Jessica Shoemaker has posted “Transforming Property: Reclaiming Modern Indigenous Land Tenures,” forthcoming in the California Law Review.
Here is the abstract:
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, controlling, 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 options floated for the future: a “do the best with what we have” approach 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, or a return to old, already-failed reform strategies focused on simply “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 also neglect sufficient respect for the true potential of more autonomous indigenous property regimes.
This Article engages property theory and related work on property system change to make the case for more radical institutional land reform as a realistic alternative choice, 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 primarily by respect for tribal governments’ own actions and choices, to reclaim new, modern versions of indigenous land tenures within reservation spaces.