Reimagining New Paths for Tribal Property Systems

Of the many atrocities committed against indigenous people in the U.S. and Canada, upending their land tenure systems is not the first that comes to mind. But the legal quagmire it created in both countries contributes to poverty in many communities.

Unlike their southern neighbors, the Canadian government has engaged in a reconciliation process with native peoples.

To better understand Canada’s approach, Jessica Shoemaker, associate professor of law, received a Fulbright Canada Research Chair in Aboriginal Legal and Resource Rights. She spent the 2018-2019 academic year at the University of Alberta Faculty of Law in Edmonton.

“We’ve used property laws in indigenous communities throughout history as basically social engineering, and it’s had a lot of negative effects,” Shoemaker said. “The United States hasn’t really confronted this history of mistreatment.”

For example, in the 19th century, the U.S. government sought to assimilate Native Americans into Western culture by allotting tribal lands to indigenous individuals in a restrictive federal trust and selling other reservation land to white settlers.

Generations later, reservation land ownership and federal property laws restricting land use are a mess, Shoemaker said. The current property system is inflexible, cumbersome and expensive, often costing more in bureaucratic upkeep than the land is worth. Most problematic, indigenous people can’t freely use restricted property to advance economically or to reflect community choices.

“The history of property and indigenous people in the United States is one of dispossession and displacement of fundamental land governance rights,” Shoemaker said. “There are living indigenous communities affected by this on a day-to-day basis.”

In Canada, Shoemaker explored the country’s reconciliation process, including ongoing land-claim litigation, treaty renegotiation and laws intended to improve relationships.

She’s using what she’s learned to reimagine new pathways for tribal property systems in the United States that include greater flexibility and tribal authority.

“This has been really fruitful for me to think more creatively about how this reimagining could happen in the U.S. as well,” Shoemaker said.

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