Land Tenure Complications and Development Challenges on Indian Reservations

Ezra Rosser

This is both a good and a bad moment to be working at the intersection of property law and Indian law. Positively, there are a number of scholars exploring this intersection, showing how the rights of Indians should influence our understanding of property and how property law impacts tribes.

Professors Kristen Carpenter, Sonia Katyal, and Angela Riley have done important work on the significance of Indians’ collective rights and identity when it comes to intellectual property.¹ Professor Elizabeth Kronk Warner has become her own publishing house when it comes to climate change and tribal land.² And Professor Alex Skibine has argued that federal control over Indian land must be diminished.³ Most law students begin their study of property with Indian law,⁴ and several states now even include Indian law on their bar exams.⁵

But it is also a bad moment: many reservations continue to be mired in poverty, marked by underdevelopment that can be traced in part to problems in how reservation land is governed. The self-determination era has reached maturity, yet an “Indian problem” remains when it comes to economic growth. As popular and political awareness of the association between reservation poverty and trust land grows, tribes face the prospect that reactionary thinking will once again threaten the tribal land base.⁶

Jessica Shoemaker’s recent article, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, does a great job detailing and explaining the web of rules and overlapping governance structures that contribute to the underdevelopment of Indian land. Although Complexity’s Shadow draws upon property theory and the work of scholars interested in legal complexity, the real strength of the piece is just how grounded it is in reservation land restrictions.

An almost impenetrable maze of federal, state, and tribal rules governs how land can be used on reservations, limiting the ability of tribal members and non-Indian owners to get permissions or to use their land productively. Reservation land can fall in one or more boxes, each with its own set of regulations: trust land, fee land, land owned by Indians, non-Indian-owned land, land with fractionated ownership, leased land, and so on.

Indeed, the number of ways land can be categorized can approach the absurd: not only might land within a reservation be subject to the authority of a neighboring non-Indian government,⁷ which is somewhat akin to land in Iowa being subject to the land law of Nebraska, but there is even a category for structures that pass intestate, though the land does not pass, to the surviving non-Indian spouse of a deceased tribal member. (Pp. 42-43.) By paying careful attention to the details of these categories, Shoemaker impresses on the reader both her command of these regulations and the overarching complexity of this area of law.

Complexity’s Shadow should become, along with Judith Royster’s earlier article, The Legacy of Allotment, one of the go-to sources for scholars interested in the problems of fractionated reservation land. But besides being an article destined to be cited in many footnotes, Complexity’s Shadow should also interest property scholars who ordinarily consider Indian property rights only in passing.

On the one hand, the problems in the Indian land tenure system demonstrate the paralyzing effects a web of rules and regulations can have in a way that accords nicely with many of the concerns that animate the work of information theorists.

On the other hand, by showing the different ways that trust land, fee land, and allotted land can be treated based on a whole array of factors, the article highlights both the ubiquity of governance property and the complications inherent in property law that progressive scholars tend to emphasize.⁸

Few groups have as many assumptions made about their use of land and have had as many different property regimes imposed upon them as American Indians. As the late Vine Deloria Jr. observed, “continual experimentation with property rights” by Congress is standard practice when it comes to Indian land.⁹ Simple calls—such as those championed by conservative think tanks—to convert land held in trust to individually owned fee land raise the possibility that policies similar to those of the allotment era will once again be imposed and tribes will once again suffer significant land loss.

Shoemaker’s observations of Indian poverty and land tenure complexity are much more nuanced than the kneejerk—make them like us—position of many non-Indians. At the very end of the article, Shoemaker switches from focusing on detailing the nature of top-down land use controls to calling for gradual change based on local experimentation.

Though Shoemaker largely leaves to future scholars and local communities the work of showing what approaches can succeed in freeing reservation land from its current unworkable complexity, Complexity’s Shadow provides a great foundation for such work, which is crucial if Indian nations are to thrive. While it is tempting to see issues of Indian law and Indian property law as matters of tangential importance, an understanding of U.S. property law that neglects Indians is incomplete,¹⁰ and the same arguably can be said about the U.S. economy and Indian poverty.

1. See Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L.J. 1022 (2009); Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, 94 Tex. L. Rev. 859 (2016).
2. See, e.g., Elizabeth Kronk Warner, South of South: Examining the International Climate Regime from an Indigenous Perspective, in International Environmental Law: Perspectives from the Global South (2015); Elizabeth Kronk, Application of Environmental Justice to Climate Change-Related Claims Bought by Native Nations, in Tribes, Land, and the Environment (Sarah Krakoff & Ezra Rosser eds., 2012).
3. See Alex T. Skibine, Using the New Equal Protection to Challenge Federal Control over Tribal Lands, 36 Pub. Land & Resources L. Rev. 3 (2015).
4. See, e.g., Jedediah Purdy, Property and Empire: The Law of Imperialism in Johnson v. M’Intosh, 75 Geo. Wash. L. Rev. 329 (2007) (collecting examples of property textbooks that begin with Johnson v. M’Intosh).
5. See Gloria Valencia-Weber & Sherri Nicole Thomas, When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations, 82 N.D. L. Rev. 741 (2006).
6. See, e.g., Naomi Schaeffer Riley, One Way to Help Native Americans: Property Rights, The Atlantic, July 30, 2016; Naomi Schaeffer Riley, The New Trail of Tears: How Washington Is Destroying American Indians (2016).
7. See Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408 (1989).
8. See, e.g., Gregory S. Alexander, Governance Property, 160 U. Penn. L. Rev. 1853 (2012).
9. Imre Sutton, Indian Land Tenure: Bibliographical Essays and a Guide to the Literature 1 (1975) (quoting Vine Deloria).
10. See Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013).