This work of legal scholarships represents one piece of a larger, ongoing project related to the process of property system change. In the legal domain, property law theory has increasingly engaged in a robust debate around... [ view full abstract ]
This work of legal scholarships represents one piece of a larger, ongoing project related to the process of property system change. In the legal domain, property law theory has increasingly engaged in a robust debate around the substantive values a private property system can and should achieve, but the question of how private property law might be reformed in order to better to reflect these social values remains unresolved.
This paper focuses specifically on the modern highly-federalized system for American Indian land tenure within Indian country. The current reservation property system is extremely complex and widely regarded as a significant contributor to persistent poverty in many reservation communities. The pervasiveness of federal control over these Indian lands also prevents modern Indian nations from making important self-governance choices, including manifesting distinct social and cultural values and relationships through a unique land tenure lens. In many ways, this modern reservation property system is an illustration of the transformative power of historic property law reforms—although there the story was largely one of the negative consequences that have flowed from a history of ill-advised, top-down property reforms with external-focused goals.
This paper explores why, despite its widely acknowledged current perils, this modern reservation system has now proven largely immune from more meaningful positive reform. In this project, I analyze current and proposed reform efforts and emphasize potential reasons for the system’s unwavering persistence, including some of the shadowing effects of current legal complexity as well as deep instincts about the standardization and stability demands of property itself. With the recent Keystone XL and Dakota Access Pipeline protest movements as an important specific example and backdrop, this projects flips the history of federally driven reservation land reform practices and explores, instead, how reservation communities can—and already are—building something better from the ground up. By engaging with the literatures of law, development, and social systems change, this work explores specific strategies currently being deployed, or that may be deployed in the future, for more impactful grassroots action and community-driven legal change.
