Indiana Law Review Land, Culture, and Community: Reflections on Native Sovereignty and Property in America Rebecca Tsosie* God created this Indian country and it was like He spread out a big blanket. He put the Indians on it. They were created here in this country, truly and honestly, and that was the time this river started to run. Then God created fish in this river and put deer in these mountains and made laws through which has come the increase of fish and game. Then the Creator gave us Indians life; we awakened and as soon as we saw the game and the fish we knew they were made for us I was not brought from a foreign country and did not come here. I was put here by the Creator. 1 INTRODUCTION Chief Meninock's words describe a world in which the Native people, the land and its resources interact under a Divine plan created for a particular place on earth. The people exist under the same set of laws that governs all other living things, which results in order, balance, and abundance. Contemporary American society, ofcourse, is governed by a system ofman-made laws that has created an imbalance of resources, whether measured in tangible ways (e.g., land) or intangible ways (e.g. equality of opportunity). This Symposium addresses that problem by evaluating the continuing inequalities in wealth and property that exist in America. "America" symbolizes many things, among which are a geographical territory, a robust pluralism that highlights values of tolerance and respect for diversity, and a constitutional democracy that has become one ofthe major world powers. Each of these aspects informs the dialogue on property, wealth and inequality. But for the indigenous peoples ofthis land, "America" has a different meaning. Acoma poet Simon Ortiz says that, "[NJative culture is at the heart of everything that is America." 2 Indigenous identity is formed by the intersection * Lincoln Professor ofNative American Law & Ethics; Executive Director, Indian Legal Program, Arizona State University College of Law. This Article is based on the remarks I made at the AALS Workshop on Property, Wealth and Inequality at the 2001 annual meeting in San Francisco, California. My thanks to Dean Stuart Deutsch for inviting my participation, and to the editorial staffofthe Indiana LawReview for their great patience and dedication to this Symposium. The Symposium sparked an abundance of intriguing ideas, complex problems and areas for further inquiry. This Article is intended merely to highlight some of these ideas, issues and problems, as they relate to Native peoples. I leave their further exploration for another day and a more comprehensive analysis. 1 . Testimony ofChiefMeninock (Yakima) During a 191 5 Trial for Violating a Washington State Code on Salmon Fishing, in Great Documents in American Indian History, 297-98 (Wayne Moquin & Charles Van Doren eds., 1973). 2. Simon Ortiz, Presentation at American Indian Studies Director's Conference, Arizona 1292 INDIANA LAW REVIEW [Vol. 34:1291 of land, culture, and community, and the way we respond to those critical elements of our existence defines the meaning of "sovereignty" and "property" for the First Nations of this land. The discussion of"property, wealth and inequality" for Native people is one that depends upon an understanding of how Native sovereignty and land rights have been adjudicated in this country. Indian Nations within the United States exist as "nations within a nation." Native peoples' survival in America depends upon their ability to maintain their unique cultural identity as well as their separate political status. As separate cultures, Native peoples maintain distinctive world views, containing a composite ofvalues and norms, that guide the ways in which the people relate to their ancestral lands and resources. As separate governments, they maintain a measure ofautonomy over their lands and exert ownership over natural resources such as water, fish and game, timber, and minerals. However, the federal government serves as the "trustee" for reservation lands and resources. Thus, although the Native people have beneficial use of these lands and resources, the title is held in trust for them by the United States government. As trustee, the United States has certain powers of control and disposition that have not always been used for the best interests of Indian people. That fact has been vindicated in a number of important lawsuits brought by Indian nations and tribal members to force the federal trustee to account for its mismanagement of these interests. 3 The trust doctrine, which highlights the fact that Native people own a great deal of "property," though they often lack control over these resources, has been the basis of much of what has been written about property, wealth and inequality for Native people. 4 I will not duplicate those important works but will focus on a much less obvious problem: the distinctive normative basis for the rights to land and autonomy, which are at the heart of the debate over "property, wealth and inequality" for Native people. For the many Nations indigenous to these lands, the concepts of"wealth" and "property" that we apply to discussions of land and other natural resources, are State University (Feb. 16, 2001) (on file with author). 3. See, e.g., United States v. Mitchell, 463 U.S. 206 (1983) (holding federal government liable for mismanagement of timber resources); Seminole Nation v. United States, 316 U.S. 286 (1942) (holding that the federal government breached its fiduciary duty to the Seminole Nation by paying treaty annuities to a tribal treasurer, who misappropriated funds, rather than to tribal members, as called for by the treaty); Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999), affdsub nom. Cobell v. Norton, 240 F.3d 1081 (D.C.Cir. 2001) (class action suit by individual beneficiaries of Individual Indian Money Accounts for mismanagement of accounts). Through several rounds of litigation, the plaintiffs in the Cobell case have prevailed in the district court and in the Court of Appeals. See also Bi\\ Miller, Court: $10 Bil. Owed Indians; U.S. "Has Failed Time andAgain," Ariz. Republic, Feb. 24, 2001, at A28. 4. See, e. g. , Mary Christina Wood, Indian Landandthe Promise ofNative Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471; Mary Christina Wood, Protecting the Attributes ofNative Sovereignty: A New Trust Paradigm for Federal Actions Tribal Lands and Resources, 1995 UTAH L. REV. 109. 200 1 ] NATIVE SOVEREIGNTY 1 293 quite distinctive. This essay is intended to highlight some ofthose features and to respond to the themes of this Symposium on "Property, Wealth, and Inequality," in this multicultural and pluralistic society that we call "America." Part I offers an historical overview of the relationship between property and sovereignty for Native peoples in this country. Part II describes the contemporary conflicts that Indian nations face as they exert their rights to property and sovereignty. Part III highlights the normative differences that underlie intercultural conflicts over land and autonomy, offering a conceptual framework for the debate. Part IV builds on this conceptual framework by proposing a mode of analysis for further development of this subject. I. Property and Sovereignty in America: An Historical Overview The history ofthe United States is, at a very basic level, a history ofconflict over two things: property and sovereignty. Nowhere is this conflict better illustrated than in the history of conflicts over land and governance between Indians and non-Indians. The federal government's policies were directed at nation-building and, hence, the acquisition ofmaximum amounts ofterritory and governmental autonomy. Unfortunately, despite the treaty paradigm, which should have brought about intercultural and bilateral negotiations of rights to sovereignty and property, Native people have been placed in the position of reacting to federal policy. Thus, while the federal government's purported policy was to enter into treaties with Indian nations to gain rights to land, its "real" policy was to gain the maximum amount of land for white settlers (who would "efficiently" use the land) at the least possible cost, in terms of warfare and lives. 5 In 1 783, President George Washington articulated the country's first "Indian policy' ,»'. [P]olicy and [economy] point very strongly to the expediency of being upon good terms with the Indians and the propriety of purchasing their Lands in preference to attempting to drive them by force ofarms out of their Country; which as we have already experienced is like driving the Wild Beasts of the Forest which will return as soon as the pursuit is at an end and fall perhaps on those that are left there. 6 Ofcourse, Washington was confident that this policy would placate the Indians and that the growing numbers of American settlers would encroach upon the diminishing numbers of Indians until they were no more. He wrote that, "the gradual extension of our Settlements will as certainly cause the Savage as the 5. See, e.g., Eric Kades, The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation ofAmerican Indian Lands, 148 U. PA. L. REV. 1065 (2000) (arguing that the laws and policies that appropriated Indian lands for non-Indian use and enjoyment were designed to promote "efficiency," i.e., the most cost-effective expropriation). 6. Letter from George Washington to James Duane (Sept. 7, 1 783), in Federal IndianLaw 84-85 (David H. Getches et al. eds., 4th ed. 1998). 1294 INDIANA LAW REVIEW [Vol. 34:1291 Wolf to retire; both being beasts of prey tho' they differ in shape."7 In 1817, President James Monroe stated, in his first annual message to Congress, that the Indian nations should be forced to open their lands to settlement by non-Indians. 8 "No tribe or people," he explained, "have a right to withhold from the wants of others more than is necessary for their support and comfort." 9 This statement became the philosophical justification for the government's policy of divesting Native peoples of their lands, through treaty and outright warfare. President Grant's Indian policy reflected a tenuous balance between "war and peace." 10 If Indian Nations, such as the Lakota Sioux, would "peacefully" submit to land cessions, this was the government's preference; if not, the "iron fist" of federal Indian policy—the U.S. Cavalry—stood ready. It is no accident that the administrative agency charged with "management" of Native peoples, the Bureau of Indian Affairs, began its existence in the Department of War, not the Department of Interior. President Monroe established the Office ofIndian Affairs within the Department ofWar, in March of 1824. " Not surprisingly, with the loss of their traditional lands, Native people also lost a great deal oftheir autonomy. The reservation system was designed to curb Native sovereignty over the relatively large areas oftheir aboriginal territory, and the federal government used its land policies to fragment the political authority of Indian nations. For example, the government broke down powerful alliances ofNative people, such as that among the Lakota, Dakota and Nakota peoples that comprised the Sioux Nation, by separating them onto small and dispersed reservations. In other cases, the federal government removed "hostile" factions of Indian tribes to geographically distinct locations, where their ability to mobilize the tribe against the federal government would be minimized. This is what happened, for example, to the Chiricahua Apache resisters, who fought the United States, under the leadership ofGeronimo, and were subsequently shipped from their ancestral lands in the Southwest to Florida and then to Oklahoma. 12 The Reservation and Removal policies eroded the treaty-based paradigm of 7. Id. 8. See Joseph William Singer, Legal Theory: Sovereignty and Property, 86 Nw. U. L. REV. lm 1 n.3 (1991) (citing 1 Francis Paul Prucha, The Great Father: The United States Government and the American Indians 1 49 ( 1 984)). 9. Id. at 1 (quoting PRUCHA, supra note 8, at 149. 1 0. See Robert M. Utley, The Indian Frontier of the American West: 1 846- 1 890 1 32 (1984) (discussing President Grant's "Peace Policy" toward American Indians, as well as his alternative plan: "Those [Indians] who do not accept this policy will find the new administration ready for a sharp and severe war policy"). 1 1 . Kevin Gover, Assistant Secretary, Indian Affairs, Dep't of the Interior, Remarks at the Hall of Tribal Nations ceremony (Sept. 8, 2000) (on file with author); see also Bureau OF Indian Affairs, Short History of the BIA, available at http://www.doi.gov/bia/shorthist.html (last visited June 1,2001). 12. See H . HENRIETTA STOCKEL, WOMEN OF THE APACHE NATION 7 ( 1 99 1 ). 200 1 ] NATIVE SOVEREIGNTY 1 295 tribal sovereignty, but the Dawes Allotment Act was even more devastating. 13 The Dawes Act of 1 887, which broke up collective tribal landholdings on many reservations in order to grant individual land allotments to tribal members, was passed absent any consultation with the Indian Nations. The Dawes Act followed an 1 871 rider to a Congressional appropriations bill, which "officially" ended treaty-making with Indian Nations. However, it did not explicitly extinguish existing Indian treaty rights; nor did it contain explicit limitations on tribal sovereignty. Rather, it suggested that the purpose of allotment was quite benevolent: to grant individual Indians property rights comparable to those of "civilized" people and, therefore, facilitate their integration into American society. Ofcourse, the Dawes Act was also responsible for the loss ofnearly 1 00 million acres oftribal treaty lands, which were designated as "surplus lands" and opened for settlement by non-Indians. 14 The Dawes Act was later interpreted, by the United States Supreme Court, to allow the allotment of Indian lands and sale of surplus lands, in violation of treaty provisions forbidding the acquisition of Indian lands without tribal political consent. 15 In fact, the only qualification was that the Indian tribe, as ward, had to be given equivalent compensation for the land taken by its federal "trustee." 16 Although the Indian Reorganization Act of 1934 17 officially ended the allotment policy, the Dawes Act left a severe and traumatic legacy for Indian nations. Many Indian people lost their allotments after they were released from trust status through tax foreclosures and sales under economic duress. Reservation communities continue to suffer jurisdictional problems administering "checkerboard lands," which are areas on the reservation where tribal trust allotments are interspersed with parcels owned in fee by non-Indians. Additionally, in some cases, this pattern of ownership has inspired the federal courts to find that the external boundaries of the reservation have been "diminished" or even that the reservation has been "disestablished." 18 In such cases, the Indian nation can only exercisejurisdiction over those parcels still held by the tribe or its members, and the state regulates the balance of the land. Most significantly, however, several modern opinions of the United States Supreme Court have created a doctrine giving preference to the rights of non- Indian property owners on the reservation over the rights of tribal governments 13. Dawes Allotment Act, 25 U.S.C. §§ 331-334 (1994). 14. Under the Allotment Policy, Indian landholdings were reduced from 138 million acres in 1887 to 48 million acres in 1934. See Vine Deloria, Jr. & Clifford M. Lytle, American Indians, American Justice 10 (1983). For general background on the Allotment Policy, see id. at 8-12. 15. See Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). 16. See id at 566-68. 17. 25 U.S.C. §§ 461-479 (1994). 18. See, e.g., South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789 (1998) (finding that Yankton Sioux Tribe's Reservation was diminished by allotment act); Hagen v. Utah, 5 1 U.S. 399 (1994) (finding that Uintah Indian Reservation was diminished by congressional act opening reservation to non-Indian settlement). 1296 INDIANA LAW REVIEW [Vol. 34:1291 to effectively regulate reservation lands. 19 Professor Singer has described this doctrine as one whereby the Court abdicates its responsibility to protect tribal property rights by treating tribal property and restricted trust allotments owned by tribal members as a "commons available for non-Indian purposes when needed by non-Indians." 20 II. Contemporary Conflicts over Property and Native Sovereignty The meaning of tribal sovereignty, as it relates to property rights, is particularly compelling in a public policy era focused on protecting the vested property rights of American citizens. The debate over water rights in the many on-going Western stream adjudications, which involve the application of the prior appropriation doctrine, provides a good example of this. In the arid climates ofthe West, a landowner's "wealth" is often best measured by the water rights that support his or her use ofthe land resource. Although the priority dates ofthe Indian tribes are generally the earliest in time, often their rights have not been recognized with respect to water projects. In the minds of most non- Indians, the rights of Indians to available water are secondary to those of private citizens, whose property rights are "perfected" and have become "vested." The idea, that tribal interests in water should not be recognized in the face of the vested property interests of individual citizens, became one of the policy underpinnings for ChiefJustice Rehnquist's opinion in Nevada v. UnitedStates.™ In Nevada, the Court applied res judicata to bar the Pyramid Lake Paiute Tribe's challenge to a 1944 adjudication of their water rights, which failed to provide water for fisheries, though the fisheries were critical to the tribe, and despite the fact that the tribe had not been effectively represented in the proceeding because ofthe federal government's conflicting duty to the non-Indian beneficiaries ofthe reclamation project. 22 Another dominant theme in the Supreme Court's currentjurisprudence is the idea that tribal interests in uniform regulation of land, within the exterior boundaries of the reservation, should be subordinated to the interests of non- Indian owners of "fee land" within the reservation. Rather than trying to facilitate the efficient administration of reservation lands by Indian tribes, the Court's opinions have increasingly determined that Indian nations retain very limited jurisdictional authority over non-Indians on fee lands. 23 These opinions 19. See, e.g., Brendale v. Confederated Tribes and Bands of Yakima, 492 U.S. 408 (1989) (holding that Yakima Nation did not have jurisdiction to regulate land use on non-Indian fee land within the "open" area ofthe reservation); Montana v. United States, 450 U.S. 544 (1981) (holding that Crow Tribe did not have the jurisdiction to regulate hunting and fishing by non-members on fee land within the reservation). 20. Singer, supra note 8, at 3. 21. 463 U.S. 110(1983). 22. See id. at 145. 23. See, e.g., Atkinson Trading Co., Inc. v. Shirley, 121 S. Ct. 1223 (2001) (holding that Navajo Nation did not havejurisdiction to impose a hotel occupancy tax upon nonmembers on non- 200 1 ] NATIVE SOVEREIGNTY 1 297 are supported by the Court's belief that the "diminished sovereignty" of Indian tribes over their reservation impairs their ability to regulate non-Indians. 24 So, to the extent that the tribe has lost its treaty "right to exclude" non-Indians from the reservation (through the federal government's allotment of the reservation and sale of land to non-Indians), it has also lost its right to regulate. Ifthe Tribe seeks to regulate non-Indian property owners, under its inherent sovereignty, the Court finds that the "dependent" status of the Indian tribes conflicts with their ability to limit the vested property interests of non-Indian landowners. 25 In Montana, for example, the Court held that Indian tribes had been implicitly divested of their inherent sovereign authority to regulate non-Indian hunting and fishing on non-Indian fee lands within the reservation. 26 The Court reasoned that the "exercise of tribal power beyond what is necessary to protect tribal self-government or control internal relations is inconsistent with the dependent status of the Indian tribes and so cannot survive without express congressional delegation." 27 In Brendale, the plurality opinion of the Court decreed that the tribe had been divested ofzoning authority over non-member fee land in the "open" area of the reservation, although the tribe retained such authority over fee land held in the "closed" area ofthe reservation (an area ofthe reservation where there was a minimal amount offee land and which was closed to nonmembers who were not residents and where the tribe held cultural activities). 28 Despite the fact that "checkerboard" zoning jurisdiction, like "checkerboard" wildlife management, is inherently unworkable, the Court opted to protect the liberty interests of the non-Indian landowners over the tribe's interests in effective governmental regulation. The subtext of these cases emerges in Justice Stevens' separate opinion in Brendale, which expresses his belief that Tribes may enforce discriminatory rules that would be intolerable in a non-Indian community and that nonmembers have no opportunity to participate in tribal government. 29 Cases like Montana and Brendale demonstrate the Court's current beliefthat tribal jurisdiction over non-Indian property owners on the reservation has been severely curtailed. Most recently, the Court's opinion in Strate further narrows the two exceptions set forth in Montana, which supported the inherent right of tribes to regulate non-Indian activities which have a direct effect on important tribal interests or where the non-Indian party is in a consensual relationship with the tribe or its members. 30 Not surprisingly, the boundaries of tribal Indian fee land within the reservation); Strate v. A-l Contractors, 520 U.S. 438 (1997); Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989), Montana v. United States, 450 U.S. 544 (1981). 24. See Montana, 450 U.S. at 565. 25. See id. at 563-64. 26. See id. 27. Id. at 564. 28. See Brendale, 492 U.S. at 422-32, 443-44, 456-59. 29. See id. at 434-36 (Steven, J., concurring). 30. See Strate v. A- 1 Contractors, 520 U.S. 438 ( 1 997) (holding that a tort action against non- 1298 INDIANA LAW REVIEW [Vol. 34:1291 jurisdictional authority are currently under further attack in the federal courts. 31 The Supreme Court's recentjurisprudencejeopardizes remaining tribal rights to land and political autonomy. While the Court seems satisfied that Indian nations possess sovereignty over their trust lands and tribal members, it has severely limited the ability of tribal governments to protect their lands and resources through effective, uniform regulation. By granting priority to the interests of non-Indian landowners, the Court disregards the responsibility to protect the tribes' interests. As Professor Singer's comprehensive article on this problem notes, these cases "teach us a great deal about both the social meaning of property rights and about the just and unjust exercise of governmental power." 32 Indeed, Professor Singer highlights several features ofrecentjurisprudence, that stand in direct contravention of "some of the most cherished truisms about the meaning of private property in America."33 First, these cases show that the Court's protection ofproperty interests is not uniform. The Court gives stringent protection to non-Indian owners offee land on the reservation, while it treats the group rights of Indian nations to their trust lands as a social anachronism of "communal property," that can be made secondary to non-Indian interests. Interestingly enough, when the debate is between Indian and non-Indian property interests, the Court lumps individual Indian allottees along with the tribe, without much thought as to why individual property rights should be treated differently depending upon whether the holders are Indian or non-Indian. 34 However, when the debate over property rights is between an individual Indian allottee and his or her Nation, the Court tends to side with the individual property owner. 35 Second, the Court assumes that non-Indian property owners on the Indians, with respect to an accident occurring on a public highway that ran through an Indian reservation, could not be brought in a tribal court because the action failed to qualify under the Montana exceptions). 3 1 . Earlier this Term, the Supreme Court heard arguments in Nevada v. Hicks, 1 96 F.3d 1 020 (9th Cir. 1999), cert, granted, 121 S. Ct. 296 (2000). The Court is reviewing the Ninth Circuit's opinion upholding the jurisdiction of the Fallon Paiute-Shoshone Tribal Court over a claim by a tribal member against state law enforcement officers for alleged tortious conduct and civil rights violations arising on a trust allotment owned by the member within the reservation. Another case to monitor is Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210 (9th Cir. 2000), reh'g en banc granted, 240 F.3d 1215 (9th Cir. 2001), in which the Ninth Circuit held that the Hoopa Valley Tribe does not have authority to regulate timber harvest on non-Indian owned fee land within the reservation located within a "buffer zone" designated by the tribe as necessary for preservation of a protected cultural site. 32. Singer, supra note 8, at 3. 33. Id. 34. See id. at 3-4. 35. See, e.g., Hodel v. Irving, 481 U.S. 704 (1987) (holding unconstitutional a provision of the Indian Land Consolidation Act which permitted forfeiture to the tribe of minute fractionated heirship interests in allotted parcels belonging to tribal members when the decedent failed to specify an alternative disposition by will). 200 1 ] NATIVE SOVEREIGNTY 1 299 reservation have the right to be free from political control by Indian nations. 36 According to Justice Stevens' separate opinion in Brendale, it would not be fair to subject such property owners to the control ofa tribal government which does not allow non-Indian participation. On the other hand, the Court has little difficulty in finding that Indian nations are subject to the political sovereignty of non-Indians. 37 As Singer notes, this disparate treatment of both property and political rights is not the result of neutral rules being applied unfairly; it is the result of "formally unequal rules." 38 Singer asserts that this implies an uncomfortable truth: "both property rights and political power in the United States are associated with a system of racial caste." 39 Although some may find Singer's comment a bit polemical, it finds a great deal of support in the history of treaty relations in the United States for two distinctive groups: American Indian Nations and Mexican-Americans. Despite a very different historical context, the contemporary claims of Mexican- Americans to justice, under the Treaty of Guadalupe Hidalgo, are analogous to American Indian treaty claims because they are group-based and emphasize both the cultural rights of Mexican people within the dominant society and the need for the United States to admit its history of injustice, which has caused their dispossession from their lands. 40 Mexican-Americans view the Treaty as imposing a moral obligation upon the United States to respect the property rights and human rights that were guaranteed to the Mexican nationals who were incorporated into the United States. 41 The courts, however, have largely disregarded this perspective, viewing the Treaty as an agreement between sovereigns, unsuitable for analysis in a domestic dispute between U.S. citizens and their government. 42 The Court's interpretation ofIndian treaties is often inconsistent. Sometimes the Court has interpreted the treaties as agreements between sovereign powers, which guaranteed the Indian nations their continued right to govern their lands and resources. 43 In other cases, the Court has used a much more restrictive reading of treaties, finding that they, in fact, created tribal rights to their resources, 44 and that those rights can be unilaterally abrogated by the action of 36. See Singer, supra note 8, at 4-5. 37. See id. 38. Mat 5. 39. Id 40. See Rebecca Tsosie, Sacred Obligations: lntercultural Justice and the Discourse of Treaty Rights, 47 UCLA L. REV. 1615, 1635 (2000). 41. See id. 42. See id. at 1 63 1 -32 (discussing Botiller v. Dominguez, 1 30 U.S. 238 ( 1 889), which upheld an interpretation of a statute that resulted in the dispossession ofmany Mexicans from their treaty- guaranteed land rights). 43. See, e.g., United States v. Winans, 198 U.S. 371, 381 (1905) (upholding the Tribe's off- reservation fishing rights on the basis that "the treaty was not a grant of rights to the Indians, but a grant of rightsfrom them—a reservation of those not granted"). 44. See, e.g., Montana v. United States, 450 U.S. 544, 559 (1981) (noting that, if the Crow 1300 INDIANA LAW REVIEW [Vol. 34:1291 the federal government, as a "superior" sovereign exerting authority over the "dependent" Indian tribes. 45 Not surprisingly, the Court's restrictive reading of Indian treaties is generally applied to protect and enhance non-Indian property interests. 46 This discussion highlights the need to identify the conceptual basis for the conflict between land and autonomy that informs the debate over "property, wealth, and inequality." III. The Conceptual Basis for the Conflict over Land and Autonomy Where do Native peoples fit within the debate over "property, wealth, and inequality"? In order to formulate a response to this key question, we must first have a working definition of property, wealth, and inequality. But even at this most fundamental level, the conceptual disjunction between Native and non- Native cultures is apparent. Most importantly, do Native and non-Native people even share a common understanding of "property"? Even if we all agree to a standard definition of "property" as the rights, powers, and interests that individuals and groups have with respect to a variety of resources (e.g., water, fish, plants, cultural objects), there remains a fundamental problem with our understanding of how those rights, powers and interests come into being. Professor Laura Underkuffler-Freund offers an important insight into the problem, when she writes: Property rights are, by nature, social rights; they embody how we, as a society, have chosen to reward the claims of some people to finite and critical goods, and to deny the claims to the same goods by others. Try as we might to separate this right from choice, conflict, and vexing social questions, it cannot be done. 47 Property, then, depends upon the relationships among people in a society. This appears to make sense for individuals, who collectively comprise a unitary society. The debates among those individuals may rationally relate to other social ideals, such as equal access, distributive justice, and fairness in the Tribe's 1 868 Treaty with the United States "created tribal power to restrict or prohibit non-Indian hunting and fishing on the reservation, that power cannot apply to lands held in fee by non- Indians") 45. See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903) (holding that the United States could unilaterally abrogate a treaty provision, when "in the interest of the country and the Indians themselves"). 46. In Montana, the Court's interpretation supported the private property rights ofnon-Indian landowners on the reservation; in Lone Wolf, the Court's interpretation supported the forcible allotment of the Treaty reservation of the Apache, Comanche, and Kiowa Nations, and the subsequent sale of a large portion of those lands to non-Indian settlers. 47. Laura S. Underkuffler-Freund, Property: A Special Right,1 1 NOTREDAMEL. Rev. 1033, 1046 (1996) (footnote omitted). 2001] NATIVE SOVEREIGNTY 1301 adjudication of their respective rights to land and other resources. 48 However, this understanding is problematic when dealing with the rights of distinctive peoples, who preexisted the formation ofthe society and who were involuntarily annexed (as sovereign groups) into that society through acts ofcolonialism. The question of intercultural justice is at the heart ofthis relationship and the way we conceptualize the institution of property can continue to strip Native peoples of their lands and autonomy. Moreover, our normative foundation ofproperty involves the values that we attach to the idea of "ownership." Joseph Singer commented that "[o]wnership entails not only the granting ofrights but also the adoption of obligations." 49 As a society, we grant rights to protect individuals' interests in liberty, autonomy, and self-determination. As a society, we must agree on the obligations that such ownership entails, such as the obligation to refrain from harming one's neighbor, which is at the heart of the ancient maxim "sic utere." In some cases, such obligations are reciprocal. For example, as zoning law illustrates, it may only be through agreeing to have one's rights limited that one's ultimate enjoyment of property rights is guaranteed. Again, however, this entire structure depends upon some uniform notion of the values inherent in the institution of property. It is entirely possible, for example, that the questions of justice that inform the relationship among individual property owners in a society are quite different from those implicit in relationships among separate sovereign governments and the Nation that involuntarily incorporated them. To simplify a very complex point, if property law as an institution is to be just in its application to Native peoples, it must at least attempt to respect their unique claims to land and resources. The existing framework, unfortunately, does not. As the discussion in Part II demonstrates, the courts have largely upheld Indian Nations' use and enjoyment of tribal trust lands within the reservation. Thus, tribes can use those lands for economic development, including gaming facilities, timber harvesting and mining, so long as they do not offend any contrary provisions of federal law. As noted, however, their efforts to maximize the value ofthese lands, through effective regulation, have often been frustrated by the Court's determination to protect non-Indian owners of fee land on the reservation. 50 These frustrations are compounded by the history of devastating loss and displacement which has resulted in reservation trust lands comprising only a small portion of Indian Nation's aboriginal homelands. Moreover, many tribes were removed from their aboriginal territory altogether and settled in distant locations. 51 Despite the fact that some Tribes have received monetary compensation for 48. See, e.g., JOHN Rawls, A THEORY OF JUSTICE (rev. ed. 1 999). 49. Joseph Wilson Singer, Entitlement: The Paradoxes of Property 1 7 (2000). 50. See supra notes 1 8, 26 and accompanying text. 51. For example, many of the Southeastern tribes, such as the Cherokee, Choctaw and Chickasaw were relocated to the Oklahoma Indian Territory. 1302 INDIANA LAW REVIEW [Vol. 34:1291 the forcible dispossession of their lands, 52 they continue to suffer in ways not amenable to financial redress. To illustrate this problem, I will discuss several cases that highlight the value of land to Native people, reflecting a different view about property as "wealth," and explain how that value is adjudicated within modern conflicts over the appropriate use of "public lands." A. Land as Sacred Geography There is a dynamic and on-going relationship between Native peoples and the land. Although this relationship is often misunderstood by non-Indians and depicted as "nature worship" or something similar, the land carries a critical significance to indigenous peoples. Professor Frank Pommersheim described the significance, writing: "Beyond its obvious historical provision of subsistence, it is the source of spiritual origins and sustaining myth which in turn provides a landscape of cultural and emotional meaning. The land often determines the values ofthe human landscape."53 For most Native peoples, land is constitutive of cultural identity. 54 Many Indian nations identify their origin as a people with a particular geographic site, often a mountain, river or valley, which represents an integral part ofthe tribe's religion and cultural world view. 55 This is the case for the Lakota, who believe that they emerged from caves within the Black Hills, which they call "Wamaka Og'naka Icante"—the "heart of everything that is."56 Land is also a way to identify the cultural universe ofa particular tribe.57 For example, the Navajo Nation identifies four sacred mountains which mark the boundaries of their universe. This understanding requires the people to undertake many ceremonial obligations and also orients the people in understanding how to meet their responsibilities to each other and to the land. Many tribes share the beliefthat the people must look after the land. However, such relationships are also seen as reciprocal. So, for example, the Western Apache say: "The land makes people live right. The land looks after us. The land looks after the people." 58 Among the Western Apache, place names are used very specifically to tell stories about events that took place at these sites. These 52. The Indian Claims Commission Act, ch. 959, § 1, 60 Stat. 1049 (repealed 1978), for example, provided statutory claims for compensation ofgrievances relating to land rights, including involuntary extinguishment of aboriginal title. Many tribes have prevailed in such claims but are typically awarded only monetary compensation. In other cases, tribes have successfully sued state governments, who acted without federal authority (in violation of the Nonintercourse Acts) to appropriate tribal lands. 53. Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. REV. 246,250(1989). 54. See Tsosie, supra note 40, at 1640-41 . 55. See id. 56. William Greider, The Heart ofEverything That Is, ROLLING STONE, May 7, 1 987, at 37, 62. 57. See Tsosie, supra note 40, at 1 640. 58. Keith H. Basso, Wisdom Sits in Places: Landscape and Language Among the Western Apache 38 (1996). 200 1 ] NATIVE SOVEREIGNTY 1 303 stories provide a code of appropriate moral behavior to guide the people. Thus, the place name evokes not only a picture of the place but a story to "make you live right." 59 In fact, the meaning, origin, and significance ofthe land resides in the stories, songs, and prayers of the Native peoples and communities that belong to these lands. The land is a source of sustenance and abundance, but the cultural knowledge that comes from the land is also a form of "wealth" for Native peoples. As Joy Harjo, a Creek poet, says: "Stories are our wealth."60 Leslie Silko, Laguna novelist, agrees, noting that through those stories, Pueblo culture is transmitted across generations, inclusive of the strategies, beliefs, norms, and values necessary to ensure cultural and physical survival within a specific geographic location. 61 Thus, the value of these resources to Native people is measured in both tangible and intangible ways. The land that we now call "America" in fact represents a "sacred geography" of mountains, forests, rivers, canyons, and deserts. Deward Walker identifies many sacred sites that are actively used by Native religious practitioners and discusses several "functions of sacred geography" for Native peoples, including the fact that they identify fundamental cultural symbols and patterns, provide an image ofsocial order, and, perhaps most importantly, are a tangible link between the world of human beings and the sacred, "where spiritual power" can be accessed. 62 Thus, "[u]nless rituals are performed at the proper locations, they have little or no efficacy." 63 Notably, many ofthese sites are located on what are now considered to be "public lands": National Parks, National Monuments, and land owned by the federal government and managed by agencies such as the Bureau of Land Management. B. Public Lands: The Property of "Americans " Normally, Americans are quite protective of their attachment to private property rights. Private property rights are exalted under Americanjurisprudence for serving the values of efficiency and productivity and because they enhance an individual's basic rights, including liberty and autonomy. A strange counter- example exists, however, in the concept of "public lands" which are perceived to belong to all Americans collectively and which are managed for the "greater public good" by the national government. Multiple use policies governing public lands emphasize the necessity to use the lands efficiently, for commercial and economic benefit as well as recreational use. 64 Federal public land policy has 59. See id 60. Joy Harjo, Secrets from the Center of the World 24 ( 1 989). 61 . See Leslie Marmon Silko, The Indian with a Camera, Foreword toACIRCLEOFNATIONS: Voices and Visions of American Indians 7 (John Gattuso ed., 1993). 62. Deward E. Walker, Jr., Protection ofAmerican Indian SacredGeography, in HANDBOOK of American Indian Religious Freedom 1 10, 1 10-1 1 (Christopher Vecsey ed., 1991). 63. /