There is an argument within federal-Indian law literature that suggests Indians could have more effectively protected land under U.S. law if they owned land in fee simple rather than under trust. There is better protection for private property under the U.S. Constitution than can be had from treaties, aboriginal title, and federal trust protection.
This kind of argument is called a hypothetical and requires acceptance of certain assumptions before the argument’s logic can be understood. Hypotheticals are used in legal debates and in law school teaching to consider various outcomes of cases by hypothetically changing case facts. Hypotheticals explore alternative case situations, or anticipate future scenarios based on changing circumstances.
One such hypothetical suggests that if Indians had U.S. land ownership rights they would have had greater success defending their land. The implication is that trust lands and treaty lands, which ultimately derive from aboriginal title have not been easily defendable in U.S. law. Indian trust land does not have direct support from the private property rights assumed under the Constitution.
To accept the proposed hypothetical, one has to assume that Indians would accept private individual land and protect it in U.S. courts, law and government. If one can accept Indians agreeing to private land ownership, then the proposed argument has force. The U.S. government, laws, and courts are constitutionally bound to protect private property. If Indians were agreeable that tribal land could be turned into private property then they would have the property protections of the U.S. system. In some cases, in recent decades, conservative judges and legislators have favored Indian land rights, often because they saw Indian land as private property. The judges in the Cobell case saw the money unpaid to Indian trust allotments as a violation of property rights.
The difficulty with the argument that private property rights would be better for Indians is not so much in logic of the argument, but within its assumptions about Indian people. Most Indian community members prefer collective ownership of land, as has been the tradition for thousands of years. The land is held collectively, but subgroups like families, clans, villages, or other groupings according to local traditions, are managers and users of specific segments of land. However, unlike land in fee simple, the land assignments for tribal collectivities cannot be sold on the market. Sometimes the land is traded or sold to other tribal members, and the land remains under the collective stewardship of the entire tribal nation.
For thousands of years, tribal communities have done quite well within their own property rights systems, but often have not done well under American private ownership land rights systems. The most telling historical examples are both the various allotment acts and the termination acts. Under both policies, Indians were compelled to sell collective land, and take land that was distributed as private fee simple, or land that would eventually turn into fee simple.
In general, the allotment acts and termination acts, designed to make the transition to private property, and to explicitly destroy the collective property powers of tribal nations, were dismal economic failures for the tribal nations. The failures are so devastating that scholars often suggest that the primary purpose of allotment and termination policies were not fostering tribal economic development, but rather the dismantling of tribal nations and the transfer of Indian land to U.S. citizens.
Many Indian allotments today are largely rented out to non-Indian businessmen and farmers, who economically benefit more than Indian allotment holders. Indian nations, who have different understandings of community, land, spirituality, and future goals, will probably do better within their own property rights systems. Private rights are not designed to preserve tribal property or tribal nations. If tribal nations elect to take on private property systems, they should do so under tribal law and tribal government, and not under U.S. law.