Unearthing Indian Land: Living with the Legacies of Allotment (review)

"It is all about the Land" is a consistent theme in American Indian history. The United States wanted Indian land and devised many ways to take it. Professor Ruppel provides an excellent narrative of the appropriation process with particular emphasis on the continuing impact of the General Allotment Act. She eloquently contrasts the Europeans' understanding of what they were buying when they "bought" Indian land, encompassed in the Doctrine of Discovery, and Native Americans' customary acceptance of presents that allowed joint usage. From this initial misunderstanding she quickly moves to an effective description of the incorporation of land as commodity into American Indian policy. Her research was prompted by her exposure to current land issues on Fort Hall Reservation. This Shoshone-Bannock nation has experienced conflicts about landownership that mirror issues that affect all of Indian Country.

From these European-based assumptions the United States moved to justify its absolute sovereignty through discovery and conquest assertions articulated by John Marshall in the foundation decisions for U.S.-Indian relationships. The relatively systematic imposition of American terms on "domestic dependent nations," as Marshall described them, led to the reservation era and to the 1887 Allotment Act. Then the whole situation got complicated. Ruppel sorts through the complex history of Indian ownership of the diminishing land base, which has left about 51 million acres, about the size of Minnesota, owned by Indians and tribal governments.

As if the diminishment and accompanying jurisdictional controversies were not sufficient to prohibit effective reservation government, the legacy of American racism and application of a tortured version of fiduciary trust magnify a nearly incomprehensible situation. Professor Ruppel manages to elucidate the opaque about as well as it can be done. American racism means that only Indians with the appropriate blood quantum are allowed to inherit land that was allotted to individual Indians unless the land was granted in fee simple. Often parents cannot pass their land to their children because the children are not "Indian" enough or not enrolled. As soon as original owners died off, the Bureau of Indian Affairs applied the idea of an "interest" in land to inheritance, which has led to Indian "landowners" not actually owning land (the United States owns the land) but rather having an interest along with myriad other descendents of original allottees.

The United States has repeatedly tried to cut the Gordian knot of landownership. One example described in depth is the Indian Land Consolidation Act (1983), which allowed escheat to tribal governments of multiple heirship land. Of course, this led to court cases: Hodel v. Irving (1987), Babbitt v. Youpee (1997). Federal courts had to rule that the proposed solution violated the principles of private landownership, due process, and a host of other rights. A "fix" in 2000 satisfied no one, and the next "fix," the American Indian Probate Reform Act, seems only to be attempting to reduce costs to the federal government and divest it of fiduciary responsibility, according to Ruppel. On the other hand, the Eloise Cobell et al. case continues the issue of failure on the part of the BIA to even administer its trust responsibility to individual landowners and tribal governments. How much money is owed for mismanagement, and who gets it?

On the other hand (yes, there are at least three—a metaphorical reference to the representation of Hindu gods is probably needed if one is to understand the complexities), the issues of cultural identity with land as a focal point further complicate the picture. On the fourth hand, individual landowners—Indians and Indian-descendents-not-Indians—want to be able to use their land while keeping it from the tribal governments and the BIA too. Ruppel clarifies the nexus of land histories with case studies, reflections, and even poetry. Her conclusion is that the struggle continues and, if the legacies of colonialism are understood, can lead to "true neighboring" of Indian communities with the Americans. The history needs to be acknowledged by all...