Many first-year property classes start with the centuries-old Johnson v. M’Intosh (1823). There, Chief Justice John Marshall declared that the Indians were but occupants on their ancient lands, subject to the Europeans’ ownership, which was founded upon their “discovery” of America. Apart from general musings on the fairness and cogency of this ruling, property professors mostly leave the discussion of Indian land law and how it developed over time for another day and another course.
Professor Shoemaker’s article, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, reveals how Indian land law, despite its complexity, is a brilliant construct for teaching traditional property concepts such as the system of land tenures as well as property’s limits and justifications. It is also well-suited to understanding other doctrinal topics such as the regulatory state, decedents’ estates, and torts.
Why is Indian land law not embraced in the first-year property course? It could be that it is too obscure and too costly to understand and to rationalize. Unlike property law as it applies to non-Indians, landowners in Indian land law do not benefit from the historical presumptions in favor of well-marked interests and rights. Professor Shoemaker reveals that Indian land law imposes not only costs associated with understanding the rules that limit transfers and use of Indian property, but also demoralization costs when those limits do not accord with tribal interests, either societal or economic. She states “[c]omplexity has an obscuring, shadowing effect. Indian land tenure is so complex that it has been difficult to see all the intricacies happening inside.” (P. 544.)
Professor Shoemaker analyzes the complexity of Indian land law under a four-component framework — institutional differentiation, technicality, density, and indeterminacy. First, the system is institutionally differentiated because multiple legal regimes and jurisdictions make up the decision structures. The Indian land system has at least three legal regimes that apply, federal, state, and tribal. Additionally, there are several systems of land tenure: trust property (individual and tribal); fee ownership (by Indians and non-Indians); and “emulsified” (having attributes of both). All have varying degrees of rights and limits on autonomy. And, sometimes all reside within the same reservation and between co-owners.
Second, in Indian land law, technicality in the rules adds to complexity. An ever-growing bureaucracy must approve all transfers, even as to the right of a co-owner to sole possession and as to tribes conveying “fee-like” interest to members.
Third, density of rules also adds complexity. Concepts are defined by and are peculiar to Indian lands, leading to high information costs with the concomitant effects on access to capital.
Finally, the above factors combine in Indian land law to make otherwise basic areas of property law very uncertain. As the degree of uncertainty in the laws increases, so does the difficulty of predicting outcomes.
Professor Shoemaker shows how piecemeal congressional measures over time have not worked to fix the problem, but to exacerbate it. Limits imposed on transfers by devise, measures to define eligible heirs, and measures to define the nature of life estates have failed, largely because the definitions did not accord with intra-tribal relations and were just too cumbersome. Even some well-conceived state initiatives have been frustrated by the need to obtain the Secretary of Interior’s approval. Examples include statutes intended to:  acknowledge tribal rights to implement binding agricultural resource management plans on Indian trust lands;  pass tribal probate codes; and  allow more flexibility in the leasing of tribal trust lands.
In the end, Professor Shoemaker indicts the Indian land law system as “insidious.” It goes against all the received justifications for private property. First, it does not preserve Indian land; under the failed allotment program, Indians lost some fifty million acres of land by transfers to non-Indians. Second, Indian land law also does not facilitate human flourishing; the lack of control under the system discourages economic and personal investment. Third, it is not utilitarian. The non-navigability of the law of trust property results in more than half of trust property sitting idle and unproductive. At the same time, Indians suffer from high rates of poverty and low rates of homeownership; all the while government bureaucracy grows.
In Prof. Shoemaker’s view, the top-down controls cannot be justified by the claimed rationales. Protection against state imposition on Indian lands does not require limits on tribal authority, only against states. The current land tenure system does not constrain fee owners, even those residing on reservations, because of the different treatment of fee property as opposed to trust property. Nor are limits on tribal authority necessary to protect non-Indian landowners. That could be done by conferring rights on the non-Indians. This leaves the only rationale to be one premised on racism, “the trust status itself being imposed based on the federally determined needs of the then-deemed ‘incompetent’ Indian allottees.” (P. 544.)
In Professor Shoemaker’s assessment, there must be a “gradual cascade of bottom-up transformative steps” to reset the system dynamics, including functional co-ownership schemes, active leasing rights, and liberalizing trust transfers, with “opportunities for meaningful grassroots experimentation and norm-setting around resource use and stewardship.” (Pp. 545; 492.) In other words, there must be sovereignty to sovereign nations over their lands.
Whether or not Indian land law is too embedded in the ground for any meaningful change, we would do well to study the subject, not simply to champion the cause of the Indian if we choose, but also to see what non-Indian land law could be without the foundational limits that protect autonomy and ownership.