Date22 March 2022
AuthorMiskinis, Steve


Property theory is inarguably efficacious when used in the context of the western capitalist society that birthed it. But when it is applied to other cultures, it has difficulty accounting for cultural difference. This is in part because property theory, particularly as advanced by the law and economics school, aspires to an almost scientific objectivity with claims having universal applicability to all societies and cultures across history. Although easy to forget, the United States is at its heart a majority settler culture that has displaced and dispossessed the Indigenous peoples occupying this country prior to European settlement. Despite efforts to assimilate Native Americans by converting them and their cultures to something more recognizably western, they remain culturally different in significant ways. In fact, as this Article reminds, many precepts of current property theory provided the rationale for policies imposed by the federal government in the effort to assimilate and civilize Native Americans. While causing significant disruption and damage to their cultures, societies, and people, in the end those efforts failed. That is both a testament to the resilience and resistance of Native Americans. But it also shows that, historically at least, the effort to rationalize and make property systems efficient was understood to destroy cultural difference. Providing tribal members with land held in fee and the incentives of such ownership would naturally convert the person into someone indistinguishable from an energetic and efficient western farmer.

Today, those same theories with their same norms are the basis for proposed policies that would remedy problems like poverty and other ills on lands held by American Indian tribes. A continuing drumbeat, right up through the present day, urges that the cure for reservation ills lies in harnessing the "almost magical force" of private fee ownership. (1) As recently as the last administration, the federal government has advocated privatization of reservation lands (with the coinciding result of facilitating resource extraction on the privatized lands). (2) Property theory affects the contours of the debate in distorting ways, requiring the assertion of points in the field of property law that in other contexts would seem simply obvious. Thus, Jessica Shoemaker must argue (and does so persuasively) that property can have other important values above and beyond enabling economic efficiency. (3) Additionally, Kristen Carpenter and Angela Riley feel it necessary to demonstrate that communal land is necessary for tribal community, culture, and self-determination. (4)

Moreover, Carpenter and Riley, arguing against the impetus to privatize tribal lands, contend that data supports a relationship between vibrant "cultural practices" and "improved economic growth." (5) In doing so, they attempt to create a space in the contemporary discourse of property theory for valuing property regimes that support and sustain indigenous cultures. (6) They do so, of course, on the terms of the governing discourse, attempting to validate culture by appealing to its economic value. (7) This is something they must do to make culture cognizable within the framework of the current discourse which privileges economic efficiency. But as this Article argues, on the one hand, cultural difference is something not easily translated into the framework and norms of current property theory without erasing that difference. On the other hand, those norms lose their applicability as one ventures across cultural lines. That is a proposition well understood by frustrated federal policy makers who abandoned efforts to assimilate Native Americans by imposing a property regime privileging recognizably western forms of private property. (8) In the contemporary context, it is a point of caution for those seeking to address the problems of Indian Country by analyzing the efficiency and utility of its varying property regimes.

To be sure, culturally different societies have culturally different property systems and land tenures, and property theorists have long recognized that. (9) But the effort to discern those property systems in their difference is an exercise in translation because the notion of property itself is a western category that may be foreign to the culture subjected to translation. (10) The cultural logic of a commercial transaction on a cultural borderline, for example, may be quite different for each participant. The European trader acquiring fur pelts from Native Americans in early America was acquiring a sellable commodity while the Native American was establishing a social relation. (11) In such case, describing what has been acquired on each end as a commodity comports with the understanding of only one of the participants. As has been oft noted, land has a deep cultural significance for Native Americans that cannot be adequately captured by understanding it as a commodity that has a set of characteristics, such as being encumbered or freely alienable. (12) And as Carpenter and Riley note with regard to the differing cultural significance of what we call property, it is important to "articulate a framework to explain those [cultural] dynamics and their relationship with the larger, non-Indian society." (13)

But the peril of doing so is that it requires furthering a universalizing tendency that rediscovers in other cultures western categories like property. Avoiding this requires what James Clifford has called an "ironic" attitude towards a differing cultural "reality"--ironic because understandings native to a culture are not taken on their own terms but instead translated into familiar western terms. (14) Thus the effort to reconfigure property theory to make a meaningful place in its architecture for cultural difference is a project with inherent tensions that proponents should be wary of, however necessary such a project may be given the hard facts of contemporary reality.

The agenda of this Article is to foreground the difficulties of attempting to give significance to cultural difference in the context of property theory. First the Article reminds that in the past a recognizable predecessor of current property theory was used to support federal policies designed to eradicate cultural difference in the process of assimilating and "civilizing" Native Americans. Part One addresses Margaret Jane Radin's classic article, Property and Personhood. (15) Radin's thesis is that the subject or self is constituted in important ways through attachment to property, usually of personal significance, and accordingly the law does or should protect such property interests more vigorously. (16) Radin's work remains influential, being invoked, for example, by Shoemaker in support of establishing the importance of "place-based connections" for indigenous peoples. (17) But Shoemaker's resort to Radin requires massaging and conceptual transposition that already indicates difficulties at the cultural borderline. (18) Here the demonstration shows that attachments to personal property were perceived by westerners as lacking among Native Americans in the nineteenth century. Efforts to "civilize" them involved attempts to foster such attachments in a recognizably western form. (19) The very fact that such an effort might be needed supports the argument made here that the notion of self that premises Radin's view of property is not universal and therefore the theory it props is culturally limited.

Part Two addresses a thesis related to Radin's, that private property ownership can foster the communal belonging necessary for a healthy selfhood. Here the focus is on Property as Entrance, by Eduardo M. Penalver. (20) Penalver argues that human nature requires communal belonging and, seemingly paradoxically given the celebrated right to exclude that comes with private property, ownership of private property binds one to the community and its norms in which that property is located. (21) Moreover, in the same communal vein, private property can create enclaves for "territorially separatist communities" that have the capacity to develop norms of their own choosing, even if such norms are not embraced by mainstream society. (22) There is nothing objectionable about Penalver's thesis, but I address it to make clear that the Indian reservation cannot be another example of the success of this type of alternative community. The reservation, historically, emerged as the result of efforts to seriously reduce Native American landholdings. (23) And, culturally speaking, the purpose of the reservation was to confine tribes with the expectation that the limited lands in their possession would require abandonment of their traditional culture and adoption of a western lifestyle as farmers or ranchers. (24) That tribal cultures have survived on reservations is a token of their capacity to resist and adapt to straitened circumstances and is not a credit to the right to exclude provided by property ownership. (25)

Part Three turns to the most influential theory of property rights: the law and economics approach. The normative basis of this approach is that humans act out of self-interest, using reason to assess and pursue strategies that maximize individual benefits (while, at the same time, collectively maximizing social wealth under the appropriate conditions). Private fee land has the advantage of incentivizing productivity since the benefits of labor expended upon the land will be captured by the owner (instead of being subject to expropriation by others under other land tenures). (26) Again, nineteenth and early twentieth-century federal policy makers were familiar with this concept and sought to mobilize it in the service of assimilation. (27) By exchanging communal tribal land for individual allotments held by individual tribal members in fee, the theory went, the innate incentives of property...

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