Indigenous Peoples Book Review 136 Harv. L. Rev. 2074

Before Mine!: Indigenous Property Rights for Jagenagenon



Many of our most basic rights and fundamental freedoms — securing bodily autonomy, patenting inventions, maintaining authority over who (and what) can live inside our homes — are shaped by property law. In a new book by Professors Michael Heller and James Salzman, Mine!: How the Hidden Rules of Ownership Control Our Lives, the authors set out to show that property is, in fact, everywhere.

Even a cursory review of civil dockets — a good starting place for lawyers and law students to get a snapshot of the state of the legal landscape — reveals that courts across the country, including the Supreme Court, are consistently presented with an unending bevy of cases centered on property disputes.1 These conflicts help shape the laws that define and refine the metes and bounds of what can be owned, by whom, and pursuant to what limitations (if any) under American law. Mine! astutely takes the reader from commonly held and seemingly facile understandings about property — of course, it is my choice as to whether to have a cat in the home that I own! — through a labyrinthine set of laws and policies that complicate the notion of ownership in America today. Page by page, the book unravels a central truism: America is a country replete with laws governing property and, concomitantly, we are a society filled with owners (and, increasingly but not evenly, nonowners). Virtually everything, including the space between the back of your airplane seat and the tips of the passenger’s knees behind you, can be “owned,” at least insofar as individuals stake a claim to it that they expect to be enforced in their favor.

Heller and Salzman are exceedingly well situated to write this book. Both law professors, at Columbia University and the University of California, Los Angeles (UCLA), respectively, the authors are experts in the field of property. Heller has explored contemporary property laws and considered their impacts on society in an earlier book, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.2 Salzman has taken a deep dive into the ownership of life’s most basic resource in Drinking Water: A History.3 And both are nationally renowned property law scholars.

My primary objective in this Review is to use Mine! as a jumping-off point to introduce and then contrast its central tenets with an Indigenous property perspective.4 In doing so, I seek both to show how the property rules articulated in Mine! have historically been used and misused to justify the mass dispossession of Indigenous lands in the United States and, further, to demonstrate how the underpinning of those property theories stands in sharp relief to property systems found in many Indigenous communities.

Thus, taking the book as inspiration, I begin Part I by discussing Mine! and highlighting its many contributions to the property literature. Building on Part I, the next Part takes a decided pivot, delving into the ways in which property dispossession and the legal rules that justified it have had devastating — and continuing — impacts on Native peoples in the United States. Part II further highlights three contemporary property disputes that threaten the ongoing cultural existence of Indigenous Peoples. Part III then turns to the future of Indigenous property rights. It details numerous ways in which Native people in the United States are attempting to reclaim lands, religious practices, and resources that were lost pursuant to property regimes — many at the core of Mine! — that justified and advanced dispossession. The Review concludes with a discussion of international human and Indigenous rights law, and it explores ways in which we may conceive of property in more just ways in the future.

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* Professor Riley is a member of the Citizen Potawatomi Nation and Chief Justice of the Citizen Potawatomi Nation Supreme Court. She is a Professor of Law and American Indian Studies, UCLA School of Law, and Director, Native Nations Law and Policy Center. The author extends her deep appreciation to the editors at the Harvard Law Review for inviting this Review and for outstanding editing assistance. Chi-miigwetch to Kristen Carpenter for thoughtful comments on this Review.

  1. ^ See, e.g., Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 36–52 (2d Cir. 2021), cert. granted, 142 S. Ct. 1412 (2022) (contemplating scope of copyright protection under the Copyright Act); Sackett v. EPA, 566 U.S. 120, 125–31 (2012) (considering whether the federal government can extend its regulatory authority under the Clean Water Act to wetlands owned by private property owners).

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  2. ^ Michael Heller, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (2008).

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  3. ^ James Salzman, Drinking Water: A History (2012).

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  4. ^ When referring to the Indigenous Peoples of the United States, this Review uses the terms “Native American,” “American Indian,” “Indigenous,” “Native,” and “Indian” interchangeably.

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