Privatizing the Reservation?

88 Pages Posted: 9 May 2018 Last revised: 7 May 2019

See all articles by Kristen A. Carpenter

Kristen A. Carpenter

University of Colorado Law School; UN Expert Mechanism on the Rights of Indigenous Peoples

Angela Riley

University of California, Los Angeles (UCLA)

Date Written: April 20, 2018

Abstract

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, this Article complicates and challenges the narrative of Indian poverty and land tenure advanced by privatization advocates. We focus on real estate and housing in Indian Country to make three points. First, we argue that the salience of Indian homelands as places of collective religious significance, socioeconomic sustenance, and territorial governance has been lost in the privatization debate, which also largely disregards issues of remedial justice associated with conquest and colonization. Second, we introduce to the legal literature new empirical data and economic analysis from the Native Nations Institute demonstrating that the current system of land tenure in Indian Country is much more varied, and recent innovations in federal-tribal housing and finance programs are more promising, than some of the calls for privatization would suggest.

Finally, using specific examples from Indian Country, we highlight a model of indigenous self-determination and sustainability, rooted in the international human rights movement, that deserves attention in ongoing domestic policy debates about land tenure, and which has the potential to advance the well-being of humanity more broadly.

Keywords: property, privatization, housing, real estate, reservation, Native American, tribe, American Indian, indigenous, human rights, self-determination

Suggested Citation

Carpenter, Kristen A. and Riley, Angela, Privatizing the Reservation? (April 20, 2018). Stanford Law Review, Vol. 71, 2019, U of Colorado Law Legal Studies Research Paper No. 18-20, Available at SSRN: https://ssrn.com/abstract=3166333

Kristen A. Carpenter (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States
(303) 492-6526 (Phone)

HOME PAGE: http://lawweb.colorado.edu/profiles/profile.jsp?id=368

UN Expert Mechanism on the Rights of Indigenous Peoples ( email )

Geneva
Switzerland

HOME PAGE: http://https://www.ohchr.org/en/issues/ipeoples/emrip/pages/emripindex.aspx

Angela Riley

University of California, Los Angeles (UCLA) ( email )

405 Hilgard Avenue
Box 951361
Los Angeles, CA 90095
United States

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