Complexity's shadow: American Indian property, sovereignty, and the future.

• Author: Shoemaker, Jessica A.

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.

TABLE OF CONTENTS INTRODUCTION I. A TAXONOMY OF COMPLEXITY IN INDIAN LAND TENURE A. Institutional Differentiation: Checkerboards and Worse B. Technicality: Indian Law's Idiosyncrasies C. Density: Reams and Reams of Regulation D. Indeterminacy: The Exquisite Bind of Both Rigidity and Uncertainty II. THE CYCLICAL COSTS OF COMPLEXITY A. Categories of Harm 1. Landowner Withdrawal 2. Bureaucratic Growth 3. Democratic Inertia B. Fractionation as a Specific Example 1. Self-Perpetuating Cycles of Complexity 2. Need for System-Wide Approaches III. ANOTHER VIEW INSIDE THE SYSTEM: HYPERCATEGORIZED PROPERTY AND SOVEREIGNTY A. Fee vs. Trust B. Indian vs. Non-Indian C. Property Right vs. Property Right IV. FINDING PURPOSE A. Theorizing American Indian Property 1. Individual Rights 2. Utilitarianism and Information Costs 3. Human Flourishing B. Stated Reasons for Persistence 1. Tribal Jurisdiction 2. Land Preservation 3. Federal Trust Responsibility 4. Protecting Non-Indian Landowners C. Undercurrents: Complexity, Justice, Racism, and Doubt V. MANAGING FOR THE FUTURE A. Science of Reform and Revolt B. Iterative Adaptation and Change CONCLUSION "[W]hat happens if we take the law of American Indian property as a central concern rather than as a peripheral one? What happens if it is the first thing we address, rather than the last?" (1)

"[E]verything that we see is a shadow cast by that which we do not see." (2)

Introduction

Everything we know about property and sovereignty applies differently in the unique legal spaces of American Indian reservations. Characteristically, real property jurisdiction is territorial--meaning the law of the place where the property is located governs. If an Iowan purchases real property in Colorado, there is no question that Colorado governs that real property ownership. (3) This framework creates uniformity in matters from zoning to private real estate developments and simplifies property transactions and land use. But it is not so in Indian country.

Instead, in Indian country, different sovereigns define and regulate different properties within reservation territories. (4) Property jurisdiction varies parcel by parcel depending on factors invisible to an outside observer, including the owner's identity and the land's legal tenure status. (5) Within reservations, land is owned by both Indians and non-Indians and held in both "fee" and "trust" tenure statuses. (6) Indian-owned fee lands are subject to tribal and some state law. Indian-owned trust lands are federally governed, with some tribal role. Non-Indians' fee lands are subject to varying degrees of state and tribal control, depending on a list of still other factors. (7) The result is a strange and hard-to-predict mix of tribal, state, and federal property jurisdictions swirled together within reservation spaces. A sovereign's authority shifts tract by tract, and, in some cases, property right by property right within a single physical piece of land. Two tracts situated immediately adjacent to each other--or even two co-owners joined in shared ownership of the same physical resource--may be subject to entirely different rules set by different sovereigns and may have incongruent property rights. (8)

Within this jurisdictional maze, Indian landowners who hold real property in the special federal trust tenure status face additional challenges. (9) The federal trusteeship over Indian lands is rigid and restrictive--it includes multiple levels of bureaucratic land-management control and a near-absolute restraint on alienation. (10) The Secretary of the Interior must approve nearly every land use or transaction involving Indian trust land. (11) In addition, in large part because of the restrictiveness of this status, today many Indian trust properties suffer the practical realities of extreme co-ownership or fractionation, perpetuated by many generations of intestate distributions to multiple heirs and the lack of flexible inter vivos transfer options. (12) As of 2012, the average fractionated tract of Indian trust property had thirty-one co-owners, (13) but "many [parcels] exceed several hundred owners." (14) From 1992 to 2010, a period of time in which Congress actively sought to reduce or eliminate this fractionation problem, the severity roughly doubled, and the average rate of fractionation continued to increase. (15) For context, consider one sample forty-acre trust parcel that had 439 co-owners in 1987. By 2004, that same parcel had 505 co-owners; the common denominator used to compute fractional ownership interest sizes had increased from approximately 3.4 trillion to more than 220 trillion; and the value of the smallest owner's share had dropped to $.00001824. (16)

The overarching complexity of the entire Indian land tenure system creates devastating outcomes in American Indian communities. On one hand, the challenge is a straightforward information-cost problem. Property law, in general, benefits from greater simplicity by allowing owners to know what they own and efficiently negotiate around those clear property entitlements. (17) The complexity of the entire Indian land tenure system helps explain the fact that, although Indian people own more than fifty-six million acres of trust land (not to mention other lands in fee status), (18) they still regularly rank at or near the bottom of nearly every economic and social welfare indicator, including poverty, homelessness, life expectancy, and unemployment. (19) It is estimated that more than half of Indians' jointly owned trust lands are currently idle or generating no income, (20) and other economic analyses repeatedly demonstrate that reservation land is categorically less productive than similarly situated off-reservation land. (21) In many cases, it is simply too expensive to transact at all--much less, profitably--within this unpredictable and cumbersome legal landscape. (22)

But the complexity challenge is about more than just information costs. The particular way this system is constructed turns land tenure on its head: property decisions made by individual landowners dictate (often inadvertently) which sovereign controls where and over which subject areas. (23) The framework for allocating property jurisdiction among reservation sovereigns is both rigidly formalistic and rife with on-the-ground uncertainty. Tribal, state, and federal jurisdiction swirl together in complex and often unpredictable ways, and where they apply, federal rules for trust properties tend to be blunt, deeply bureaucratic, and insensitive to the tremendous diversity among tribal territories and on-the-ground circumstances. (24) The current system of pervasive federal control and piecemeal tribal and state jurisdiction tragically limits opportunities for meaningful grassroots experimentation and norm-setting around resource use and stewardship. Meanwhile, more nuanced reform proposals are limited by the complexity of the whole system, which obscures deeper understandings and makes the actual consequences of individual reform proposals hard to predict.

Even property law scholarship, if it addresses Indian land tenure at all, often misses the full picture of the modern Indian land tenure challenge. For example, scholars frequently talk about one issue in isolation--most often fractionation, or sometimes the restrictiveness of the federal trust status. (25) Other scholarship is focused on historic inequities in the colonial takings of Indian lands and that history's impact on the modern race-based inequities in property distribution in the United States. (26) The complexity of the system's dynamics, however--including the unique property and sovereignty dynamics in particular--compels more holistic attention and, ultimately, reform.

More than a hundred years ago, a group of non-Indian advocates calling themselves the "Friends of the Indians" set this system in motion by championing major property law reform within American Indians' reserved territories based on a fundamental belief in the transformative power of private property. (27) Western forms of private ownership of reservation land, they believed, would achieve their (so-conceived) humanitarian...