The chronic uncertainty of American Indian property rights

Abstract

Property institutions should ideally provide economic actors with certainty that their local choices about investment will not be unsettled by shifting political economic equilibria. We argue that for this to occur, political autonomy, administrative and enforcement capacity, political constraints, and accessible legal institutions are each necessary. A comparison of the evolution of property rights for settlers and American Indians in the United States shows how political and legal forces shape the evolution of property institutions. American Indians, who had property institutions before Europeans arrived, could not defend their land from Europeans and later Americans due to lacking military capacity. Settlers' property rights were relatively secure because the government had sufficient autonomy and capacity to broadly define and enforce their rights, political institutions constrained the government from expropriating settlers' property, and legal institutions provided a forum for settlers to adjudicate and defend their rights in court. Native Americans, in contrast, had systematically inconsistent and often expropriative policy treatment by the government. Although tribes have technically been sovereign since the 1970s, tribal governments continue to lack sufficient political and legal autonomy and capacity to define and enforce property institutions in response to evolving local conditions.

Political Divide, Weak Property Rights, and Infrastructure Provision: An Empirical Examination of Takings Decisions in Jerusalem

“…Predation patterns of exploiting the land of the politically weak for development (Murtazashvili and Murtazashvili 2020), e.g., for building roads and railroads in the service of the group in power, were the basis of the formation of many countries, such as the U.S. (Vahabi 2016) and their effects persist for substantive periods of time (Alston et al 2021;Allen 2019). This article provided original fine-grained detailed data set about the disproportionate risk of expropriation for the good of others, even when these expropriations are currently undertaken and subject to what is globally wise believed to be proper constitutional guarantees.…”

“…. Thus, and alongside other contexts of settler or colonizer societies, such as the case of the American Indians (Alston et al 2021), it maintained disparate property institutions for the two groups, where those serving Palestinians were clearly weaker. Consequently, while 84 percent of West Jerusalem's land, including the neighborhoods built on the 1970s expropriations, have undergone settlement of title or otherwise registered in the land registry, 5 only 27 percent of East Jerusalem (excluding the 1970s expropriations) is currently registered (17 percent) or under (de facto suspended) settlement of title proceedings (10 percent).…”

Property rights rule: comments on Bart Wilson's ‘The primacy of property; Or, the subordination of property rights’

“…Indian property rights also show the importance of rights and politics. The federal government forced specific types of property on Indians (fee simple) until the 1930s, and then after the 1930s, imposed rules that limited ability of Indians to define and enforce property rights on reservations as they saw best, thus contributing to uncertainty about property ownership (Alston et al, 2021). The idea of property has always been present in Indian country, but it is the specific nature of property rights that we rightly direct most of our attention to.…”

Late Homesteading: Native Land Dispossession through Strategic Occupation

“…studied nineteenth-century homesteading as an exemplar of territorial expansion in light of weak state capacity. See alsoAlston et al (2021).4 Frederick Turner, citing the 1890 census, famously declared the "closing of a great historic movement." By 1890, "the frontier" was no longer "a place in the census reports" Turner([1893] 1966, 199).…”