The rights of aliens to own real property in the United States are not absolute nor are they protected by the Constitution. Since 1776 American courts and legislatures have confronted this issue.
The first Supreme Court case to grapple with alien rights to realty was Fairfax's Devisee v. Hunter's Lessee (1813). Denny Fairfax, a British citizen, inherited Virginia land. During the Revolutionary War, Virginia wished to prevent enemy aliens from gaining rights to real property, and it conveyed Fairfax's inheritance to a Virginia citizen, David Hunter. Although the Supreme Court upheld Fairfax's right to inherit the land, it did so only because Virginia had not correctly followed escheat procedures. If Virginia had drafted its statute correctly, it could have denied Fairfax's claim. This narrow holding allowed state legislatures and Congress to restrict alien rights.
Many states restricted the ability of aliens to own land. Some required evidence of prospective American citizenship; others limited the amount of property. Most of these restrictions occurred from 1850 to 1920 in the American West. States and territories prohibited Chinese and Japanese from owning farm and mineral lands as a means of discouraging Asian immigration.
The federal government also restricted aliens. In 1887 Congress passed a statute preventing future aliens from owning or leasing real estate in federal territories. Mineral lands and timberlands were also carefully controlled.
Challenges to legislation restricting alien land ownership have generally failed. Courts have upheld the right of legislatures to restrict alien rights to property. Most of these restrictions have been repealed, but they can be reinstituted at any time. Since the terrorist attacks of 11 September 2001, these issues have been revisited primarily by the federal government rather than the states.
See also Alienage and Naturalization; Property Rights.
— John R. Wunder
