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The pulverisation of Indigenous property: Jessica A. Shoemaker, ‘Fractionation by Design: Remedy Without Repair in Indigenous-Owned Trust Allotments’, Tulsa Law Review, 61, 1, 2025, pp. 63-90

26Jan26

Abstract: This essay returns to the persistent problem of fractionation—or extreme coownership—within Indigenous-owned trust allotments and argues that fractionation is a structural feature of the specialized federal trust property regime that applies uniquely in Indian country, not an administrative glitch. The Department of the Interior recently completed a ten-year land buyback program funded by its settlement of the Cobell breach-of-trust class action lawsuit. This effort aimed to consolidate fractional co-ownership interests back into tribal control. The Department recently released its final report from the buyback program, and this offers a natural reflection point. After a decade of effort and nearly $1.9 billion in investment, the buyback program transferred roughly one million undivided interests back to tribal ownership. Yet, the structural property dynamics that produced fractionation to begin with still persist, and—after all this investment—fractionation is predicted to rebound to pre-program levels again in only fifteen years. Drawing on a century-long case study of a single allotment on the Lake Traverse Indian Reservation (Tract 1305) and decades of research and attention to this problem, this essay shows how piecemeal remedies—like repeated rounds of probate reforms, purchase programs, and land-management process improvements—can stabilize symptoms temporarily but do not repair the deeper property system mechanics that produce these results. Fractionation drains scarce federal resources, fragments tribal territorial authority, and entrenches a federalized land regime at odds with Indigenous governance. The essay calls for repair rather than more doctrinal tinkering: land-based reconciliation led by tribal governments, funded and supported by the federal government, and deeply rooted in Indigenous self-determination and land ethics. Fractionation and associated reservation land and governance challenges are products of the federally created trust property system. This system has become so normalized that it can be mistaken for a natural constraint. But this is a system of the federal government’s own making—and one that can be remade in partnership with, and following the lead of, tribal governments.


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