Jessica Shoemaker has posted “Emulsified Property,” forthcoming in the Pepperdine Law Review.
Here is the abstract:
The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The rights and responsibilities of trust owners are set by federal and tribal law, while fee owners are subject to state or tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This article, however, reveals an even more complicated issue that has thus far gone unaddressed in the literature. This article analyzes for the first time how the modern reservation is not merely a checkerboard of fee and trust parcels situated next to each other. Rather, significant numbers of reservation lands are now jointly owned by co-owners who hold undivided interests in the same property in different tenure types. Thus, many individual tracts now contain a mix of trust and fee ownership interests in the same resource.
These “emulsified” properties are made up of theoretically undivided co-ownership interests; however, the fee and trust co-owners have very different rights to the same property, including vastly different use and possession rights. There is no single over-arching set of legal rules that applies equally to all interests in emulsified properties, nor any single dispute resolution tribunal through which co-owners can negotiate a fair and efficient use of the resource. This article explores for the first time how these emulsified properties are created and analyzes the unique obstacles they create for landowners and for governance. While others have argued for a refocus on tribal property regimes in order to support tribal sovereignty more generally, this emulsified property problem tips the scales and makes more robust tribal property systems, with clear authority to govern all interests in emulsified properties, a critical next step.
The paper is called Extreme Rubber-Stamping: The Fee-to-Trust Process of the Indian Reorganization Act of 1934 (PDF: Extreme Rubber-Stamping). The abstract:
In recognition of the massive loss of Indian territory since the European “discovery” of America, the Indian Reorganization Act of 1934 provides a process whereby Indian tribes can expand their reservations by applying to have additional land placed into trust for their benefit. This process, known as the fee-to-trust process, is the subject of fervent opposition by many affected communities because once taken into trust for a tribe, such land is no longer subject to state and local taxation or zoning, planning, and other regulatory controls. Accordingly, this Comment explores the efficacy of the fee-to-trust process by analyzing the Pacific Region Bureau of Indian Affairs decisions on proposed trust acquisitions from 2001 through 2011. Supported by this data, which shows a 100% acceptance rate, this Comment ultimately concludes that the process is shockingly biased and toothless—merely an exercise in extreme rubber-stamping. Thus, there is great need for comprehensive reform of the fee-to-trust process, including the creation of a meaningful role in the process for affected communities, establishment of clear and specific standards for acceptance of land into trust, and an emphasis on collaborative solutions.
Interesting , if not downright terrible, methodology — looking only at the notices of successful trust applications to conclude that 100 percent of applications are accepted. Wow! Without knowing, I would guess that the Bureau around the country generally doesn’t actually deny many trust acquisition applications, but they surely do not approve 100 percent. The government just sits on them until they become stale, or the tribe withdraws them when it becomes clear the application would never be approved.
Also, the conclusion that no one appeals or objects to trust acquisitions because the process is unfair is a little hysterical. Nearly all non-gaming related acquisitions are non-controversial, on-reservation acquisitions. Why would there be an appeal or objection? The number of pending federal court challenges to gaming-related trust acquisitions also tends to undermine these conclusions.
Even so, the critiques of the trust acquisition process from the point of view of state and local governments reproduced here are important to review.