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.
* Kristen A. Carpenter is Council Tree Professor of Law, University of Colorado Law School; and Member from North America, United Nations Expert Mechanism on the Rights of Indigenous Peoples. Angela R. Riley is Professor of Law and Director, Native Nations Law and Policy Center, UCLA School of Law; Co-Chair, United Nations Indigenous Peoples Partnership Policy Board; and Chief Justice, Citizen Potawatomi Nation Supreme Court.
The authors would like to thank Miriam Jorgensen and Randy Akee, along with the Native Nations Institute, for groundbreaking empirical work in this field. Deep gratitude goes to the many people in Indian Country referenced throughout this Article who have contributed to our knowledge and shared with us their experiences with tribal innovation on the ground. We extend our sincere appreciation to Greg Ablavsky, Jim Anaya, Chairman Rocky Barrett, Greg Bigler, Rick Collins, Steve Cornell, Carla Fredericks, Carole Goldberg, Joe Kalt, Sarah Krakoff, Stacy Leeds, Lance Morgan, Ezra Rosser, Jessica Shoemaker, Rebecca Tsosie, Charles Wilkinson, and Rob Williams for inspiring our thinking on this and other topics. We thank Brandon Stoffers for outstanding research assistance.