This month the U.S. Department of Interior issued a draft proposal regarding its implementation of $1.9 billion in Indian land consolidation monies authorized in the Cobell settlement. The proposal, which would allow tribal governments to buy fractionated, individual Indian-owned lands with federal monies, has been heralded as satisfying tribal governments’ land consolidation concerns. The plan, through of noble intent, falls far short in identifying or addressing the concerns of tribal member landowners.
Interior’s proposal is ripe for disaster because it would spawn property ownership clashes of enormous legal and socioeconomic consequence. In many instances, the fight would be between tribal governments and impoverished tribal members – pinning tribes against their own citizens, and causing actionable intra-tribal conflicts of interest for the United States.
One of Interior’s primary proposed strategies is to “identify tracts with relatively low fractionation and a few ‘large’ interest owners, the acquisition of whose interests could bring a tribe to a controlling level of interest in that tract with a minimal number of acquisitions.” For simplicity sake, I refer to that “strategy” as “federal-tribal allotted land consolidation,” although it would also apply to member-owned restricted fee lands. Interior’s reference to controlling tribal interest relates to the Indian Land Consolidation Act (ILCA), which generally allows tribal governments that acquire a simple 51% majority interest in allotted lands to force a sale of minority owners’ land interests. Recall that the U.S. Supreme Court has already struck down ILCA once for causing the unconstitutional taking of tribal member lands (Hodel v. Irving).
Interior’s proposal leaves unanswered many questions pertaining to tribal member land rights. Where federal-tribal allotted land consolidation “could bring a tribe to a controlling level of interest in that tract with a minimal number of acquisitions,” how will the Bureau of Indian Affairs reconcile the inherent conflict between that tribe and tribal member landowners? Can such a conflict of interest even be reconciled? Who will carry out the trust fiduciary obligation that the federal government owes to tribal members?
Former Bureau employees say that when given the choice between a tribe and tribal members, it is BIA policy for Superintendents to side with the tribe. That choice, however, constitutes a blatant trust breach toward the members. Interior’s proposal must therefore include some mechanism to allow the Bureau to resolve the intra-tribal interest conflicts inherent in federal-tribal allotted land consolidation and, in turn, to protect members from the possibility of unjustly losing their lands to their own tribe.
How will tribal member landowners obtain information about federal-tribal allotted land consolidation – meaning beforehand? Will tribal members otherwise be meaningfully consulted – meaning early on and throughout the consolidation process? The Bureau, or at least its Puget Sound Pacific Region, takes the position that the federal Indian consultation right vis-à-vis land ownership, extends only to tribal governments and not to tribal members – despite federal common law such as Cobell holding that the Bureau must inform and consult tribal member landowners whenever the use or enjoyment of their land is impacted. Interior’s proposal must also include some mechanism to allow tribal member landowners early and ready access to information pertaining to any federal-tribal allotted land consolidation effort.
Above all, how will the United States protect against any improper federal-tribal governmental allotted land consolidation – meaning one in which tribal members do not want to lose their family’s land forever? Or in which tribal members have their own plans to overcome fractionation challenges and utilize their family’s land for cultural or economic purposes? Or, on the flipside, one in which impoverished tribal members will sell their land interests for less than fair market value merely in order to survive? What about the situation where the tribe with “a controlling level of interest” seeks 100% ownership of the land for some unjust reason? Indeed, as noted by the Village Earth blog, Interior’s proposal “does not address the concerns of many individual land owners who feel that programs like this take advantage of people’s desperation, forever divesting them of their lands for a small one-time payment, and transferring them to the control of Tribal Governments who may not use them for the benefit of their people as a whole.”
At a minimum, Interior’s proposal (and any rule-making) should outline a process for allotted land consolidation in which tribal member landowners can be progressively informed and consulted, and ultimately heard. Particularly apropos on this process point is Article 10 to the United Nations Declaration on the Rights of Indigenous Peoples:
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
Consistent with the Obama Administration’s endorsement of the Declaration and NCAI President Jefferson Keel’s recent State of Indian Nation’s Address, (1) free, prior and informed tribal member landowner consent, and (2) just and fair compensation, as required also by our own federal Constitution, must be the baseline for any federal-tribal allotted land consolidation effort – and thus for Interior’s proposal in that regard.
Again, Interior’s proposal seems well-intended. It simply requires additional federal thought, tribal consultation, and collective care to ensure the proper protection of tribal member land rights. Consider the alternative: another several decades of trust mismanagement litigation against the federal government by tribal member landowners who, rest assured, will not allow their family’s lands to be taken by anyone – including their own tribe – without a fight. Let’s all hope it does not come to that.
Gabriel S. Galanda, an enrolled member of the Round Valley Indian Tribes, is a partner with Galanda Broadman, PLLC, in Seattle.