Jessica A. Shoemaker*
This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today’s federally imposed reservation property system does much of the same colonizing work that historic Indian land policies—from allotment to removal to termination—did overtly. But now, these inequities are largely overshadowed by the daunting complexity of the whole land tenure structure.
This Article introduces a new taxonomy of complexity in American Indian land tenure and explores in particular how the recent trend of hypercategorizing property and sovereignty interests into ever-more granular and interacting jurisdictional variables has exacerbated development and self-governance challenges in Indian country. This structural complexity serves no adequate purpose for Indian landowners or Indian nations and, instead, creates perverse incentives to grow the federal oversight role. Complexity begets complexity, and this has created a self-perpetuating and inefficient cycle of federal control. Stepping back and reviewing Indian land tenure in its entirety—as a whole complex, dynamic, and ultimately adaptable system—allows the introduction of new, and potentially fruitful, management techniques borrowed from social and ecological sciences. Top-down Indian land reforms have consistently intensified complexity’s costs. This Article explores how emphasizing grassroots experimentation and local flexibility instead can create critical space for more radical, reservation-by-reservation transformations of local property systems into the future.
* Assistant Professor of Law, University of Nebraska College of Law. I appreciate particularly helpful comments on earlier versions of these ideas from Eric Berger, Thomas Geu, Janie Simms Hipp, Richard Moberly, Bryan Newland, Sarah Roubidoux Lawson, Frank Pommersheim, Susan Poser, Kristin T. Ruppel, John Snowden, Jeffrey Evans Stake, Stewart Sterk, Adam Thimmesch, Kevin Washburn, Steve Willborn, and Sandra Zellmer. I am very grateful for opportunities to present and workshop other iterations of this work at events sponsored by the Indigenous Peoples Law and Policy Program at the University of Arizona James E. Rogers College of Law; the Property Law Section of the Association of American Law Schools; the Association for Law, Property, and Society; the American Society of International Law’s Rights of Indigenous Peoples Interest Group Works-In-Progress Conference at Princeton University; and the University of South Dakota School of Law. Mistakes and opinions are mine. Special thanks to my research assistants and, always, to Hazel and Annabel.