/Cemetery Index (1848-1994). In-person services are by appointment only.
Further Information on Racially Restrictive Covenants
La Risa R. Lynch, Volunteers Will Sift Through Documents that Once Barred Black People from Owning Property In The Milwaukee Area,
Milwaukee Journal Sentinel, Dec. 7, 2022.
Joy Powers and Kobe Brown,
Examining Restrictive Housing Covenants and Racism in Real Estate in Milwaukee County, WUWM, April 27, 2022.
Isiah Holmes,
Lawmakers weigh in as Wauwatosa asks state to undo racial covenants,
Wisconsin Examiner, Feb. 28, 2023.
Cheryl W. Thompson,
et al.,
Racial covenants, a relic of the past, are still on the books across the country, NPR, Nov. 17, 2021.
Remember, Librarians are Always Ready to Help
Many of the resources are available at your local law library. Librarians are ready to help with your estate planning research:
Endnotes
1 Fair Housing Act of 1968, 42 U.S.C. § 3601
et seq.
2
Shelley v. Kraemer, 334 U.S. 1 (1948).
3
What are Covenants?, Mapping Racism & Resistance Project, Univ. of Wis. Milwaukee.
4
Understanding Fair Housing, U.S. Commission on Civil Rights Clearinghouse Publication 42, February 1973.
5 A
scanned image of the deed containing this language is available through the Dane County Mapping Prejudice Project.
6 A scanned image of the deed containing this language is available through Mapping Racism & Resistance Project, Univ. of Wis. Milwaukee, at
sites.uwm.edu/mappingracismresistance/what-are-covenants/.
