“Land back” to Native Nations is not a new idea, but one that has seen a rebirth in the moral reckoning of the collective American mind that is being actualized in the last several years.
According to Indian Country Today,
Some 56 million acres are held in trust by the federal government for tribes. That's approximately 2 percent of the country. However, 90 million acres were taken by the United States between 1887 and 1934 tribes through the Allotment Act, termination and, sometimes, illegal actions.1
The first return of land to Native Nations in modern history in the U.S. was probably on Dec. 15, 1970, when Pres. Nixon signed the legislation that returned Blue Lake to the Taos Pueblo. Blue Lake had been taken from the Pueblo Nation in 1906 and they had never stopped their fight for its return.2 The 50th anniversary of the return of Blue Lake was celebrated on July 11, 2022 (two years late due to the COVID-19 pandemic).3
The land back movement is a social recognition and advocacy effort to restore land that was taken by governments, stolen by colonists or otherwise commandeered illegally or unethically that can be given back to Native Nations in the United States. Concepts that involve giving back national parks to federally recognized tribes has been one of the sweeping ideas for accomplishing these goals of equity, but a form of co-management and access is likely to be achieved.
Giving back the Black Hills to the Lakota Sioux is one of the most obvious equitable but perhaps politically impossible restitutions that should be considered. This fight to reclaim the Black Hills started while settlers were swarming onto the reservation lands in the late 1800s; now let’s spring forward to the United States Court of Claims decision, June 13, 1979. Ultimately, the U.S. Supreme Court opined that the Black Hills were illegally allowed to be taken by settlers that were legally reserved lands for the Sioux Nations, in violation of the 1868 Fort Laramie Treaty, in a Fifth Amendment constitutional takings claim. The Lakota Sioux were awarded $17.5 million with 5% interest, totaling $105 million.
Justice Blackmun repeated this quote from the opinion by the Court of Claims, and it hangs on a building on the Pine Ridge reservation:
"A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe." 4
A monetary award was not an acceptable solution for the Sioux Nations who consider the Black Hills to be sacred. Money does not equate with sacred land. To this day, the payment —- now 1.3 billion dollars — sits in the U.S. Treasury, unaccepted by the Sioux Nations parties.
By 2011, co-management was proposed in legislation for the Black Hills, but that proved even too controversial. However, proposals for co-management of public lands that are the traditional lands of Native Nations in the United States has gained traction more recently as one way of responding to the land back movement.
Current Innovative Landback Actions
There are a number of methods in law that have been used to effect a landback solution. Co-management agreements with parks, a National Park Service agreement for collecting plants, not otherwise allowed; return of land initiated by state legislation; return of land by federal legislation and private organizations that have or acquire land to return to Native Nations.
Co-management in parks like the example of Bears Ears National Monument, below.
National Park Service agreements for collecting plants:
Tohono O’odham Nation signed an agreement for the collection of plants in the Saguaro National Park in 2018 5
Eastern Cherokee Nation signed an agreement in 2019 with the National Park Service for the collection of plants in the Great Smoky Mountains National Park in 2019.6
Western Cherokee Nation signed an agreement with the National Park Service for the collection of plants in the Buffalo River National Park in 2022.7
Return of alternate land initiated by the state of Illinois through state legislation in 2022 to urge the federal government to reestablish the treaty land illegal sold.8 Other “land swaps” like in South Dakota have also been used.
Wyandotte Nation of Oklahoma received a private return of land from the Methodist Church in 2019. Three acres in Upper Sandusky, Ohio on September 21st as the United Methodist Church returned a deed to a historic worship site of the Wyandotte Nation,9 before the 1830 Removal Act forced them to relocate.
The Confederated Tribes of the Umatilla Indian Reservation in Oregon are using estate law to reclaim land within the reservation held by non-tribal citizens to return it to Tribal control.
Federal legislation was passed by Congress and signed by Pres. Trump to return 11,000 acres of the Chippewa National Forest to the Leech Lake Band of Ojibwe in Minnesota, Dec. 23, 2020.10
Utility companies and state governments can give Native Nations within their borders the first right of refusal when land they control is up for sale. California has implemented this through Governor’s Executive Order, and the state utility policy.11
Bears Ears National Monument - an experiment in co-management
In an unprecedented action, June 2022, the federal government (Dept. of Interior) established the Bears Ears Commission which includes one representative from the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah and Ouray Reservation, and the Pueblo of Zuni.12 The importance of this collaborative effort cannot be underestimated. It may prove to be a model for many more co-management agreements.
Bears Ears National Monument is managed by the National Forest Service and the Bureau of Land Management.13 The Bureau of Land Management also has a RAC, a resource advisory committee, with a membership of interested citizens.14 Many voices will be co-managing this Monument, but the Bears Ears Commission is an agreement between sovereign governments. The President with an intergovernmental cooperative agreement that is between sovereign Native Nations and the federal government has created this important Commission that is an actualization of sovereign governments in cooperative management.
Bears Ears, is a rock formation considered sacred to the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe ofthe Uintah and Ouray Reservation, and the Pueblo of Zuni Native Nations in the Utah, Colorado, Arizona and New Mexico area. Bear’s Ears or Shashjaa’ in Navajo is 9.058 ft in elevation within the borders of Utah. Early Spanish records refer to this rock formation located at the south end of the Manti-La Sl National Forest as “Bear’s Ears”, and the colonizer’s name stuck. One peak is 9059 ft, the other 8508 ft in elevation.
Navajo tradition holds that this feature and Douglas Mesa and all points in between form a pathway for the gods. It is also one of the most powerful symbols of protection and the battle of good versus evil. This area is central to their origin story. The formation is considered to be the dismembered head of Changing Bear Woman in that legend of the Upward Reachingway Chant of the Evilway Ceremony.15
The Zuni people’s origin story is that their ancestors emerged from within the earth to the surface at a place within the Grand Canyon, and emerged from the canyon and began exploring all the tributaries of the Colorado River, [settling] in what is called the Bear Ears area. There they built hogans and villages.
2016 Establishment, 2017 Reduction of Bears Ears and 2021 Restoration
The monument area has proven to be controversial, with those who prioritize its beauty and sacred status in opposition to those who want to extract its artefacts and natural resources.
President Barack Obama by E.O. established the national monuments on Dec 28, 2016. The monuments’ original size was 1,351,849 acres (roughly the size of Delaware)
In 2017, the Monuments were reduced 85% by President Donald Trump by E.O. on December 4, 2017. Bears Ears original area, and the escalante staircase national monument were both reduced in this action. Trump reduction E.O. shown in the red outline, 2017.
Together they make up more than 100,000 sacred sites
The Legal Basis for these Actions
Antiquities Act of 1906
“. . .to declare by public proclamation historic lands. —- public marks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, . . .”
“While the Antiquities Act confers presidential authority to designate new monuments, it contains no requirements for public participation prior to any such designation. H.R. 1487 amends the Antiquities Act to require the President to solicit public participation and comment in development of a monument declaration, and to consult with the Governor and congressional delegation within the affected State prior to declaration to the extent such public participation and congressional consultation is consistent with the protection of the resources to be included in the monument.” 16
• The Bears Ears Commission will consist of one elected officer from the Hopi Nation, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah Ouray, and Zuni Tribe, designated by the officers’ respective tribes. The expertise of the Bears Ears Commission will help further the proclamation’s directive to provide access to members of Indian tribes to traditional and culture use of the land including the collection of plants and firewood.
Sec. 3. Restoring National Monuments. (a) The Secretary of the Interior, as appropriate and consistent with applicable law, including the Antiquities Act, 54 U.S.C. 320301 et seq., shall, in consultation with the Attorney General, the Secretaries of Agriculture and Commerce, the Chair of the Council on Environmental Quality, and Tribal governments, conduct a review of the monument boundaries and conditions that were established by Proclamation 9681 of December 4, 2017 (Modifying the Bears Ears National Monument); Proclamation 9682 of December 4, 2017 (Modifying the Grand Staircase-Escalante National Monument); 17
The Bears Ears Commission is a step in the right direction. But it is only a first step. There is much more work to be done to restore Native Nations' rightful place in the management of our shared lands and resources.
The Bears Ears Commission is a new co-management approach. This approach can and should be expanded to other areas of the country where Native Nations have a historic and cultural connection to the land. It is a way of honoring Native people's deep connection to the land and acknowledging the history of colonization and dispossession that has led to the current situation.
The Land Back movement is gaining momentum and creative legal tools are helping achieve justice.
https://indiancountrytoday.com/news/tribes-reclaiming-lands-actually-happening
https://indiancountrytoday.com/news/blue-lake-fight-was-never-given-up?redir=1 A memo from Leonard Garment had persuaded Pres. Nixon to return the land to the Taos Pueblo.
https://indiancountrytoday.com/news/the-wrap-blue-lake-day
United States v. Sioux Nation, 207 Ct.Cl., at 241, 518 F.2d, at 1302 (1975), and repeated in Justice Blackmun’s opinion in United States v. Sioux Nation of Indians, 448 U.S. 371 at 388 (1980).
https://www.nps.gov/sagu/learn/management/upload/SAGU-Plant-Gathering-for-Tradl-Purposes-FONSI-Signed-May-30-2018.pdf
https://www.nytimes.com/2022/04/27/us/cherokee-plants-national-park.html
https://anadisgoi.com/index.php/government-stories/900-cherokee-nation-national-park-service-partner-to-provide-cherokees-access-to-traditional-plants-in-buffalo-national-river-park
https://nativenewsonline.net/currents/legislation-introduced-in-illinois-legislature-calls-for-restoration-of-prairie-band-potawatomi-reservation-near-chicago
https://michiganumc.org/church-returns-land-to-wyandotte-people/
https://indiancountrytoday.com/news/leech-lake-homelands-returned?redir=1
https://www.cpuc.ca.gov/news-and-updates/all-news/cpuc-adopts-new-tribal-land-transfer-policy#:~:text=Added%20Commissioner%20Clifford%20Rechtschaffen%2C%20%E2%80%9CUnder,model%20for%20other%20state%20agencies.%E2%80%9D
https://www.washingtonpost.com/climate-environment/2022/06/20/bears-ears-national-monument-tribes/
https://www.blm.gov/sites/blm.gov/files/docs/2022-06/BearsEarsNationalMonumentInter-GovernmentalAgreement2022.pdf
https://www.blm.gov/get-involved/rac-near-you/utah/benm-mac
McPherson 1992, 35-37.
Report language from the 2000 amendment, to the 1906 Antiquities Act.
Pres. Biden, E.O. Jan 20, 2021.
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