Wednesday, March 15, 2017

Finding the Intersection of American Indian Law and Property Law



In 2014, the Association of Law, Property, and Society (ALPS) conference was at the Peter A. Allard School of Law at the University of British Columbia and there was a plenary panel on teaching property law.  [NOTE: Shameless plug for the 2017 ALPS Conference at the University of Michigan goes right here!  You can still register!] Joe Singer (Harvard) was one of the participants on the plenary panel, and I distinctly recall Joe saying that every property class should include something on Indian law. Joe's property textbook (like many property textbooks) is true to his comment with a section on the forced seizures of property from American Indian nations.  

Someone who understands better than anyone else the connection between Indian law and property law is Jessica Shoemaker (Nebraska).  Jess and I have been friends for a number of years and she has taught me a good bit about American Indian law and the checkerboard, "emulsified," fractioned property rights held by American Indian tribes.  Jess' latest article, Complexity's Shadow:  American Indian Property, Sovereignty, and the Future, 115 Mich. L. Rev. 487 (2017) continues the scholarly tradition Jess has become known for.  

You don't have to take my word for the strength of Jess' article; Ezra Rosser (American) recently wrote this about the article on JOTWELL:

[The article] does a great job detailing and explaining the web of rules and overlapping governance structures that contribute to the underdevelopment of Indian land. Although Complexity’s Shadow draws upon property theory and the work of scholars interested in legal complexity, the real strength of the piece is just how grounded it is in reservation land restrictions....

Complexity’s Shadow should become, along with Judith Royster’s earlier article, The Legacy of Allotment, one of the go-to sources for scholars interested in the problems of fractionated reservation land. But besides being an article destined to be cited in many footnotes, Complexity’s Shadow should also interest property scholars who ordinarily consider Indian property rights only in passing.

Shoemaker’s observations of Indian poverty and land tenure complexity is much more nuanced than the kneejerk—make them like us—position of many non-Indians. At the very end of the article, Shoemaker switches from focusing on detailing the nature of top-down land use controls to calling for gradual change based on local experimentation.…

Though Shoemaker largely leaves to future scholars and local communities the work of showing what approaches can succeed in freeing reservation land from its current unworkable complexity, Complexity’s Shadow provides a great foundation for such work, which is crucial if Indian nations are to thrive.

Thanks, Jess, for your contributions! 


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