Embracing Disruption and Other Lessons from Canada

In 2019, I found myself in Iqaluit, Nunavut—the small capital city of the newest and northernmost territory in Canada. Nunavut means “our land” in Inuktitut, an Inuit language, and the population of Nunavut remains nearly 80 percent Inuit. One of the many surprising aspects of Nunavut is how flexible and dynamic property law seems when you are standing on Arctic ice. Part of this property experience is practical. Adaptive property systems naturally calibrate to the physical geography in which they are built, and in Nunavut, the frozen landscape is particularly formative. Offshore, the sea ice on which residents frequently traverse can shift with underlying currents and tides. At times, the ground literally moves beneath your feet. Nunavut is also facing the consequences of rapid climate change. At the same time, throughout Iqaluit’s beautiful, brightly colored neighborhoods, schoolchildren and pedestrians scramble over snowdrifts and trace winding footpaths to get from one point to another. Property feels different without fences, marked lot lines, or even formal sidewalks. But the dynamism of property law in Nunavut is also legal. Nunavut Territory is recognized because of a comprehensive land claim agreement that came into force in 1993 between the Canadian federal government, the government of the Northwest Territories, and the Tungavik Federation of Nunavut—the representative of the Inuit people of what is now Nunavut. This land claim agreement changed not only who owns land and resources in Nunavut but also who governs the region. These transitions involve ongoing renegotiations of fundamental property understandings in the territory as well. Just five years ago, Nunavummiut—the people of Nunavut—considered, but resoundingly rejected, a referendum that would have allowed some land to transition to new forms of private ownership. Instead, Nunavummiut voted to retain a housing system built largely on long-term leases of collectively held municipal lands. The Nunavut Territory is also still navigating an ongoing process of devolution of public (Crown) lands and significant natural resources from the federal to the territorial government. In the United States, in contrast, current systems of Indigenous land tenure and governance feel much less dynamic. Indeed, one of the greatest challenges for modern tribal governments in the United States is the lack of flexibility to control and govern reserved lands in truly dynamic and pluralistic ways. In particular, the federalized system of regulatory oversight on U.S. reservation trust lands remains, for the most part, highly restrictive and cumbersome. Despite some efforts to streamline and reform the federal land management role, nearly every land use decision by a tribe or tribal citizen still defaults to federal approval and oversight requirements. These restrictions negatively impact not only reservation economies, but also, importantly, the ability of tribal governments to shape and communicate other social and ecological values through land tenure. This standardization of tribal real property systems into a single federal regulatory system is by design. Prior to European contact, the Indigenous peoples of North America had diverse and nuanced land tenure systems. In many ways, American colonialism proceeded as a concentrated effort to eliminate tribes’ land-based diversity. Federal actors repeatedly chose top-down property law reforms to control and shape the lives of Native people and Native nations—first with dispossession and displacement through a proclaimed European right of discovery and then, even within tribes’ reserved territories, with other forced property reforms such as allotment, termination, and even the formalized federal trust status. The rigid homogenization of tribal property systems that ensued—trapping tribal governments too often into a one-size-fits-all federal regulatory system—has had devastating consequences that are widely acknowledged but remain difficult to undo. Looking to Canada for comparison, however, the legal landscape for Indigenous-led land reforms in the United States appears more challenging than it needs to be. The Nunavut Land Claim Agreement is one of many examples of active treaty, land claim, and other modern self-government negotiations ongoing in Canada today. These active negotiations are set within a larger national reconciliation process that has been productive, although far from perfect. Canada’s modern treaty tables, for example, are often criticized for being too slow, too expensive, and requiring too many controversial compromises. But compared to the United States—where there is no such open and active process—the difference is glaring. In Canada, some of the movement toward new forms of Indigenous land rights and governance is driven by a recognition of persistent Aboriginal titles. Canada has recognized remaining Indigenous claims to territory and land that are valid, unresolved, and unceded. The United States, however, has mostly dismissed similar claims by Native nations at this juncture—even going so far as to declare that some persistent Indigenous land claims are too “inherently disruptive” to be acknowledged. A closer comparison between the two countries’ approaches to previously recognized and retained tribal lands within tribal reservations (or reserves, as they are called in Canada) also reveals stark differences. In the United States, perhaps the signature regulatory change for reservation trust lands has been the 2012 Helping Expedite and Advance Responsible Tribal Home Ownership Act (HEARTH Act). With this Act, the U.S. Congress intended to provide a pathway for tribal governments to achieve greater self-determination over reservation lands, and many tribes have taken advantage of it. But the Act is also much more limited than it may appear. It allows tribes to opt into a system in which tribes can execute certain qualifying surface leases—only on tribally owned trust lands—without federal approval of each individual leasing decision. The HEARTH Act has no applicability at all to individual trust lands or any fee lands, even within reservation boundaries. This means the HEARTH Act allows tribes to act as owners more efficiently and without federal regulatory delay and interference over the lands the tribe already owns. The HEARTH Act does not recognize any extension of governance rights in tribes as sovereigns over their wider, and often checkerboarded, reservation territories. Furthermore, access to this direct-leasing system under the HEARTH Act is contingent on the federal government pre-approving the tribe’s leasing regulations. Federal approval primarily requires that the tribe’s regulations are deemed “consistent with” existing federal leasing rules. Tribes must also incorporate a federally mandated, environmental review process. And there is no guarantee of federal funding when tribes take over these federal leasing functions, leaving some tribes in a financial pinch. This is a very thin version of tribal sovereignty and self-determination. In contrast, First Nations seeking independence from Canada’s default federal land management and oversight function may look to the First Nations Land Management Act (FNLMA). The FNLMA flows from a government-to-government negotiated framework agreement, constructed with an original consortium of 13 First Nations. Unlike the HEARTH act, the FNLMA is not the result of top-down federal legislation. The FNLMA provides a pathway for First Nations to adopt fully customized land codes of their own choosing with a host of substantive possibilities. First Nation codes can cover all lands within a given reserve—even lands for which the First Nation Band itself is not the direct owner, but are instead subject to individual claims or entitlements. The FLNMA also does not contain a consistency requirement, so First Nations can creatively build land codes that meet their needs in an open-ended way. A third-party verifier—not the federal government—confirms that the Band’s land code meets basic requirements, including coverage of core topical areas in a written code. Participating First Nations receive both transitional and operational funding from the Canadian government. The FNLMA is not perfect or even necessarily ideal. Some critics worry that the FNLMA is part of an overall system of “municipalization” of Indigenous sovereignty and a too-convenient means to provide market actors more efficient access to reserve lands and resources. There is also a fair question about who really benefits from these land transitions. There is much more to say. But the point for now is this: Property law is powerful. It shapes how we relate to each other and to the world around us—literally determining the paths we take to get to where we need to be. In its management of Native lands, the United States has repeatedly sought to preserve a largely broken status quo, avoiding messy disruptions in favor of consistency and concerns for the settled expectations of outside interests. But reconciliation done right is inherently disruptive. These alternative models from Canada highlight at least that more creative paths are possible. It is well past time for the United States to embrace a similarly robust and resilient view of a tribally led reform process