10 Sep 2018
Professor Jessica Shoemaker's article, Transforming Property: Reclaiming a Modern Indigenous Land Tenure, has been accepted by the California Law Review. The California Law Review is committed to publishing the most “innovative and insightful legal scholarship.”
In Transforming Property, Shoemaker builds on her prior work on the unique and complex challenges of modern reservation property systems and, for the first time in the literature, opens a new pathway to reclaim tribally driven property regimes within reservation boundaries. This article makes unique contributions to property theory, provides a robust analysis of property system dynamics, and powerfully situates this entire property project in the broader context of indigenous rights.
The research and writing of this article was supported by both a McCollum grant and the Rural Futures Institute at the University of Nebraska.
The abstract is below:
This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation trust property is deeply problematic. It is expensive, bureaucratic, oppressive, and directly linked to persistent poverty in many reservation communities. Yet, for complex reasons, this trust property has proven largely immune from fundamental reform. Today, there seem to be two primary options floated for the future: a “do the best with what we have” approach that largely accepts core problems with the existing trust, perhaps with some minor tinkering focused on efficiency, for the sake of the benefits and security it does provide, or a return to old, already-failed reform strategies focused on simply “liberating” American Indian people with a forced transition to state-based fee-simple property. Both strategies respond, sometimes implicitly, to deep impulses about how property should work, especially in a market economy, but both also neglect sufficient respect for the true potential of more autonomous tribal property regimes.
This Article engages property theory and related work on adaptation and change in complex systems, including property, to make the case for more radical institutional land reform as a realistic alternative choice, even in the complex and multi-layered environment of existing reservations. Property systems are full of dynamic, pluralistic potential, and property powerfully shapes the contours of both human communities and physical landscapes. This Article unearths this existing potential and charts a series of alternative steps, driven primarily by respect for tribal governments’ own actions and choices, to reclaim new, modern versions of indigenous land tenure within reservation spaces.