Their kritik of property logics is flattening and disempowering. There are multiple properties that are not irredeemably entangled with hegemony.

Because of these twin influences of standardization and stability, property as a system can seem uniquely immune to reform. But when we scratch at these initial instincts, we see that the actual experience of property systems over time, and around the world, reflects a high degree of pluralism and dynamism. This Section explores this reality as a window to the broader range of available options for the future of American Indian land tenure.

1. Pluralism

Despite our deep ideas about the need for standardizing property institutions, property institutions are highly pluralistic in practice. Even with theoretically standardizing mechanisms like numerus clausus, the units of property that do exist are highly malleable. This is already evident in the initial creation of the special Indian trust status and historic Indian title. But more so, even in the presumptively standardized fee simple state system, property owners can use a range of flexible legal tools--including real covenants, equitable servitudes, contracts, business forms, and private trusts--to produce nearly any combination of bespoke terms and conditions on property ownership. 239 Thus, the information-cost-reducing justification for property's most standardizing attributes may never be fully achieved, and therefore need not limit reform strategies so much.240

Structurally, multiple property systems, each derived from distinct sources of authority, already coexist and overlap in the United States. 24' Even core aspects of non-Indian property law vary by state, and local governments impose a variety of location-specific land use regulations.2 42 In addition, a significant literature has explored the overlap of formal and informal legal and social orders for specific resource control rights.243 Families in the United States have multiple informal arrangements for property within their own households.24 4 Ranchers and other resource users routinely develop their own norms for trespass enforcement and control within specific geographic areas. 245 And other complex de facto property arrangements emerge everywhere from standing in line for general admission concert entry to traditions surrounding how one acquires and protects a roller derby name. 246

Moreover, rather than producing economic travesties, this kind of institutional flexibility and system-wide variation can be highly desirable. It makes property more robust, innovative, and responsive to a wide range of social needs.247 Standardization narratives assume material wealth maximization is the purpose of property, but this is neither the primary purpose of reservation land tenure nor the only function of property itself. I have already discussed how property law can fundamentally shape the way individuals relate to one another, engage with the physical world, and, by communicating important social hierarchies and relationships, translate social values to the real world.24 8 Designing these systems entails both material and nonmaterial values choices. 24 9 Beyond just economic objectives, property designs also reflect essential choices about environmental stewardship, historic preservation, individual liberties, shared community relationships, and distributional equity (or lack of equity) among all citizens, whether they are property owners or not. Discussions about this kind of values pluralism in property are robust, particularly in the progressive property literature. 25 0 This work reveals that property is highly pluralistic, and there is no single correct metric for assessing the best design of property relationships. 25 1

Buried in colonialism was a pervasive idea that Indigenous and European property systems could not coexist because Indigenous property rights were incompatible with English privatized interests, and "as a matter of the relationship between the two regimes: simply by existing, the one excludes the other."25 2 It may be true that some conflicts are inevitable to the extent the two regimes create literally contested claimants to the same physical space or object. For example, Canadian scholar John Borrows has emphasized the importance of physical mobility to Indigenous freedom. Borrows argues that Indigenous Peoples must be permitted "to freely move throughout our countries, and across the broad world of ideas," with flexibility to "relate to land and ideas [not] as others expect." 25 3 Although such freedom is essential, direct conflicts to a single resource may sometimes be best resolved through a unified property order or negotiations between legal orders.25 4 Apart from these direct conflicts, however, divergent property regimes and values can and do exist in multiple contexts.2 ss

There is no insurmountable reason tribal governments should be denied the freedom to explore different property law ideas and design their own property regimes to reflect a unique balance of values and concerns. In fact, given pressing environmental and equitable issues across the United States today, this landscape of exploratory innovation in property law may be essential to building greater resilience for all of us.

2. Dynamism

Outside of reservation territories, this kind of values pluralism is constantly negotiated and renegotiated in property and land use regulation, in both large and small ways. Despite narratives of stability, property law is actually highly dynamic. The key is to consider how property dynamism operates at different scales and across different institutional dimensions.

Much of the literature on property system change focuses on rare, cataclysmic transitions from commons or other forms of collective ownership to privatized property, or vice versa. 25 6 Even then, there is much we do not understand.257 This work focuses on very dramatic restructuring events and emphasizes changes that occur only along the "right to exclude" axis, moving for example from open access to an individual's right to keep out nonowners. Examples include the shift from common fields and feudalism to enclosure and then westernized private property in England,258 the transitions in and out of farm collectivization in the Soviet Union and the People's Communes in Mao's China,25 9 and Harold Demsetz's famous (and highly contested) narrative of the emergence of private rights to fur trading territories among the Indigenous populations of the Labrador Peninsula. 2 60

Other property reforms, however, have occurred in different ways but are no less important. Examples include the desegregation of white-only lunch counters in the South; the advent of new tenure structures including modern condominiums, cooperatives, and planned developments; and the introduction of important creditor protections for the family home. 261

In practice, property has adapted over time and continues to do so. 262 In fact, property must incorporate the capacity for reform, change, and exchange. 263 The consequence of perpetual stability is ossification, and this risk has to be balanced with responsiveness to changing conditions and demands. 2 6 Legitimate property systems must continue to evolve to respond to changing citizen needs and on-the-ground circumstances over time. 265 In fact, mainstream property scholarship has even debated recently whether the fee simple absolute itself is ready for a newer, changed incarnation-or should be abandoned altogether.266

Property change actually occurs across different variables and at different scales, reflecting more nuanced gradations in how property is defined and regulated. For example, instead of thinking of property as only changing in a binary way from open access to private, Shitong Qiao and Frank Upham have argued that exclusion exists along a spectrum that may change in myriad ways over time based on context.267 There is a whole range of hybrid institutional choices. For example, Scotland underwent a major land reform process in 2003.268 It now recognizes a public right to access private and public lands for certain beneficial uses, which limits a landowner's right to exclude sometimes, but not always, in nuanced ways.

In addition, property reforms occur not only along the exclusion axis but across a range of other property functions and rights. Abraham Bell, Gideon Parchomovsky, and others have argued that focusing only on the axis of exclusion (or on who owns the asset) misses many other evolutionary trajectories in property law. 27 0 These include changes in the boundaries of the owner's other rights of dominion (including the terms of an owner's rights to possession and use) and the asset configuration itself.271 For example, other notable historic land reforms have included changes in whether women can even own property,272 what inventions and ideas are available for intellectual property protection,273 and the invention of zoning law itself.274

Finally, property change can and does occur in different-sized events. Carol Rose has classified three levels of property system changes. The most radical shifts--like the abolition of slavery--require some kind of major revolution or political upheaval. 275 In the middle, various regulatory adjustments respond to smaller social changes, like modifications of environmental laws based on developing science or ecological concerns. 276 And finally, functioning property systems also require a host of little adjustments made on an ongoing, housekeeping basis as citizens, and sometimes courts, resolve everyday uncertainties and concrete disputes between stakeholders. 277

In all cases, property is constantly changing, experimenting, and evolving. The final challenge in thinking about the future of American Indian land tenure, then, is not whether a range of more creative reforms are possible (they are) but how best to get there. This is the subject of the penultimate Section.