The rise of urban archipelagoes in the American west: a new reservation policy?

• Author: Rasband, James R.

1. VENIMUS, VIDIMUS, VICIMUS(1)

   In the nineteenth century, Americans looked out upon the vast West and its abundant natural resources and saw the possibility of great wealth and opportunity. One obstacle presented itself to national aspirations: the Indian tribes. The tribes were little match for the resource hunger of the growing country. Their numbers were relatively few; their military resources were relatively paltry; their political power was almost non-existent; and their ties to the land had little legal recognition, consisting only of the right of use and occupancy, which Congress could terminate at will and without compensation.(2) As fast as homesteaders, miners, grazers, railroads, timber companies, and others came West, laws and policies were adopted to prevent Indian interference with the aspirations of these newcomers.(3) Whether the United States's policy was relocating tribes farther west, isolating them on reservations, or attempting to assimilate them into American society,(4) federal Indian policy was characterized by one primary goal: pushing aside Indian tribes to facilitate the exploitation of the West's bountiful natural resources.

   This description of federal policy and its primary goal is, of course, rather pejorative and was not the way it was characterized at the time. As many Americans in the nineteenth century saw it, the West's natural resources were not being exploited. Instead, they were being put to productive use, in contrast with the "unproductive" uses of hunting, gathering, and subsistence agriculture that largely characterized Indian peoples' use. Although many would have conceded that Indian tribes were being pushed onto Indian reservations, most argued that it was for their own good and that ultimately Indians would benefit by departing from their unproductive use of the land in favor of more productive activities such as farming, ranching, and mining.(5) To the extent these policy justifications were insufficient or uncomfortable, the law was a helpful ally. The law of the land gave Congress nearly plenary control over Indian tribes and the lands on which they resided,(6) and the Supreme Court had limited Indians' property rights in their aboriginal lands.(7) Removal of tribes from their land required no compensation unless the United States deemed it wise.(8)

   Most Americans now look back on this era with discomfort and regret. Federal Indian policy is roundly criticized as self-interested, cruel, and often deceitful.(9) And the panoply of public land laws disposing of public lands--among which were the 1872 Hard Rock Act,(10) the 1902 Reclamation Act,(11) and the various railroad land grants--are routinely disparaged as leading to the Great Barbecue, a period of unequaled despoliation of the natural resources on the public lands.(12)

   Barbecue or not, the result of public land policy in the nineteenth and early twentieth centuries was the establishment of a number of rural communities throughout the West.(13) These rural communities were largely dependent upon using the natural resources on the public lands to sustain their livelihoods. Much of the rural West suffered from the booms and busts endemic to mining, but farming and ranching generally provided a foundation for the development of stable communities of families that over multiple generations, developed an attachment to the public lands that went well beyond those lands' financial fruits.(14)

   From the perspective of Native Americans, the demographic changes in the nineteenth century were surely enormous. However, in sheer numbers the migration into the West during the nineteenth century is dwarfed by that since World War II. During the last half century, the West has undergone massive growth and the Mountain West has grown more quickly than any other area of the country.(15) The influx has occurred largely in the cities of the West, and the suburban and exurban(16) areas that surround them, resulting in a number of what demographers have called "urban archipelagoes."(17) In fact, the Western United States is now the most urbanized portion of the country.(18) The in-migration experiences in the West has not, of course, come simply to Colorado's Front Range, Utah's Wasatch Front, and the West's other urban archipelagoes. It has also come to a variety of small towns in the West, like southeastern Utah's Moab, which serve as gateways to the West's national parks, monuments, wilderness, and recreation areas. During the last twenty years, Moab has experienced explosive growth, predominantly in the service and tourism sector, as people have come to mountain bike on the nearby slickrock and to drive, hike, and explore the area's sublime canyons and red rock country.(19) No single motivation has spurred the migration into the West,(20) but like their nineteenth century counterparts, many have come to enjoy the fruits of the West's magnificent natural resources.

   Although those who have come to the Moabs of the West, and those others of us who have flocked to the West's urban archipelagoes, have a different view about how the West's natural resources are best used, often many of us seem to share with our nineteenth century counterparts the view that those who were here before we arrived are an obstacle and hindrance to achieving our desired use of the West's resources. This time it is not Native Americans and their hunter-gatherer lifestyle that stand in the way of farming, ranching, and extraction, but rather rural Westerners and their cattle, sheep, mines, and roads that seem to stand in the way of recreation and preservation. Indeed, there are profound nineteenth century echoes in the goal of many of the West's new immigrants to wean rural Westeners of their dependence on the public lands and to train them in the arts of city-bound, service economies so that the public lands will be available for the new Westerners' preferred uses. This parallel goal is accompanied by parallel arguments about economic productivity and ]and use morality, with the law again serving as a useful ally for elevating the new majority's land use preferences.

   In the nineteenth century, most were certain that leaving the West undeveloped and using its abundant resources for hunting, gathering, and occasional agriculture was economically irrational.(21) Now a variety of persuasive economic studies show that traditional public land economies, dependent upon timber, grazing, and mining, are not efficient and that recreation and preservation are far more productive uses of the public lands.(22) Such studies point out that the percentage of the national and Western economy represented by Western extractive industries is small and getting smaller,(23) making it less and less rational to devote the public lands to extractive interests. Likewise, the prevailing political and moral sentiment in the nineteenth century was that the yeoman farmer who mixed his labor with the soil and established community roots was engaged in an activity superior to the transitory act of hunting and gathering.(24) Extraction and consumption of resources to promote economic development were viewed as better than eking out a subsistence. Now, many of us tout ecosystem preservation--largely for recreation--as a morally superior land use, whether as a matter of intergenerational equity or ecological necessity.

   Thoroughly confident in our political and moral sentiments and in our economic calculus, we have set out, both consciously and unconsciously, de jure and de facto, to move many of our rural communities away from their dependence on the public lands and to create a new West of urban archipelagoes surrounded by public lands preserved for our aesthetic and recreational enjoyment. As in the nineteenth century, the law does little to hinder our aspirations.(25) Grazers have no property rights in the lands on which they have grazed their cattle for multiple generations, but only a privilege to use and occupy the public lands until the United States decides to the contrary.(26) And where public land users have property rights--unpatented mining claims, federal mineral leases, state-created water rights, or rights of way(27)--Fifth Amendment takings jurisprudence presents little hindrance to regulations that make the exercise of such property rights unattractive.(28)

   Although the analogy between current and nineteenth century public lands policies is not perfect,(29) it is useful in considering the impact of public lands policy on the rural West because such a contrarian lens may cause those in urban areas for whom preservation is the chief goal to exhibit a little less certainty about the superiority of our public lands aspirations. If the history of the American West has been "[c]onquest by certitude" as Charles Wilkinson suggests in his powerful and evocative book, Fire on the Plateau,(30) the perils of such certitude remain every bit as real. Can those of us in the urban West be so certain that our motives for changing the paradigm of public lands use are any less self-interested than those of our nineteenth century counterparts? Or are the motives much the same, different only in the particular public lands amenity that we seek? If our motives are similar, or at least have similarities, what then? Does it follow that transitioning from rural dependence on natural resource extraction is necessarily a bad thing? Does it mean that recreation and preservation should not be the preferred uses of our public lands? Not necessarily. What it means is that we should be a little less certain about that calculation and perhaps, a little less dismissive of rural arguments and interests. Moreover, it means that we should be thoughtful and scrupulous with respect to the manner in which we achieve our public lands aspirations.

   This Article develops the analogy between the current shift in public lands use and the one that preceded it, argues in favor of less certitude, and...