Complexity's Shadow: American Indian Property, Sovereignty, and the Future

Abstract

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 hyper-categorizing 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 reservation-by-reservation transformations of local property systems into the future.

Keywords: American Indian, Native American, property, land tenure, land use, complexity, complex adaptive systems, administrative law, sovereignty, indigenous, fractionation, alienation, property institutions