Yearly Archives: 2017
Mar 9, 2017 Ezra Rosser
Jessica A. Shoemaker,
Complexity’s Shadow: American Indian Property, Sovereignty, and the Future,
Mich. L. Rev. (forthcoming), available at
SSRN.
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. Professor Elizabeth Kronk Warner has become her own publishing house when it comes to climate change and tribal land. And Professor Alex Skibine has argued that federal control over Indian land must be diminished. Most law students begin their study of property with Indian law, and several states now even include Indian law on their bar exams.
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.
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, 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.
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. 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, and the same arguably can be said about the U.S. economy and Indian poverty.
Feb 8, 2017 Lorna Fox O'Mahony
Research exploring the intersections of law, property, and society through jurisdictional and international lenses has flourished in the last decade in response to a pressing need for analytical insights into the property problems that dominate much of our current political discourse. Debates about access to places and spaces, linked to a concern around “who belongs” in our countries, in our communities, and in public spaces and private places, raise important questions about the role that property plays in enabling exclusion or inclusion, particularly for marginalised “outsiders.”
Against this backdrop, Sarah Keenan’s new book has come along at a crucial moment. It offers an insightful analysis into how property rules prevent marginalised or outsider groups from developing a sense of belonging in places that are dominated by, and governed through, an insider norm.
What I most welcomed in this book is that Keenan offers a new way of thinking through the dilemma of how property can deliver progressive outcomes for marginalised outsiders. Notwithstanding her focus on excluded identities, Keenan remains optimistic about the role that property can play in countering dominant norms that prevent belonging and in supporting the production of new, resistant spaces of belonging through “subversive property” strategies that, over time, re-create places and spaces on their own terms.
Consider, for example, the “traditional” (though contested) case of the mythical squatter outsider who matured, over time, to become a nascent citizen and property owner. The cases that Keenan tackles are both timelier and more challenging, and the book is all the more rewarding as a result.
Keenan engages with a range of methodological approaches, including property theory, critical legal geography, and phenomenology, pursuing a “problem-led” approach to the questions around property’s role in the construction of spaces of belonging, particularly for people who are deliberately constructed as “out of place.” As a socio-legal study, the frame is set not by the law but by the social justice problem. This orientation positions the book as an interesting counterpoint to other works concerned with property inequality and exclusion.
Some property theorists start from the law, constructing their theories on the scaffolding of familiar and well-established categories. Some challenge the assumptions of the canon by starting from the person, particularly the perspective of the marginalised, unpropertied subject. And property scholars in the critical legal geography tradition typically take as their starting point the “site” or place, working to construct legal conceptions of space through which the governance strategies of property law and property politics can be understood.
Subversive Property cuts across subjectivity and place to shine a fresh light on identity, belonging, and property relationships. Drawing on the associations between property and propriety, Keenan considers both what it means to have property and to be properly oriented in space, with a particular focus on how “social properties” – captured in identity criteria such as whiteness, Christianity, and heterosexuality – determine who belongs.
While noting that “property tends to keep things in place, helping the world retain its shape and providing a strong linkage between the past, the present and the future” (P. 7), Keenan focuses on the opportunities for property and propriety to be subverted to reshape spaces of belonging. Using examples that range from case law challenges to Australia’s “Northern Territory Intervention” to queer women asylum seekers, Keenan argues that relations of belonging that do not fit the current conceptual, physical, and social orientation can, through sustained action, be “made to fit” by causing the space around them to adapt and reshape.
This book provides a timely account of the reach and significance of property analyses for legal scholarship both within and beyond the property community. From the familiar jumping-off point of “property as exclusion,” Keenan shines a light on the acute political, social, and personal dimensions of the governance of identity through spatiality, propriety, and belonging, over time.
Within the “progressive property” frame, Keenan locates her approach against recent work concerned with property, responsibility, and social/structural injustice. She finds common ground with approaches that emphasise a model of the property subject that is interconnected rather than discrete. Her approach pays attention not only to property rights but to their spatial effects and to the property subject’s responsibility for their use of resources.
Perhaps inevitably for a project that starts not from the safe harbour of the existing law but from urgent concerns about the role of the law and governance of property relationships in instances of acute social injustice, Keenan argues that:
For property…to operate as an instrument of meaningful political change, it must first be conceptualised in a way that pays attention to how propertied subjects come to be constituted, and the relationship between property and space, rather than just arguing that pre-existing propertied subjects should act with a greater sense of responsibility towards pre-existing social space.
(P. 61-62.)
Keenan’s analysis transcends the right to exclude, on the one hand, and progressive challenges around “inclusion” or “sharing” on the other. She expresses a broader concern with property as a spatially contingent relationship of “belonging” that is not merely dependent on, but capable of, (re)producing particular spaces and times – that, over time, produce the ultimate subversion when communities of resistance change the spaces and places they occupy and become normalised as conventional property.
Keenan’s analysis offers critical political potential for scholars concerned with social justice and inequality. It is a great read, wide-ranging, and deeply theorised but buzzing with real-world examples that demonstrate the potential of her approach to open new lines of action on the pressing property inequality issues of our time.
Jan 9, 2017 Shelby D. Green
The enactment of the Fair Housing Act of 1968 (“FHA”) is a story filled with intrigue — coercion, duplicity, and back-room deals. In The Secret History of the Fair Housing Act, Professor Jonathan Zasloff provides a riveting account of the maneuvers by the various protagonists in that story.
Some fifty years later, the plots and impacts continue to unfold. Starting with President Lyndon Johnson, who had handily pushed through the Civil Rights Act of 1964, even before his landslide election for his full term, Professor Zasloff shows how it took almost every political arrow in Johnson’s quiver to quash opposition to the FHA.
After the enactment of the Voting Rights Act of 1965, the political mood in Congress and the nation had shifted. Even as the Senate and Republican caucuses became more liberal, national attitudes toward civil rights started to sour, largely in reaction to the urban riots in 1966 and 1967. Some objected that fair housing legislation was an unconstitutional expansion of federal power over the states. Some feared that it would “quite literally hit them where they lived.” (P. 264.)
These worries underlie the persistent, yet questionable claims that Congress designed the FHA to mollify southern legislators and appease those opposed to any broadening of civil rights; that it was enacted only because it was without meaning and largely symbolic, toothless in its enforcement anatomy. Indeed, it has been blamed by some for stalling the cause of fair housing by sending “the premature message that the problems had been solved.” (P. 248.)
Professor Zasloff aims to debunk these claims, instead showing that the FHA has muscle. Even though the Department of Housing and Urban Development (“HUD”) was denied the power to bring civil enforcement suits, the Attorney General could, and the FHA conferred upon HUD the power to regulate financial institutions involved in housing as well as issue regulations on the meaning and definitions of the Act, making private litigation easier. That HUD did not always employ these powers in the furtherance of fair housing, even itself committing acts of intentional discrimination in housing funding, was not because the FHA was lacking.
If nothing else, Professor Zasloff maintains, the legislation served to change the behavior of the would-be racist landlord. It changed the social meaning of housing discrimination; it was no longer disloyalty to the white community to rent or sell to blacks, but simply law-abiding behavior. He backs up this assertion with statistics and demographics showing that housing patterns, while not entirely free of segregation, have nonetheless improved since enactment.
Professor Zasloff, however, does not remark on what remains a seemingly intractable problem: cases where an intent to discriminate is not apparent, where housing discrimination occurs in different guises, subtle and camouflaged in ostensibly neutral legislative language, governmental policy, and private practices – such as exclusionary zoning, redlining in lending and casualty insurance, and the refusal to accept housing vouchers.
While the circuit courts had been largely in accord on the question of whether the FHA also covers denial of housing opportunities by disparate impact, it took three certiorari petitions, two of which were dismissed after the cases settled, before the Supreme Court affirmed the disparate impact theory in Texas Dep’t of Housing and Community Affairs v. The Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). In doing so, the Court looked to the legislative history to discern the broad purposes of the FHA — “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601.
As with the Civil Rights Act of 1866, the FHA was passed pursuant to congressional power under the Thirteenth Amendment to eliminate the badges and incidents of slavery. In construing the former statute in the same year the FHA was enacted, the Supreme Court declared that “[w]hen racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.” Jones v. Mayer Co., 392 U.S. 409, 442-43 (1968). Still, it was not until 2013 that HUD issued regulations on the disparate impact theory. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard. 24 C.F.R. § 100.500.
But how much of the delays by HUD and debate about the alternative theory for combatting discrimination by proving disparate impact – adopted by the Court in 2015 as informed by an understanding of the FHA as a broad-purpose statute – might have been avoided if the “secret history” that Professor Zasloff reveals had been known earlier? Might the courts have acted differently if they had studied the seemingly relentless obstructive maneuvers, first aimed at watering down Johnson’s proposed bill, then by blocking a vote altogether through filibuster?
Would knowledge that Senate Minority Leader Everett Dirksen’s deciding vote for cloture was in surrender to Chicago Mayor Richard Daley, who contrived to run a strong opponent against Dirksen for his Senate seat, help us to appreciate the importance of the FHA? Would knowledge of how the two exceptions (“Mrs. Murphy” renting rooms in her boarding house and owners selling their homes without use of a broker) came to be written into the act have informed the post-enactment interpretation of its breadth? In fact, Professor Zasloff recounts, at one point, as a ploy, Senator Howard H. Baker, Jr. proposed an amendment to exempt all single-family homes from the purview of the Act. If passed, that amendment would have rendered the law virtually meaningless. That it failed shows that the Senators were determined to enact legislation that had teeth. In the end, the FHA passed the Senate by seventy-one to twenty.
Even as Professor Zasloff believes that understanding the secret history of the FHA should force us to look for other causes of segregated housing patterns in the United States, it also remains unknown whether the courts would have taken greater liberties in the name of interpretation if they had been aware of the FHA’s contentious origins.
Recognizing the perhaps subtle difference between legislative history (committee reports and comments made at hearings) and the history of the legislation (the back-room maneuverings), the story of the enactment of the FHA is yet illuminating, helping either to orient or to shore up our thinking on the importance of fair housing. The secret history of the FHA should prompt us to acknowledge that any fault in achieving housing fairness does not lie in the Act.
