Land Back
Legalities of a Collective Journey Home
Amber Morning Star Byars
“The only compensation for land, is land.”
-Winona LaDuke1
Land ownership is the prized cornerstone of American culture. Beginning with the arrival of European colonial powers on the shores of what is now known as North America, the idealism of Eurocentric property law swept over the continent like wildfire. This colonial invasion resulted in the theft of millions of acres of land occupied by Indigenous peoples since time immemorial. More than 500 years later, Indigenous nations are still fighting to maintain connection to their ancestral homelands. This fight is known as the Land Back movement,
created and maintained by Indigenous communities to regain guardianship over their ancestral homelands. The story of Land Back is not any one individual’s story to tell. It is the multifaceted story of a collective, with many aspects, ideas, and definitions. While examining the violent history of land theft in the United States, along with just a few of the many different facets of the Land Back movement, this article will focus on why Indigenous peoples should regain property rights over their ancestral lands and how it can be made possible. Additionally, this article will examine the legal obstacles that may potentially stand in the way. This article argues that the return of stolen homelands to Indigenous peoples can be the catalyst for much needed cultural, societal, and land-based healing.
I. BACKGROUND
a) Indigenous Precolonial Connection to Land
Western civilization relies heavily on natural resource extraction, extreme water consumption, and economic expansion at almost any cost to the natural environment.2In contrast, Indigenous societies have historically built and maintained a reciprocal connection with the land that required spiritual, physical, and emotional labor in return for resources.3 The precolonial connection between Indigenous peoples and the land was holistic.4 The land was not objectified and it was not viewed as a mere source of economic wealth; the land was viewed as a relative–a grandmother who provides sustenance for the people, requiring tender care and heartfelt devotion in return. 5
Historically and presently, Indigenous peoples around the globe have dedicated songs, dances, and ceremonies to the Earth to nourish and maintain a reciprocal relationship.6 This relationship is an integral aspect of Indigenous cosmology.7In the book Grandmothers Counsel the World, author Carol Shaeffer offers a description of this reciprocal connection as taught to her by the International Council of Thirteen Indigenous Grandmothers.8
Until recent history, in every part of the world communities of Indigenous peoples functioned as if one with their particular environment. As a result, the many tribes of this earth mirrored the lands of their origins and thus revealed the great diversity inherent in humanity. The unique culture of each of the thousands of Indigenous tribes evolved from their necessary participation with the animals, plants, and
climate of the land on which they lived. Traditions, rituals, stories, art, and music were created that were as specific to their place on Earth as the flowers and trees found there….Legends remind the tribes that all they know they learned by observing the various kingdoms of nature and that their role in return is to respect Mother Earth and be Her caretaker….Visions, dreams, prayer, ceremony, and ritual are the means to access the sacred Spirit World through nature, the Grandmothers tell us….Anyone who has ever been swept away by the beauty of a sunset or found an answer to a problem while communicating with nature has caught a glimpse of the worlds that are open to Indigenous peoples who foster this kind of knowing.9
Before European colonists invaded the ancestral territories of the Indigenous peoples of North America, this familial connection with nature was secure.10 The realms of Earth, elements, people, and spirits were not separate but were intertwined and interconnected, allowing for deep appreciation and mutual care.11
b) Invasion, Removal, and Loss
American history books consistently detail the narrative of the ‘discovery’ made by Christopher Columbus in 1492, and of the founding of the United States of America in 1776. These narratives routinely fail to include a comprehensive account of the profound harm and suffering Indigenous peoples experienced under the weight of the European invasion. By neglecting to include details of the rape, murder, and land theft perpetuated by European settlers in the sixteenth, seventeenth, and eighteenth centuries, many Americans are left without an understanding that this period in American history was an actual apocalypse for Indigenous peoples.12 Researchers and academics estimate that there were 60.5 million Indigenous peoples living throughout the Americas before the invasion of European colonists.13 In the years between 1492-1600, an estimated 90 percent of the Indigenous population was eradicated by disease and violence.14
From the initial settlement onwards, the vast majority of the ancestral homelands of hundreds of tribal communities passed out of the hands of its original custodians and into the ‘ownership’ of European settlers.15 While some of the land was sold to the settlers for food, blankets, and gold, or transferred by treaty, much of it was taken by forced removal, violence, and illegal takings, i.e., treaty violations.16 Even those treaties signed ‘willingly’ by tribes, many tribal leaders were under duress during negotiations, their treaty signatures motivated by pleas for safety–pleas for the raping, stealing, and murdering to cease.17
The Removal Era, beginning in 1830 with the signing of the Indian Removal Act by U.S. president Andrew Jackson, resulted in an estimated 100,000 Indigenous peoples from the Choctaw, Cherokee, Creek, Chickasaw, and Seminole nations being forcibly removed from their homelands and marched along what it now known as the Trail of Tears.18 Tens of thousands of individuals died from disease, starvation, and exposure, and were buried in unmarked graves along the Trail, which stretched 2,200 miles across the southeastern United States.19 U.S. National Park Service records show that the Tribes were to be compensated for the land takings and given new accommodations upon arrival in Oklahoma, providing an incentive for the Tribes to move.20 But community remembrance of the Five Tribes, passed down through decades of oral traditions, details a more sinister incentive: the promise of death or torture at the hands of U.S. cavalry if they did not vacate their lands.21
With the forced removal and eradication of hundreds of thousands of Indigenous peoples from their ancestral homelands came tremendous cultural loss.22 There were approximately 2000 Indigenous languages spoken in 1492; there are now an estimated 170 spoken with a projection that only 20 will be fluently spoken by the year 2050.23 As languages vanished along with traditions, songs, and ceremonies, the ancient place-based knowledge carried by Indigenous peoples for millennia began to die with the Elders who held it.24 Indigenous peoples quickly realized that if their knowledge was to be kept alive, they would have to work fiercely to protect it in this new colonial world that viewed such knowledge as witchcraft or devilish sorcery.25
The people were not the only ones to endure great loss and suffering; the North American land also experienced immense environmental and ecological harm under the weight of Euro American settlement.26 When the colonists first arrived, the biodiversity and abundance of the land was both enchanting and enticing.27 Scholars describe this period in North America as the Era of Abundance, lasting from 1500-1849.28“Passenger pigeons flew overhead in endless thundering flocks; salmon choked the rivers, to be pitch-forked out as fertilizer; huge herds of bison, antelope, and elk roamed the prairies; whales and seals yielded endless shiploads of oil to burn in lamps.”29 Euro-American settlers assumed the this bountiful abundance was virtually infinite, an unlimited supply of resource available for consumption.30 With an increased presence of Euro-American settlers holding this false assumption, the health of the land began to decline.31 Described as the Era of Overexploitation, the years of 1850-1899 in American history detail a drastic decline in plant and animal life in North America:
This era [of overexploitation] was one in which the North American continent was transformed from a land mass with vast areas unsettled or even unexplored by Europeans to one with cities and farms scattered everywhere and held together by a spidery network of railroads, roads, and telegraph wires. It saw the sudden settlement of the West Coast (catalyzed by the discovery of gold in California), the Civil War, the disappearance of eastern forests, an enormous influx of immigrants from Europe, Asia, and Africa, and the vast expansion of industry and technology. This increase in human population, combined with the technology of the early industrial era and the demands of a market economy, caused wildlife populations to plummet from a combination of unchecked exploitation and environmental alteration. 32
Some examples of the ecocide committed by the Euro-American settlers include: 1) The systematic slaughter of vast migratory herds of bison across the American landscape, particularly in the Great Plains region; 2) Extinction of the passenger pigeon. A bird whose pre-colonial population was thought to have been in the billions, with the last one dying in captivity in 1914; 3) Decimation of egret and heron populations by hunters who sold their plumes for ladies hats; 4) Vast reduction in large predator populations, such as grizzly bear, wolves, and mountain lions; and 5) The disappearanceof salmon and shad from many eastern rivers, caused by the blockage of their runs by dams, factory waste, and over-fishing.33
The ecocide that occurred during the Era of Overexploitation is unsurprising given the agrarian and early industrial societal attitude of the Euro-American settlers living during this era. “Nature was regarded as something that got in the way of civilization and ‘“progress”’, and a source of goods to sell on the market. The agrarian mindset of the time was often frightened by the abundant wild animals and uncontrolled wild ecosystems, and thus thought nature had to be tamed and controlled.”34 This expansion of European settlement in North America nearly annihilated the bountiful state of the land as Indigenous peoples had known it for thousands of years.35 For all those who survived this apocalypse of invasion, removal, and great loss, the world would never be the same.
c) A New Colonial Reality
1. The Birth of American Property Law and Federal Indian Law
Justification for the theft of Indigenous lands perpetrated by Euro-American colonists during the birth of the United States was first set forth by the papal bull of 1493.36 Beginning with the papal bull, Spain’s desire for conquest led to the Requerimiento of 1513, a dehumanizing declaration enforced by the conquistadors that justified the murder and religious subjugation of the Indigenous population of the ‘New World.’37 With the Spanish conquistadors came the paternalistic notion that it was in the best interest of the Indigenous tribes whose territory they invaded, for the sovereign of Spain to undertake the administration of their communities, providing them with prefects and governors.38 This interference, among others, was justified based on the assumption that Spain had an imperial right, conferred by a Christian God and enforced by state militia, to impose their religion, culture, and societal structure upon Indigenous peoples over whom the Spanish deemed themselves racially and religiously superior.39
Similar paternalism and the notion of racial supremacy was later ratified by the Doctrine of Discovery and by the Marshall Trilogy––Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832)––three judicial opinions set forth by Justice John Marshall of the U.S. Supreme Court that would become the holy trinity of American property law.40 By portraying Indigenous peoples as violent, uncivilized savages, Justice Marshall set forth the rule that Indians only have a ‘right of occupancy,’ and cannot hold fee simple title to land. The title to the land upon which Indians have right of occupancy is instead held in trust by the U.S. government.41 Legendary tribal attorney Walter R. Echo-Hawk details this case history and the development of the Marshall Trilogy in his book, In the Courts of the Conqueror:
The Supreme Court has relied upon doctrines of conquest to divest Indian tribes of title to their land and to uphold government extinguishment of aboriginal title, confiscation of aboriginal land, and laws that exercise dominion over Indian peoples and their property…. It began in the courts with Johnson v. M’Intosh (1823), when John Marshall crafted the rules for acquiring Indian land under the doctrine of discovery. According to Johnson, the multipurpose doctrine did several things. It operated to vest legal title to Indian lands in the United States; it granted the United States limited sovereignty over Indian Nations; and it empowered the government to obtain Indian land by purchase or conquest…. Marshall wrote that “title by conquest is acquired and maintained by force” and the “conqueror prescribes its limits.” This rule flew in the face of international law of the era, since bare conquest has never been considered sufficient to convey good title under international law. The law of nations has always forbade the use of force simply to acquire territory. Thus, Marshall was forced to devise a creative exception to the rule that conquerors must respect property rights in the land they invade (i.e. we do not own Iraq merely because we invaded that nation). He said that the normal rules of international law governing the relations between the conqueror and conquered are “incapable of application” in the United States. Why? Because the settler state was confronted by Indian nations composed of “fierce savages whose occupation was war.”
After Johnson came two cases to complete the Marshall Trilogy, Cherokee Nation and Worcester.42 These two cases furthered the racist narratives from Johnson but also recognized inherent tribal sovereignty.43 In Cherokee Nation, the court reiterated Marshall’s opinion that discovery grants the right of dominion over the conquered nation and that conquest provides such rights in cases of war.44
However, in Worcester, the Court stated that while Indian tribes are “domestic dependent nations,” they had never been divested of their inherent sovereignty.45 Thus, the tribal-federal relationship is one that resembles ‘that of a ward to his guardian.’46 The court elaborated: “the settled doctrine of the law of nations is, that a weaker power does not surrender its independence–its right to self-government, by associating with a stronger, and taking its protection.”47 Worcester held that the Cherokee Nation, which placed itself under the protection of the United States in treaties, “retained its self-government but was nevertheless a domestic dependent nation, a community not belonging to the confederacy, but existing within it.”48 The guardian/ward relationship set forth in Worcester ratified the branches of property law and federal Indian law that resulted in the federal trusteeship of Indian lands.49 Not long after the Marshall trilogy came a second trilogy of cases—Ex parte Crow Dog, 109 U.S. 556 (1883); United States v. Kagama, 118 U.S. 375 (1886); and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), which cemented the plenary power doctrine.50 These cases, known as the Plenary Power Trilogy, examined the boundaries of congressional and executive power over tribal lands, tribal affairs, and even the lives of tribal members despite their sovereignty.51 Essentially, under the plenary power doctrine, the United States can create legislation concerning Indians without regard for constitutional restraints, almost always without the consent of tribal nations.52
While it is true that the area of federal Indian law is in constant flux due to the evolution of American and international law and policy, one fact remains unchanged–title to the vast majority of tribal lands remains in the hands of the U.S. government.
2. Other Effects of Colonization
Outside of the legal implications regarding Indian land ownership, the physical, emotional, and spiritual health of Indigenous peoples has been immeasurably altered by colonization.53 Obesity and diabetes caused by decades of starvation and a forced colonial diet of commodity foods began to plague Indigenous communities.54 Suicide and mental health disparities became of great concern. Today, American Indian and Alaskan Natives have higher rates of suicide than any other ethnic demographic in the United States.55 As illustrated by Indian Health Services, “lower life expectancy and the disproportionate disease burden exist perhaps because of inadequate education, disproportionate poverty, discrimination in the delivery of health services, and cultural differences.”56
With the new colonial reality also came spiritual deprivation.57 Beginning with the Spanish inquisition, the criminalization of Indigenous ceremony and spirituality resulted in the loss of many songs, dances, and ancient traditions.58 It wasn’t until the Jimmy Carter administration that Indigenous peoples gained the legal right to freely practice their religion,59 when Congress passed the American Indian Religious Freedom Act of 1978.60 The Act aimed to restore the “inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.”61 However well-intended the Act was, it fell short due to the fact that it did not offer protection for Indigenous sacred sites.62
At this point in colonial history, the profound and irreversible damages inflicted upon the Indigenous peoples of so-called North America by Euro-American colonists may never be fully acknowledged, discussed, or made right. This has largely left Indigenous communities to find repair for themselves, with hundreds of years of oppression, assimilation, and genocide to work through. Some call this healing work ‘decolonization.’63 Others call it ‘Indigenization.’64 Regardless of the terminology, the defiant act of Indigenous survival is a combination of resistance, determination, and prayer. What about resilience? Yes, Indigenous peoples are indeed resilient. However, while the term ‘resilience’ might signify strength and positivity, many Indigenous people are tired of continuously overcoming adversity only to be congratulated for their resilience.65 This is known as ‘resilience fatigue,’ and it has been compounded with modern acts of neocolonialism, resulting in continued acts of violence towards Indigenous peoples. Thus, Indigenous peoples are still in a state of constant resistance, defiance, and determination. It is this determination that fuels the Land Back movement.66
II. LAND BACK–What Does it Mean?67
Rematriate68
[ree-mey-tree-eyt]
noun. re·ma·tri·at·ed, re·ma·tri·at·ing.
A return to a spiritual way of life with respect for the Earth.
The website for the Indigenous organization NDN Collective describes Land Back as “a movement that has existed for generations with a long legacy of organizing and sacrifice to get Indigenous Lands back into Indigenous hands.”69 Tribal attorney Ruth H. Hopkins writing for Teen Vogue describes Land Back as “a literal call for the return of Native lands to Native peoples, and a profound summation of anti-colonial thought.” 70 The Land Back movement even has its own Wikipedia page, which describes the movement as “a campaign that seeks to establish political and economic control to [I]ndigenous people in the United States and Canada over land that had historically belonged to them prior to colonization following the Age of Exploration.”71
The return of political control to Indigenous nations is beyond the scope of this article, as are the issues surrounding federal recognition, state recognition, and unrecognized tribes. Taking into consideration all the different ideas, sentiments, and initiatives of the Land Back movement, this article will primarily focus on Land Back for the benefit of federally recognized tribes in the context of their ancestral territories within the U.S. While each tribe will have their own idea of
what Land Back looks like for them, visions for Land Back are generally visions of rematriation, i.e., returning to a spiritual way of life with respect for the Earth.72 In reference to land, tribal Elders have described this process as returning the land to itself, i.e., allowing the land to return to a state of health and abundance while simultaneously providing care for the land through ancestral practices.73
Some specific examples of Land Back initiatives include the return of so-called ‘Mount Rushmore’ and the He-Sapa (Black Hills) of South Dakota to the Lakota, the removal of the border wall from Tohono O’odham territory in southern Arizona, the abolition of the Line 3 and Line 5 pipelines from Anishinaabe treaty territory in northern Minnesota, the abolition of TC Energy’s Coastal Gaslink pipeline in Wet’suwet’en territory, and protection from logging for the as Ireland, Australia, New Zealand, and Brazil.75
The story of Land Back does not belong to any one individual, organization, tribe, or country. Rather, it belongs to all the Indigenous peoples around the world seeking reconnection to their homelands, reclamation of their culture, and reparation for centuries of injustice inflicted by colonial rule. Land Back is a true collective vision with many aspects, ideas, sentiments, and definitions; it is a multifaceted movement with a plethora of goals and avenues to success. For many Indigenous peoples, Land Back does not solely represent the return of land or property rights. Land Back is a demand for the return of all that has been taken by colonization, assimilation, and neocolonialism––it is the return of language, art, ceremony, song, dance, and tradition. It is protection for the trees and plants, buffalo, salmon, and heron. It is the return of stolen sacred cultural items from museums and private collections. It is the return of peace for Indigenous men and Elders, and it is the return of safety for Indigenous women, children, and Two Spirit community members. Land Back is Indigenous autonomy, agency, and true sovereignty, and it is synonymous with the liberation, safety, and protection of Black lives.
Perhaps one of the most powerful aspects of the Land Back movement is the possibility that it can positively affect the world at large. Land Back is not represented by the exclusivity of Euro-American property ownership, rather it reflects a better world and environment for all. This includes, 1) healing from historical trauma possessed by both Euro-American settlers and for the Earth. With Land Back comes the possibility of a healthy land base tended by healthy people of all backgrounds with one goal in mind: to maintain the land in such a manner that it will sustain the next seven generations to come. As Indigenous peoples have understood since time immemorial, the Earth does not belong to anyone, rather it belongs to everyone—even the ones who have passed on and those yet to be born.76
III. Why? – A Moral Case for Land Back
Land Back has a powerful moral basis, and it also has a complicated legal expression. From an Indigenous standpoint, the moral basis is inseparable from any judicial, legislative, or litigatory perspective. This section will focus on the moral basis for Land Back while section four will examine the legal methods and complications tribes should consider when pursuing land return.
a. A Collective Journey Home – Healing for Both Indigenous Peoples and Euro American Settlers
The return of ancestral lands to Indigenous nations involves both a physical and spiritual journey home. The reconnection to land and reclamation of culture signifies healing and rebirth. For the Indigenous descendants of those who survived the invasion of European colonial powers, it is a chance to both literally and figuratively lay to rest the remains of over 500 years of tragedy. This much needed healing can also occur for Euro-American settlers.77 Land Back does not solely benefit the Indigenous community, for it can also provide reconciliation for Euro American settlers residing in America.78
When Euro-American settlers give land back to Indigenous peoples, they acknowledge that they have benefited from the theft of Indigenous land. They also recognize that their ancestors, at some point in history, came to North America from another place.79 This then begs the question, where did they come from? Where are their ancestral homelands? What happened to their ancestral traditions, origin stories, songs, dances, and ceremonies? Essentially, what culture did their ancestors hail from?
Some Euro-American settlers resist these questions, reaching instead for the catch-all nationalist narrative that proclaims, “I am proud to be an American!” Okay. But what does that mean exactly? For many, it means that America is all they have ever known and all they are willing to know. It represents a reluctance to look at their ancestors’ colonial history, impact, and the ways in which they, as settlers, continue to benefit from the systems of white supremacy upon which the United States was founded. Participation in chattel slavery, rape, murder, and land theft may be conveniently left out of family narratives. Consequently, both BIPOC and Euro-American settlers suffer perpetual cycles of harm caused by centuries of denial. When discussing Land Back in this context, it becomes apparent that Indigenous peoples are not the only ones in need of a journey home.
Sophia Maravell, a settler and ally living in Virginia discusses the Land Back movement and what returning wealth and land to Indigenous nations has means to her:
Land Back has inspired me to embark on a learning journey and physical journey to find out more about my ancestral homeland. I researched and reconnected with family in southern Greece where my father's family has been for at least 500 years. I keep in mind that there is no such thing as purity because as you go back further in time your family tree widens like the top of a funnel. However, there was a part of me that felt a deep sense of belonging as soon as I returned to the village where some of my relatives live to this day, tending 500-year-old olive trees in our family's groves. There was a recognition in my body of the tastes, the smell of salty air from the sea; my hair and skin started to glow. It was clearly an environment that my body became alive in. This feeling made me wonder, how do I fill this void that ultimately stems from a yearning to belong, to be held, by a place, by a community? To be able to be held and to have something to hold on to. I hold on to the remnants of what was once an intact community, the culture of my ancestors in Greece, pre-roman, and Christian colonization, where origin stories, deities and myths were woven into places and their people. I think White Nationalists are looking to fill this same void stemming from this similar existential question of belonging that is stoked by the colonizer’s disconnection from their own ancestral homelands. This is a pressing question today because the issue allows for colonialism and all its many forms of violence and harm towards people and the earth to continue, and it will continue if this wound within white colonizers continues to remain un-acknowledged, un-examined and un-healed.80
The white nationalism that Maravell speaks of is what legendary civil rights activist Ruby Sales calls a “spiritual crisis in America–a crisis of meaning.”81 While the ‘proud-to-be-an American’ narrative speaks strongly to nationalism, it does nothing to create a connection between Americans and their precolonial ancestral roots. The “meaning” Sales speaks of can be found through identifying exactly who white people were before they were labelled as “white”– before they were as homogenized as Native Americans now are.82 As Maravell describes, making the journey back to her ancestral European roots has allowed her the opportunity to identify both physically and spiritually with something more than American nationalism.83 Maravell rediscovered the community from which her family originated and thus, became aware that she, like the Indigenous peoples of North America comes from a bountiful culture, rich with language, art, regional food and recipes, song, dance, tradition, and connection to land.84
The need for ancestral reconnection for Euro-American settlers is synonymous with the need to acknowledge the past and to process what is known as “white guilt,” the unspoken responsibility felt by white Americans for the harm and damage caused by their ancestors.85 Recounting his family’s own colonial history, settler and ally Douglass DeCandia asserts that through supporting the Land Back movement, deep healing can occur within the psyche of the Euro-American settlers:
One side of my family came here from France, Scotland, and England. They have been on this continent for a very long time, a few hundred years, and their history is deeply rooted in the initial settlement and colonization of Turtle Island. I know that I have ancestors who were involved in the building of the railroads and the manufacturing of gun powder and things like that. That side of my family has internalized the atrocity and trauma of being witness to the process of colonization. That internalized coloniality has become a part of the family body and it has been passed down through generations because it has not been reckoned with. It still lives in our bodies. There is a lot of alcoholism, depression, and mental illness, and I truly believe it is not separate from this [colonization]. There is a spiritual disease that is passed down in settler lineages because there has not been reconciliation. The trauma and harm have been silenced and repressed. And so yes, I think there is healing for white folks to be found in supporting Indigenous sovereignty and resurgence, and Land Back in a broader sense.86
These testimonials offer a glimpse into the great potential for healing amongst Euro American settlers. Land Back represents a journey home not only for Indigenous peoples, but for all those living on this continent whose ancestral roots have been severed.
b. Mending Societal Wounds – Healing Between Indigenous People and Euro American Settlers
With conversations in America surrounding the topic of reparations for Black and Indigenous people steadily becoming more prominent and publicized, it is important to examine two key elements of any act of reparation, 1) acknowledgement of past injustices, and 2) the desire to right the harm inflicted by those injustices.87 In the article Making Reparations Possible: Theorizing Reparative Justice, author Margaret Urban Walker provides that the idea of reparations is an ancient, universal, and a basic intuition of justice.88 Walker describes Western philosophy as having a foundational, ancestral account of justice in repairing wrongs, as discussed by Aristotle in Nicomachean Ethics.89 Aristotle institutes the idea that injustices are set right by returning to the injured person that which restores equality, i.e., giving back to the person who has been wronged something they possessed before they were harmed.90
By returning land to Indigenous peoples, Euro-American settler families and individuals not only right the wrongdoings of the past, but they can also potentially forge powerful and long lasting relationships with tribes, allowing both parties to heal from centuries of conflict. Land rematriation is an essential element of reparative justice in America due to the tangibility of the action. While Euro-American settlers cannot return lost languages, traditions, or the countless Indigenous lives that were taken, they can return land. Reconnecting Indigenous people to their sacred sites and ancestral homelands is a very real act of reconciliation and healing.
c. Environmental Healing – Regeneration for the Earth
During this current, unprecedented time in history, as temperatures rise and natural disasters intensify, it is painfully obvious to climate scientists and environmental advocates that there is an urgent need for drastic action if we are to preserve the Earth as we know it for the survival of future generations.91 The responsibility of this implemented change should rightfully fall upon on the shoulders of the world’s wealthiest countries and their leaders, as the demand for fossil fuel extraction is largely responsible for the warming of the Earth.92 However, even with the environment in peril, many world leaders have neglected to crack down on fossil fuel extraction and implement any substantial legal requirements for renewable energies.93 Oceans continue to rise, storms and wildfires continue to worsen, and the Indigenous peoples of the world continue to be disproportionally affected.94 It is those same Indigenous peoples on the frontlines of the climate crisis who are fiercely fighting for the protection of the Earth. The United Nations University explains:
Although indigenous peoples’ “low-carbon” traditional ways of life have contributed little to climate change, [I]ndigenous peoples are the most adversely affected by it. This is largely a result of their historic dependence on local biological diversity, ecosystem services and cultural landscapes as a source of sustenance and well-being. The very identity of [I]ndigenous peoples is inextricably linked with their lands, which are located predominantly at the social ecological margins of human habitation — such as small islands, tropical forests, high-altitude zones, coasts, desert margins and the circumpolar Arctic. Here at these margins, the consequences of climate change include effects on agriculture, pastoralism, fishing, hunting and gathering and other subsistence activities, including access to water.95
This article does not suggest that the responsibility of combatting the climate crisis should solely land in the laps of Indigenous peoples, but it does argue that Indigenous stewardship is a powerful method of combatting further degradation of the Earth and atmosphere. In 2018, National Geographic reported that while Indigenous peoples make up less than five percent of the total human population, “they manage or hold tenure over 25 percent of the world's land surface and support about 80 percent of the global biodiversity.”96
A recent example of Indigenous biodiversity defense came on November 16, 2020, when former U.S. president Donald Trump formalized plans to allow oil drilling in the Arctic Refuge, a place which is held sacred by the Gwich’in people and is home to more than 250 species such as polar bears, caribou, and Arctic foxes.97 The Refuge is considered to be some of America’s last pristine wildernesses.98 In response to Trump’s authorization, the Gwich’in Steering Committee released a statement saying, “[A]ny company thinking about participating in this corrupt process should know that they will have to answer to the Gwich’in people and the millions of Americans who stand with us. We have been protecting this place forever.”99
Lamentably, it is true that some tribal nations also perform resource extraction on tribal lands, such as oil drilling, fracking, and mining. The choice to do so is part of the inherit sovereignty of Tribes, i.e., the agency to stipulate and control industrial development on their territories, on their terms. Environmental conservation efforts made by Indigenous peoples on a global scale should not be negated simply because certain tribal nations have chosen to participate in natural resource extraction. Those in leadership of the tribal nations who choose to participate in this type of capitalism should reflect upon where and how they became dependent 22 on fossil fuel extraction, and how they can equitably share the burden of mitigating climate change.
For many Indigenous peoples, the monetary value of land pales in comparison to the spiritual and sacral value. Put simply, land is the basis for all life. Land is what binds together the past, present, and future. It is because of this perspective that Indigenous communities have held tight to the ancient environmental knowledge that can assist in maintaining balance within Earth’s delicate ecological systems. 100
Undoubtably, the Earth has the regenerative power to heal itself. 102 However, because of the misuse and abuse of natural resources, the Earth is now in a situation where natural restoration is becoming impossible.103 As many scientists have warned, humanity may on the brink of mass extinction.104 Human beings alive at this time in history carry the burden of ensuring that no further degradation occurs and must work to repair the damage already done. A reciprocal way of living with the Earth must return for the sake of those yet to be born. The recovery and legal recognition of Indigenous land rights is essential to ensuring the survival of future generations.
IV. How? – Legal Methods for Land Back
While the need for reparative justice is still a prominent discussion within Indigenous communities, some will argue that reparations have been paid in the form of the Indian Land Claims Commission (ICCA) of 1946.105 It is important to understand the history that led up to the ICCA to fully understand why Indigenous nations are still demanding reparations decades after the United States government supposedly paid them.
In 1878 the House Committee on Indian Affairs reported that tribes had pressed more than $6,000,000 in claims for trespass and property damage by American citizens since the end of the Civil War. Tribes were unable to prosecute these grievances directly because they were still classified for many purposes as nations under treaty, outside of the routine jurisdiction of American courts. Congress in 1855 established a special Court of Claims to hear citizens' complaints against the general government…. This individualized process had many apparent defects. First, Congress was reluctant to devote the necessary energy and time to each tribal claimant's case, so that the adjudications of many meritorious grievances were delayed for years, if not indefinitely. Second, the Department of Justice, charged with defending the United States before the Court of Claim vigorously opposed special jurisdictional bills on the grounds that they cost too much. Third, when tribal claimants succeeded in overcoming Administration opposition and congressional inertia, they often found the Court of Claims reluctant to consider their cases seriously. Fourth, nearly half of all specially authorized tribal claims were dismissed, interest on awards rarely was paid, and tribes recovered only about one percent of what they considered. Finally, most dismissals were not on the merits, but on the grounds that the claims made lay outside of the terms of the special jurisdictional bills won from Congress. Consequently, after taking years to obtain authorizing legislation, most tribes reaching the Court of Claims simply were sent back to Congress empty-handed.106
The dissatisfaction and disappointment with these individualized land claims reached a pinnacle in 1940, when Congress hastily created a special administrative tribunal to review tribal claims.107 Some attribute this congressional decision to World War II and Hitler’s famous reference to the American Indian genocide as justification for the invasions of Czechoslovakia and Poland.108 This attempt at smoothing over centuries of land theft on behalf of the United States government resulted in the creation of the ICCA.109 It was during this time period that Indigenous nations were given no choice but to accept the United States’ definition of what constituted reparative justice.110 While the ICCA did provide relief to some tribes, for many it largely felt like a continuation of past practices of deceit, rather than a divergence from it.111 Thus, tribes have been largely left up to their own devices to try to regain their land back. The following subsections discuss the methods some tribes are utilizing in the fight for their ancestral territories. It is important to note that these methods are listed in the order by which a tribal nation is most likely to succeed in reacquiring their land, beginning with the most likely.
A. Purchase
While it is perverse and unjust for Indigenous nations to have to buy back land that was stolen from them, tribes and tribal organizations are nonetheless working hard to purchase their ancestral lands back. Winona LaDuke of the White Earth Land Recovery Project describes purchasing land back as the “fastest and easiest” way to regain control of lands.112 While there are complex consequences to putting reacquired lands into trust, such as jurisdictional complications and lack of fee simple title, purchasing land to put into federal trust assures that the lands will be under tribal oversight and exempt from taxation by local and state authorities.113
Unfortunately, states often fight these trust acquisitions arguing that they still must provide tribal lands with state services such as water and sewage but will lose out on substantial tax income. In 2008, the State of New York and two counties filed a federal lawsuit to block the U.S. Department of Interior from placing approximately 13,000 acres into federal trust for the Oneida Tribe.114 Their claims were thrown out by a federal judge in September of 2009.115 Regardless of state opposition, tribes are still taking action to purchase land.116
Funding for tribal land purchases can come from a few different sources, some are internal, such as income from tribal casinos, and others are from outside sources, from organizations and private donors. Indigenous organizations like the Indian Land Tenure Foundation have successfully led Land Back campaigns that have resulted in millions of dollars in grant money and direct program services benefitting Indigenous communities across the United States.117 Non-Indigenous organizations have also contributed to the Land Back movement. 118 Resource Generation, an organization that encourages young people in the U.S. who possess wealth or class privilege to “become transformative leaders working towards the equitable distribution of wealth, land, and power,” has created a Land Reparations & Indigenous Solidarity Toolkit.119 The Toolkit lists resources, different Land Back initiatives happening across the United States, and information on how settlers with wealth or class privilege can align themselves with the Land Back movement through the redistribution of wealth.120
Another method of collecting funds to purchase land is through the Real Rent, or ‘voluntary land tax’ fundraising model.121 Real Rent is a method in which Americans, specifically settlers living on stolen or unceded Indigenous lands, can voluntarily pay monthly rent to the tribe from which the lands were taken.122 The Duwamish Tribe, working with outside nonprofit organizations Network for Good and the Duwamish Solidarity Group, were able to create a website to support their Real Rent model.123 The site states that while “the city named for Duwamish leader Chief Seattle thrives, the Tribe has yet to be justly compensated for their land, resources, and livelihood.”124 All funds raised through the Duwamish Real Rent model go directly to the Tribe, allowing them to purchase land and support cultural revitalization efforts.125
The main benefit of a voluntary land tax is that the tribe can use the money to buy ancestral lands that suit their present-day needs, e.g., lands adjacent to an existing reservation or tribal headquarters, or in a location that holds significant sacral value to the tribe.126 The issue of donation discussed below often involves a situation where non-Indigenous families or individuals donate land to tribes, but the land is not in a location that is ideal for the tribe.127 The Real Rent model allows tribes the freedom to purchase land in a location that best suits their needs.128 Other examples of voluntary land tax efforts include the Shuumi Land Tax and the Wiyot Honor Tax.129
B. Donation
The process of land donation will require mindfulness on behalf of the donor in the areas of communication and relationship-building. Additionally, a donation of land in the U.S. will potentially involve some legal complications for both the donor and the donee, mainly in the form of tax consequences. When beginning the process of land donation, both the donor and donee may want to consider the following information.
1. Will the tribe want the land?
When considering a land donation, a donor might first ask themselves, will the tribe want this property? It may seem obvious that tribes would want their stolen land back, however, depending on the location and condition of the property, that may not always be the case.130 For example, acquiring a property located in a city may not be feasible for a rural tribe. Thus, forcing the tribe to turn around and sell the donated property.131 A donated property in an unideal location or in a dilapidated condition may create more difficulties for a tribe than the property is worth.132
The question of whether a tribal nation will want to receive a land donation will often depend on whether the tribe has the capacity to receive the land.133 Some tribes may not have the funding or leadership capacity to devote to the legal processes of receiving a land donation, e.g., hiring legal counsel, dedicating time and oversight of the process, and deciding what to do with the land once it has been donated.134
A certain amount of research will be required to identify the proper tribal donee. A donor will need to research the precolonial and colonial history of the land upon which their property sits to identify the specific tribal community who might want to receive the land back. In addition to libraries and law libraries, there are multiple online resources that can help identify different tribal territories.135 Once the tribe or tribal organization has been identified, further research can be conducted to find the current information of any existing tribal headquarters and leadership. From there, a donor will want to reach out to form a respectful relationship with the tribe or tribal organization and begin a conversation regarding the land to be donated.
2. Land Status – What will the tribe do with the land?
A prominent factor of Land Back is the status of tribal land, and a tribe’s decision of what to do with the land once it is returned. The ramifications of the Marshall Trilogy resulted in the guardian/ward relationship between tribal nations and the U.S. government.136 Thus, reservation lands upon which tribes reside are not owned in fee simple, instead they are held in trust by the United States.137 Any lands not held in federal trust can be owned in fee by a tribe or can be incorporated into a business organization, such as a non-profit.138 This complicated element of land status leaves a tribal donee receiving land with a challenging decision: will they convey it into federal trust under the U.S. government, own it in fee and pay taxes, or incorporate it into a business organization? There are both benefits and downsides to putting the land in federal trust and there are both benefits and downsides to owning the property in fee or under an organization.139 Making this decision will require a tribe to consider the value of the land, what the land will be used for, jurisdictional issues, and tax consequences.
3. Tax Consequences
If a tribe chooses to convey donated land to federal trust, the tribe will not be subject to state property tax.140 If a tribe owns the land in fee simple, it will be liable for state property tax.141 This leads many tribes to instead create a nonprofit organization under which the land may be exempt from state property tax if the organization meets certain federal requirements for exemption.142
In addition to state property tax, there are also tax consequences for both the donor and the donee, as a result of the gift status. When beginning a process of land donation, one of the first steps a donor will want to take is to hire a real estate lawyer to assist in the transfer of title, and to walk each party through the potential tax consequences. For the donor, tax consequences will only kick in if the property is worth more than $12 million.143
The issue of tax can get complicated when a tribe or individual chooses to own the donated land in fee simple. According to U.S. Internal Revenue Code, a donee will receive the property with the carry over basis from the previous owner.144 This means that the donee will be required to pay taxes on the difference in appreciation should they choose to sell the property in the future.145 For example, if a non-Indigenous family bought a property ten years ago for $100,000 (this is referred to as the “basis”) but the property has appreciated and is worth $300,000 at the time of donation, the tribe to whom it is donated will be required to pay taxes on the $200,000 difference if/when they choose to sell the property.146 This is because the $100,000 basis from the previous owner will carry over to the new owner.147 In sum, if the donated property is appreciated, it is considered a tax deferral of gain recognition.148 Unfortunately there is no way of getting around the issue of appreciation and there is no way to predict appreciation of fair market value. Consequently, it may be more advantageous for a tribal donee to place the land in federal trust.
C. Federal Legislation
As trustee of Indian reservation lands, the United States government has previously made large legislative distributions of land to tribes through both congressional acts and presidential orders.149 Some examples of these land returns include, 1) the Sandia Pueblo Settlement Technical Amendment Act of 2014, passed to correct a surveying error which resulted in the conveyance of approximately 710 acres of land on Sandia Mountain to the Pueblo, 2) the Timbisha Shoshone Homeland Act, enacted by Congress on January 24, 2000 that conveyed 314 acres within the Death Valley National Park in federal trust to the Tribe along with other lands totaling approximately 1,640 acres, and 3) the Grand Canyon National Park Enlargement Act of 1975 that returned 185,000 acres of land on the rim of the canyon, adjacent to the National Park, to the Havasupai Tribe.150
Perhaps one of the most well-known examples of land returned by the federal government was the return of Blue Lake, along with 24,000 acres of surrounding national forest land, to the people of Taos Pueblo, and conveyed into federal trust in 1975.151 The story of this land return was made famous by the work of LaDonna Harris, a Comanche civil rights activist and founder of Americans for Indian Opportunity.152 Known to many Indigenous people as “Mama LaDonna,” Harris was the wife of U.S. Senator Fred Harris of Oklahoma.153 After moving to Washington D.C. with her husband following his election, Harris began to discuss opportunities for land return with several U.S. politicians, including President Richard Nixon.154 By working closely with tribal leadership from Taos Pueblo, Harris co-orchestrated the creation of H.R. 471, which was sponsored by her husband and signed into law by Nixon on December 15, 1975.155
While federal legislation is not the most common method by which tribes have regained land, it can be an effective way to return large amounts of acreage.156 However, due to a slow legislative process, congressional acts can often take years to process.157 Petitions sent to senatorial and congressional leaders by both constituents and tribes can possibly help get requests for land back heard at the federal level, leading to potential legislation.
D. Litigation
Of all the methods utilized by tribes and tribal organizations to regain land, litigation is perhaps the most difficult.158 This should not discourage tribes from pursuing land claims in a court of law; however, it is important to note that while many tribal nations have brought actions for aboriginal title, the courts have been very reluctant to uphold them.159
Several obstacles exist within the realm of litigation, one being the aforementioned Indian Land Claims Commission, which was created by the Act of 1946 to hear claims of ‘any Indian tribe, band, or other identifiable group of American Indians' against the United States.’160 The ICCA aimed to provide ‘broad grounds for recovery, including claims based on unconscionable consideration for tribal lands which were taken, and claims based on fair and honorable dealing not recognized by any existing rule of law or equity.’161 While the ICCA did result in many tribes receiving compensation for lands illegally taken, it largely failed to meet the expectations of both tribes and Congress.162 The ICCA was disappointing for tribes in a few ways, 1) compensatory awards for stolen land were exclusively monetary and land return was firmly excluded, 2) lawyer fees often resulted in diminished payments to tribal members, and 3) after filing with the ICCA, tribes were precluded from filing any future claims for unjust compensation or land return.163 Thus, the ICCA foreclosed many opportunities for tribal nations to recover land.164
Another reason why litigation proves to be an arduous method of pursuing land return is because much of the land once occupied by tribes is now under federal ownership and management.165 Sovereign immunity enjoyed by the United States makes it very difficult to bring a land claim against the government.166 Additionally, a tribe bringing a claim of aboriginal title carries the burdensome task of proving that the tribe historically possessed exclusive use of the land in dispute.167 This can often be very difficult to prove, due to the common practice of sharing territories for hunting and ceremonial practices, and also because tribal histories have traditionally been orally recorded rather than transcribed on to paper.168 This can hinder the attorneys litigating on behalf of tribes for two reasons, 1) tribal communities are often extremely protective of oral histories and will often refuse to disclose their ancestral stories and knowledge, and 2) tribal oral histories are very difficult to admit into evidence during litigation because of the prohibitory rules of evidence against hearsay.169
Lastly, litigation can take years and even decades, as was the case of Pueblo of Jemez v. United States, 790 F.3d 1143 (10th Cir. 2015). Originally filed on July 20, 2012, Pueblo of Jemez is still in active appellate litigation as of February 2022.170 In Pueblo of Jemez, the Tribe brought action against the United States under the federal common law and the Quiet Title Act, seeking to quiet its unextinguished aboriginal title to land in New Mexico’s Valles Caldera, a place the Tribe claimed had been in use by the community for over 800 years.171 After the District Court of New Mexico dismissed the case in favor of the United States, the Tribe appealed.
The Pueblo of Jemez brought this action against the United States under the federal common law and the Quiet Title Act, seeking to quiet its allegedly unextinguished and continuing aboriginal title to the lands of what is now the Valles Caldera National Preserve. The government filed a motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The district court held it lacked subject matter jurisdiction as a matter of law and dismissed the action pursuant to Rule 12(b)(1). It reasoned that sovereign immunity barred the action based on its conclusion that the Jemez Pueblo's title claim against the United States accrued in 1860 when the United States granted the lands in question to the heirs of Luis Maria Cabeza de Baca (the Baca heirs). The claim thus fell within the exclusive jurisdiction of the Indian Claims Commission Act, which waived sovereign immunity and provided a cause of action to all Indian claims against the government that accrued before 1946 so long as they were filed within a five year statute of limitations period. Because the claim was not so filed, it became barred by sovereign immunity. The Jemez Pueblo appeals, contending that its aboriginal title was not extinguished by the 1860 grant to the Baca heirs and that its claim for interference with its Indian title did not accrue until 2000, after the United States acquired an interest in the Valles Caldera and began interfering with the Jemez Pueblo's access to the land. Therefore, it argues, it has a current claim against the United States under the Quiet Title Act.172
Pueblo of Jemez is unique in a few ways, one being the immense scope of the case. Christina West, one of the attorneys representing the Pueblo of Jemez, recounted the workload involved: “We received 4 million pages of discovery from the United States and the trial lasted more than three weeks.”173 Additionally, West described the issue of exclusive use, a necessary element to prove a claim for aboriginal title by saying, “exclusive western use and exclusive tribal use are very different.”174 What West describes is a fundamental difference between Euro American property law and Indigenous land use; the Euro-American belief that a sole title owner can exclusively hold rights to land, as opposed to an Indigenous perspective on property use which values intertribal caretaking and use.175 This clash in perspective contributes to the difficulty in proving aboriginal title, as many tribes did not practice land use with the exclusivity required to prove title in a western court of law.176
Also present in Pueblo vs. Jemez was the issue of claim preclusion due to the Indian Land Claims Commission.177 The case of Pueblo vs. Jemez is unique in that the Tribe was successful in arguing against the ICCA’s preclusion of the claim for aboriginal title.178 The United States argued that the Tribe should have brought their claim under the ICCA back in 1946; the Tribe argued successfully that it was impossible to bring a claim because the land had been in private ownership at the time.179 Thus, the claim was not precluded because it was in private ownership during the requisite statute of limitations under the ICCA. It is important to note that this is a unique way in which tribes can surmount preclusion under the ICCA and bring an action for aboriginal title of ancestral homelands.180
While litigation is a time consuming, costly, and unsure method of regaining land back, there is something to be said about the gamble involved; no one can predict how a judge is going to rule. Occasionally, a unique perspective paired with a good argument can lead to a surprising judicial opinion. When tribes litigate for the return of ancestral land, it forces more federal and state judges to examine Indian law and the policies behind it. With the constant evolution of culture and law, continued litigation for the return of land can potentially lead to historic, precedent-setting opinions in favor of tribes.
V. CONCLUSION
The list of methods for land back provided in this article are not exclusive. This article merely scratches the surface of many deep-seated issues existing within American property law, federal Indian law, and the colonial history of land ownership in this country. Across the globe, there are tribal nations working diligently to address these issues and regain rights to stolen land. Just like its Indigenous creators, the Land Back movement is constantly evolving, adjusting, and adapting. With the climate crisis worsening and the demand for social justice intensifying, the need for Land Back is paramount. Reparations for centuries of injustice are long overdue. Ecosystems across the globe are buckling under the weight of capitalism, imperialism, and globalization. The land needs to heal. The people need to heal. All those who have lost connection to their ancestral culture and homelands should have the opportunity to return home and rediscover themselves within community. The return of stolen land to Indigenous peoples can be the catalyst for much needed cultural, societal, and environmental healing. #LANDBACK
REFERENCES
