Papers by Jessica Shoemaker
The Western Historical Quarterly
The typical American Indian reservation is often described as a “checkerboard” of different real ... more 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 general jurisdictional framework provides that federal and sometimes tribal law sets the rights and responsibilities of trust owners, while fee owners are subject to a peculiar mix of state and 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 not been fully identified 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 prop...
Creating Private Sector Economies in Native America
This chapter explores the link between entrepreneurship and the larger project of reservation lan... more This chapter explores the link between entrepreneurship and the larger project of reservation land tenure reform. Many scholars draw a connection between land-tenure design and economic development generally. This chapter provides a more detailed analysis of current reservation land tenure dynamics and the specific challenges these systems can create for private economic development. Despite this current system’s widely recognized economic and non-economic perils, successful reservation land reforms have proven incredibly difficult to achieve. In order to encourage more land-tenure innovation, this chapter flips the land reform conversation on its head. Instead of focusing solely on land reform strategies to promote economic development, this chapter explores how supporting entrepreneurship itself might, in turn, drive more experimental, innovative, and flexible Indigenous-led land reform. Entrepreneurs tend to thrive in the kind of uncertain legal environment that is otherwise seen as a problem in Indian country, and entrepreneurs might therefore be uniquely well suited to navigate reservation legal landscapes in creative ways. Entrepreneurship can be a powerful catalyst both to improve reservation economies and to support Indigenous efforts to reclaim and sustain local land ethics and community property law choices.
This Article offers a new perspective on the challenges of the modern American Indian land tenure... more 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 hypercategorizing 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 I...
Michigan Law Review
A Review of Federal Ground: Governing Property and Violence in the First U.S. Territories. By Gre... more A Review of Federal Ground: Governing Property and Violence in the First U.S. Territories. By Gregory Ablavsky.
SSRN Electronic Journal, 2021
SSRN Electronic Journal, 2022
Great Plains Research, 2017
Property, 2019
This Article provides an introduction to land-related legal issues facing tribal governments and ... more This Article provides an introduction to land-related legal issues facing tribal governments and Indigenous peoples in the United States and is intended to encourage deeper and more widespread engagement on these important topics. Forced property law reforms have been used throughout history as this country’s primary tool for implementing its colonial objectives, and today unique property rules continue to apply in Indian country with complex effects—and, often without significant public or scholarly attention. This Article seeks to help close this attention gap by providing an accessible introduction to important American Indian land tenure topics, including both the lessons of historic uses of property law in federal Indian policy and more modern reservation land tenure dynamics. Additional topics include the complex relationship between property and sovereignty in Indian country, the many and varied efforts to resolve historic land and Aboriginal title claims in the United States...
SRPN: Oil (Topic), 2017
This invited essay analyzes the recent Keystone XL and Dakota Access Pipeline protest movements t... more This invited essay analyzes the recent Keystone XL and Dakota Access Pipeline protest movements through a property law lens, emphasizing for an interdisciplinary audience the complex social relationships implicated in most private property dynamics. It includes an overview of the Keystone XL and Dakota Access conflicts through the summer of 2017, but it does not attempt to resolve any of the lingering legal controversies. Instead, building on the progressive property literature, this essay uses these pipeline protests as an illustration of the inherent tensions in the private and public dimensions of property. Themes explored more specifically include (1) the prevalence of non-economic values imbedded in private resource claims, (2) the importance of accounting for private property’s impacts on both owners and non-owners (a point that is particularly salient when considering, as the essay does, the specific history of indigenous land claims in this context and the constructed nature...
California Law Review, 2019
This Article challenges existing narratives about the future of American Indian land tenure. The ... more This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, oppressive, and linked to persistent poverty in many reservation communities. Yet, for complex reasons, trust property has proven largely immune from fundamental reform. Today, there seem to be two primary approaches floated for the future of reservation property. The first is a “do the best with what we have” strategy that largely accepts core problems with trust, perhaps with some minor efficiency-oriented tinkering, for the sake of the benefits and security it does provide. The second is a return to old, already-failed reform strategies focused on “liberating” American Indian people with a forced transition to statebased fee simple property. Both strategies respond, sometimes implicitly, to deep impulses about how prope...
SSRN Electronic Journal, 2020
Property law's roots are rural. America pursued an early agrarian vision that understood real pro... more Property law's roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white landownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, through acts of colonialism, slavery, and explicit race-based exclusion in property law. Today, rather than undoing this racialized legacy, modern property rules only further concentrate and homogenize rural landownership. Agricultural landownership remains almost entirely-98 percent-white. This is a critical racial justice issue that converges directly with our impending environmental crisis and the decline of rural communities more generally. * Professor of Law, University of Nebraska College of Law. I am most grateful to the many farmers and farm advocates who let me into their community meetings, around their kitchen tables, and in their fields-especially when I was a Skadden Fellow with Farmers' Legal Action Group, Inc., many years ago. I also benefited tremendously from feedback from Eric
Kansas Law Review, 2015
Anderson ed., 1992). 11. Many property law scholars and social scientists have recognized, in oth... more Anderson ed., 1992). 11. Many property law scholars and social scientists have recognized, in other contexts, the importance of carefully designing default rules for jointly owned property to promote co-owner cooperation and achieve the most efficient use of resources, while also satisfying personal, familial, and community goals.
Great Plains Research, 2014
Wis. L. Rev., 2003
... attempting to fix it. I am also grateful to Del Laverdure, Stacy Leeds, Jess Gilbert, Jane La... more ... attempting to fix it. I am also grateful to Del Laverdure, Stacy Leeds, Jess Gilbert, Jane Larson, William Whitford, and Brenda Haskins for generous support at various stages of this process. Finally, thanks to Marilyn Abildskov ...
Michigan Law Review
This Article offers a new perspective on the challenges of the modern American Indian land tenure... more 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 hypercategorizing 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 I...
AARN: Indigenous Peoples (Sub-Topic), 2018
This Article challenges existing narratives about the future of American Indian land tenure. The ... more This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, controlling, and linked to persistent poverty in many reservation communities. Yet, for complex reasons, trust property has proven largely immune from fundamental reform. Today, there seem to be two primary options floated for the future: a “do the best with what we have” approach that largely accepts core problems with trust, perhaps with some minor efficiency-oriented tinkering, for the sake of the benefits and security it does provide, or a return to old, already-failed reform strategies focused on simply “liberating” American Indian people with a forced transition to state-based fee-simple property. Both strategies respond, sometimes implicitly, to deep impulses about how property should work, especially in a market ec...
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Papers by Jessica Shoemaker