Friday, April 24, 2015
Jessica Shoemaker (Nebraska) has posted Emulsified Property (Pepperdine Law Review) on SSRN. Here's the abstract:
The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The rights and responsibilities of trust owners are set by federal and tribal law, while fee owners are subject to state or tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This article, however, reveals an even more complicated issue that has thus far gone unaddressed in the literature. This article analyzes for the first time how the modern reservation is not merely a checkerboard of fee and trust parcels situated next to each other. Rather, significant numbers of reservation lands are now jointly owned by co-owners who hold undivided interests in the same property in different tenure types. Thus, many individual tracts now contain a mix of trust and fee ownership interests in the same resource.
These “emulsified” properties are made up of theoretically undivided co-ownership interests; however, the fee and trust co-owners have very different rights to the same property, including vastly different use and possession rights. There is no single over-arching set of legal rules that applies equally to all interests in emulsified properties, nor any single dispute resolution tribunal through which co-owners can negotiate a fair and efficient use of the resource. This article explores for the first time how these emulsified properties are created and analyzes the unique obstacles they create for landowners and for governance. While others have argued for a refocus on tribal property regimes in order to support tribal sovereignty more generally, this emulsified property problem tips the scales and makes more robust tribal property systems, with clear authority to govern all interests in emulsified properties, a critical next step.