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Transforming Property: Reclaiming Indigenous Land Tenures

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Transforming Property: Reclaiming Indigenous Land Tenures Transforming Property: Reclaiming Indigenous Land Tenures Jessica A. Shoemaker* This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, oppressive, and linked to persistent poverty in many reservation communities. Yet, for complex reasons, trust property has proven largely immune from fundamental reform. Today, there seem to be two primary approaches floated for the future of reservation property. The first is a “do the best with what we have” strategy that largely accepts core problems with trust, perhaps with some minor efficiency-oriented tinkering, for the sake of the benefits and security it does provide. The second is a return to old, already-failed reform strategies focused on “liberating” American Indian people with a forced transition to state- based fee simple property. Both strategies respond, sometimes implicitly, to deep impulses about how property should work, especially in a market economy. But both of these approaches also neglect sufficient respect for the true potential of more autonomous Indigenous property regimes. DOI: https://doi.org/10.15779/Z383R0PT7K Copyright © 2019 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Associate Professor of Law, University of Nebraska College of Law. Thank you especially to Gregory Ablavsky, Lisa Alexander, Bernadette Atuahene, Jennifer Bear Eagle, Eric Berger, Nestor Davidson, Lee Anne Fennell, Josey Foo, Janie Simms Hipp, Jason Larson, Stacy Leeds, Erin Ryan, Joseph Singer, Adam Thimmesch, Kevin Washburn, and Maggie Wittlin for particularly helpful thoughts in conversation and on earlier drafts. I also thank participants in workshops where I presented earlier versions of this work, including events hosted by Texas A&M University School of Law, University of Saskatchewan College of Law, University of Nebraska College of Law, Rural Sociology Society, and the Association of Law, Property, & Society. Thank you to Kelsey Knoer and Kasey Ogle for terrific research assistance. Research funds from a McCollum Grant and the Rural Futures Institute at the University of Nebraska helped support the writing of this Article. Of course, all opinions and mistakes are mine. 1531 1532 CALIFORNIA LAW REVIEW [Vol. 107:1531 This Article engages property theory and related work on adaptation and change in complex systems, like property, to make the case for more radical institutional land reform as a realistic alternative choice. Such an alternative is possible even in the complex and multi-layered environment of existing reservations. Property systems are full of dynamic, pluralistic potential, and property powerfully shapes the contours of both human communities and physical landscapes. This Article unearths this existing potential and charts a series of alternative steps, driven by respect for tribal governments’ own actions and choices, to reclaim new, modern versions of Indigenous land tenures within reservation spaces. Introduction .......................................................................................... 1533 I. The American Indian Land Tenure Challenge .................................. 1540 A. The Power of Property ....................................................... 1542 B. Intentional Designs, Unintentional Results ........................ 1545 1. Economic Effects ......................................................... 1545 2. Unsustainable Fractionation ........................................ 1547 3. Self-Determination Effects .......................................... 1549 a. Property as a Constructive Language .................... 1550 b. Property-Based Limits on Tribal Jurisdiction ....... 1551 II. The Current Land Tenure Trajectory .............................................. 1553 A. Fee Simple Rhetoric and Risks .......................................... 1554 B. The Limits of Modern Trust Reforms ................................ 1558 1. Ownership, Not Sovereignty ........................................ 1562 2. The Consistency Trap .................................................. 1564 3. More Bureaucratic Complexity ................................... 1570 III. Deep Property Dynamics ................................................................ 1572 A. Property’s Limits ............................................................... 1573 1. Standardization ............................................................ 1573 2. Stability ........................................................................ 1576 B. Property’s Potential............................................................ 1578 1. Pluralism ...................................................................... 1578 2. Dynamism .................................................................... 1581 IV. The Process of Property System Change ........................................ 1584 A. Unique Challenges and Reconciliation .............................. 1585 B. The Reform Process ........................................................... 1587 V. Toward New Indigenous Land Tenures ........................................... 1589 A. Creating Flexible Innovation Space ................................... 1591 1. Tribal Steps .................................................................. 1591 a. Stretching and Expanding Tribal Authorities ....... 1592 b. Translating Lessons from Analogous Property Choices.................................................................. 1593 c. Learning from Mistakes ........................................ 1595 2019] TRANSFORMING PROPERTY 1533 2. Federal Reforms ........................................................... 1595 a. Creating More Flexible Innovation Spaces in Current Trust Paradigm ...................................................... 1596 b. Modifying Alienation and Sanctioning New Tenure Forms .................................................................... 1597 c. Tribe-by-Tribe Negotiations ................................. 1598 3. Special Allotment Challenges ...................................... 1599 a. Tribal Redefinition of Co-Ownership ................... 1600 b. New Reservation-Wide Tenures ........................... 1601 B. Other Supportive Strategies ............................................... 1602 1. Nurture Land-Based Social Movements ...................... 1603 2. Reduce Information Costs with Technology ............... 1604 3. Invest in Experimentation ............................................ 1605 4. Extend the Franchise .................................................... 1606 Conclusion ............................................................................................ 1606 “So accustomed are we to concentrating . on the conclusory nature of legal categories that we tend to forget how channeled we are by nothing more than a conceptual structure. There are limits to the movement of our minds, shared boundaries for which there is no better name in legal analysis than ‘concepts’—conclusions that we could question but choose not to, premises for ordered thought and communication. Certainly, analysis of property interests has had limits beyond which we have chosen not to stray.”1 “Creating space is hard work . .”2 INTRODUCTION The future of American Indian land tenure is at a crossroads. Throughout history, the federal government has used the power of property law to control and transform Indigenous Peoples’ lives for colonial ends.3 Today, reservation property systems are still defined by a complex land tenure landscape, including a unique federal trust status that originated in this colonial history and, in many cases, perpetuates colonial hierarchies.4 The federal government continues to act as trustee, holding legal title to more than fifty-six million acres of land owned 1. JOSEPH VINING, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC LAW 24 (1978). 2. Richard Thompson Ford, Law and Borders, 64 ALA. L. REV. 123, 127 (2012). 3. See, e.g., LEONARD A. CARLSON, INDIANS, BUREAUCRATS, AND LAND: THE DAWES ACT AND THE DECLINE OF INDIAN FARMING 80 (1981) (“[Reformers] were convinced that private property by itself would transform the Indians.”). 4. See, e.g., Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101 CALIF. L. REV 107, 132–33 (2013); Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1, 49 (1995). 1534 CALIFORNIA LAW REVIEW [Vol. 107:1531 by both American Indian tribes and individual American Indian citizens.5 This special trust status is notoriously restrictive, expensive to maintain, and highly bureaucratic.6 The overlay of federal land management on nearly every land use decision, including a comprehensive federal restraint on alienation, has impeded economic development on reservations and, more fundamentally, limited the freedom of Indigenous nations to reflect essential land-related values through their own cohesive property definition and regulation.7 Although American Indian tribes are experiencing a powerful self- governance renaissance across numerous domains, many of the most challenging aspects of the federal land tenure system have remained uniquely immune from meaningful institutional reform.8 After all this time, and with all these layers of entrenched property law, it is simply hard
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