Following up on my TNR piece and on this post with further information on the Individual Indian Monies scandal.
Jonathan Adler, a law professor at Case Western, writes:
I enjoyed your TNR piece on the IIM trust issue -- as well as your hits
on the Interior Department's gross mismanagement on your blog. I agree
that this is an important story that the press has largely overlooked.
My one comment is that I think your conclusion is slightly unfair to many
in the conservative/libertarian/property rights crowd who have worked on
Native American issues for years. Not only are there some -- such as
Terry Anderson and the folks at PERC -- who have written on Indian issues
for a long time, but the conservative alternative is not allotment --
under which beneficial title remains in the hands of the federal
government -- but actual property rights. Allotment created a trust
relationship between the Indians and the government, so it did not
prevent the sort of mismangement and malfeasance which is endemic in the
management of Indian affairs. Actual property rights, however, would
remove BIA and the federal bureaucracy from the picture. While you are
right that many conservatives have been AWOL on this issue, the same
could be said of most liberals, and those conservatives who have
addressed the broader issues raised by federal mismanagement of Indian
affairs have proposed reforms far more meaningful than a replay of the
In any event, I'm glad to see that someone is giving this issue the
attention it deserves.
(PERC is the Political Economy Resource Center, which has indeed done a great deal of important and admirable work on Indian issues, especially property rights issues (including, Jonathan helpfully notes, this and this.)
All of which I basically agree with, and have written in support of myself elsewhere. But it remains true that even PERC has (as far as I can tell) said nothing about the IIM case; that Norton continues to be on the wrong side; and that there hasn't been much libertarian noise making the argument Jonathan described. I'm trying to get some noise started.
Note about the difference between alottment and real property rights, which Michael Carr also wrote in about: I didn't have space to go into this in the TNR column, but it's quite true that the kind of ownership created in 1887 was much short of freehold property. The individual Indians own the land in an incomplete sense, which is central to the problem. Not only are the resource rights held in trust by the federal government; the land cannot be sold to non-Indians. In addition, the semi-inalienable interest an Indian was given in these lands was divided equally among heirs, such that by now there are a vast number of fractional shares of the ownership of each such lot of land. This is a problem in its own right-- it means makes rational economic use ofthe land almost impossible. But it has also contributed to Interior's inability to manage the trust accounts, at the same time that it has become part of the profeered justification for trusteeship; keeping track of this complex pattern of fractional interests is absurdly complicated.
On a different note: in the TNR piece I said that Sam Donaldson and 60 Minutes had done extended segments on the Cobell case, but that otherwise television news had been almost entirely AWOL. My friend Todd Seavey reminded me that John Stossel's hour-long special "John Stossel Goes to Washington," had been intended to include a segment about the IIM accounts, but that when Stossel began questioning Bruce Babbitt about them, the then-Secretary of the Interior stormed off the set. (Therefore none of the relevant Nexis search words led me to Stossel-- in the actual event the special included only about two sentences about lost Indian money, followed by an extended on-camera "I'm going to fire whoever scheduled me to do this interview" bit from Babbitt..)