The division of Native American reservations into individually owned parcels was an unquestionable disaster. Authorized by the General Allotment Act of 1887, allotment cost Indians two-thirds of their land and left much of the remainder effectively useless as it passed to successive generations of owners. The conventional understanding, shared by scholars, judges, policymakers, and activists alike, has been that allotment failed because it imposed individual ownership on people who had never known private property. Before allotment, so this story goes, Indians had always owned their land in common. Because Indians had no conception of private property, they were unable to adjust to the culture of private land rights and were easy targets for non-Indians anxious to acquire their land. Professor Bobroff argues that this story is wrong. Attempting to draw on often ignored Indian voices and considering anthropological and historical accounts, he reviews evidence that before allotment and continuing on reservations today, Native American societies have had a wide range of property systems. These native property systems vary across climates, resources, cultures, and historical periods, but many have recognized private property rights in land. Bobroff argues that allotment failed not because Indians had never known private property, but because it imposed a single dysfunctional property system on all Indian tribes and prohibited those tribes from changing it. Once an Indian reservation was allotted, tribal property laws were replaced and could no longer evolve. They could only be changed, quite literally, by an act of Congress. This insight into allotment is important because it suggests that the solution to the problem of highly fractionated Indian land titles is neither, as previous reforms attempted, to return all allotted land to tribal ownership nor to remove all restrictions from allotted lands. Rather, the solution lies with tribes and allotment owners reestablishing functional property systems that allow efficient use and rational inheritance of allotted lands. Having created the monster of allotment in 1887, it is only fair that Congress should provide resources and assistance to help tribal property systems succeed.
Kenneth H. Bobroff,
Retelling Allotment: Indian Property Rights and the Myth of Common Ownership,
54 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss4/2