Since the 1880s, U.S. legislation has led to Native Americans losing ownership and control of more than 90 million acres of traditional lands. The impact has been devastating. As a result of the General Allotment Act of 1887 (also known as the Dawes Act), tribally-held land was divided among individual tribal members and the remaining “surplus” lands were opened to white settlement. This division and alienation of Indian land and assets had destructive consequences for Indian people that endure today.
Now major steps are being taken by Native Nations to recover the land that was lost. Thanks to new sources of revenue, and the dedicated commitment of various individuals and groups, tribes are now reclaiming these lost lands through legal transfers and purchases with assistance from organizations like the non-profit Indian Land Tenure Foundation (ILTF). The goal is return traditional lands to Indian ownership and control to ensure that Indian people have access to the financial and natural resources within their own reservations.
Allotment caused land that had been held in common by the entire tribe to be divided into a jumbled mix of trust lands, fee lands, and lands owned by the tribe, individual Indians and non-Indians. Indian lands that were alienated by the allotment process were sold or transferred to non-Indian parties but remained within reservation boundaries. As a result, there is a checkerboard pattern. Checkerboarding seriously impairs the ability of Native Americans to use land for farming, ranching, or other economic activities that require large, contiguous sections of land. It also hampers access to lands that the tribe owns and uses in traditional ways. Jurisdictional challenges are common as different governing authorities – county, state, federal, and tribal governments, for example – claim the authority to regulate, tax, or perform various activities within reservation borders. Often these different claims to authority conflict, which can create economic uncertainty, racial tension, and community clashes within or near the reservation. To complicate matters even more, the case law relevant to jurisdiction on Indian land is highly complex, inconsistent and unsettled.
For over a century, Indian families have seen valuable land resources diminish as fractionated ownership increases with each passing generation. As a result of the Dawes Act, reservation land was divvied up and allotted to individual tribal members. When an allottee died, title ownership was divided up among all of the heirs, but the land itself was not physically divided. As such, each Indian heir received an undivided interest in the land. Now, as each generation passes on, the number of owners grows exponentially, which has resulted in the highly fractionated ownership of much Indian land today.
Parcels with fractionated ownership can have hundreds or even thousands of owners. With so many owners, individual income from the land is minimal – sometimes less than what it costs the federal government to process the payment. In addition, land use is compromised because the owner of an undivided interest must gain consent from a majority of the parcel’s owners to do anything with the land. This makes it nearly impossible for any one of the owners to use the land for agriculture, business development or a home site, all uses that would improve quality of life for Indian people.
“The damage is being mitigated one land transaction at a time.”
Today, the loss of tribal lands, combined with the mixed ownership patterns within reservation boundaries, poses serious challenges for the sovereignty and self-determination of Indian nations. Loss of access to sacred and cultural sites makes it harder for each successive generation to remain rooted in Native culture. Today, the vast majority of agricultural lands on reservations are leased to non-Indian ranchers, often at less than fair-market value, and billions of dollars in income from these lands goes off the reservation instead of to the Indian landowners who often live in poverty.
Organizations like the Indian Land Tenure Foundation are helping tribes recover their ancestral homelands, including sacred sites such as Pe’ Sla, a high mountain prairie in the Black Hills that is sacred to the Lakota/Dakota/Nakota Tribes. Since 2012, ILTF has been assisting the Oceti Sakowin Nations to purchase and protect more than 2,300 acres at Pe’ Sla. The Tribes continue to raise money to pay off a loan and acquire more land to protect Pe’ Sla for future generations.
In 1961, the cultural and holy site Bear Butte (photo above) was designated as a state park, but much of the immediate surrounding area was left in private ownership. Located near Sturgis, S.D., this sacred site has been under siege in recent years by encroaching commercial development fueled by the annual Sturgis Motorcycle Rally and other growth in the region. The Cheyenne and Lakota tribes and people have been struggling to acquire private properties in the area so that religious ceremonies held on Bear Butte can be conducted without disruption from other land uses. The Bear Butte Land Recovery Fund helps support the tribes in these acquisitions and management of the land, including the 2016 purchase at auction of 270 acres at a cost of $1.3 million. Much more land still needs to be protected.
Nearly 150 years after being forcibly removed from their ancestral homelands on the Pacific Coast to an inland reservation, the Kashia Band of Pomo Indians in Sonoma County, Calif., once again have access to the Pacific Ocean. On June 15, 2016 the Tribe celebrated the recovery of nearly 700 acres north of San Francisco, land which features dense redwood forest, towering coastal bluffs and spectacular waterfalls. The Tribe has established the Kashia Coastal Reserve (photo above), a protected open space and demonstration forest to educate and engage the public about the history and practices of the Kashia people.
These are important examples of what is possible, but land recovery is a long, tedious process. It’s fraught with legal obstacles, systemic barriers and long-held anti-Indian sentiment that makes it difficult to complete transactions in way that is timely and cost-effective. It’s not uncommon at land auctions, for example, for non-Indian bidders to intentionally drive prices skyward simply to raise the barriers for Indians to repurchase the land. But the process is well underway now, and the damage of history is being mitigated one land transaction at a time.