Transforming Property: Reclaiming Indigenous Land Tenures

Abstract

This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, oppressive, and linked to persistent poverty in many reservation communities. Yet, for complex reasons, trust property has proven largely immune from fundamental reform. Today, there seem to be two primary approaches floated for the future of reservation property. The first is a “do the best with what we have” strategy that largely accepts core problems with trust, perhaps with some minor efficiency-oriented tinkering, for the sake of the benefits and security it does provide. The second is a return to old, already-failed reform strategies focused on “liberating” American Indian people with a forced transition to statebased fee simple property. Both strategies respond, sometimes implicitly, to deep impulses about how property should work, especially in a market economy. But both of these approaches also neglect sufficient respect for the true potential of more autonomous Indigenous property regimes.