WASHINGTON – Federal officials are stepping up a massive new program to return millions of acres to Native American tribal management – land that, over generations, has been repeatedly broken up into a confusing patchwork of ownership, a legacy of U.S. government action more than a century ago.
The “buy-back” program is part of a major legal settlement finalized late last year, in which the courts found that the federal government had for decades mismanaged revenues stemming from tribal lands held in trust. As part of that settlement, the Department of the Interior has been authorized to spend almost $2 billion to buy around 10 million acres of land currently under private ownership and give this to some 150 tribes across the country.
The result would be a significant increase in the amount of land under collective tribal management in the United States. Pilot projects are already underway on four reservations, in Washington, Montana and, especially, South Dakota. But following on high interest from many tribes, the government is now accelerating attempts to put in place the program’s foundations.
On Wednesday, Secretary of the Interior Sally Jewell announced a purchase goal of 500,000 acres within the next three years, which she called “unprecedented in modern times.”
“This is a major step forward toward strengthening tribal sovereignty by supporting consolidation of tribal homelands,” Jewell said. “We are moving quickly to establish individualized cooperative agreements, which address the specific needs of each tribe and provide resources for tribal communities to implement the program.”
Speaking at the start of an annual White House summit hosting the country’s 566 formally recognized tribe, Jewell noted, “Restoring land to tribes is not only important to achieve self-determination, but it can also be a spark for economic development in Indian Country – generating investment, new jobs and revenues.”
On Tuesday, the Interior Department also unveiled a new rule that would strengthen tribes’ ability to develop these newly acquired lands “for purposes such as housing, schools and economic development.”
Fractionated trust
The government currently holds around 56 million acres in trust for Native Americans, some 10 million of which are held for individuals and the rest for the tribes. This individually held acreage is made up of roughly 200,000 tracts, almost half of which are divided among a hodgepodge of multiple owners, many of whom own tiny, overlapping slivers of the larger tract.
It is these slivers – the issue is collectively referred to as “fractionation” – that will now be eligible for buy-back, with the government planning to offer market rates to willing sellers. Some 90 percent of fractionation is reportedly located on just 40 reservations (particularly in the Great Plains), where the Interior Department will now focus its primary energies.
“This program is quite significant because it is about keeping land under Indian ownership and resolving a problem that has been 130 years in the making – the fractionated titles of Indian ownership,” Cris Stainbrook, president of the Indian Land Tenure Foundation (ILTF), a Minnesota-based group, told Mint.
“This has made land management incredibly inefficient in Indian Country. We would like to see those efficiencies increased so that Indian people and the tribes can actually get the potential economic returns from their properties.”
The problem began back in the 1880s. Aiming to force Native Americans to join a burgeoning U.S. mainstream, federal legislation known as the General Allotment Act divided up 140 million acres of communal tribal land into parcels that were then allotted to individual Native American owners, who were meant to settle and farm. The government continued – and continues – to hold both the communally and individually owned lands in trust, on the assumption that Washington can better oversee Native lands.
Over the years, these privately owned plots have been repeatedly broken up through additional sale or inheritance. Because wills have been drawn up only by a very small percentage of Native Americans (only around 7 percent even today), inheritances have largely been overseen by the federal government, which has repeatedly divided plots between descendents, often with no detail on exact boundaries.
The result is tracts of land with hundreds, even thousands of owners, exorbitant administrative costs for the government, and no straightforward way to solve the problem. It has also meant that these lands have been largely unavailable to tribes to use for common goods or, often, to individuals to earn an income.
Over the years, significant Native American income has been generated through land-based activities on reservations, including agricultural leases, timber harvests, and minerals and petroleum revenues. Yet the complexity of ownership on fractionated lands has often meant that, for instance, agricultural leases expire and aren’t renewed, simply because no one individual is motivated to spearhead the paperwork.
The federal government actually recognized the problem of fractionation by the beginning of the 20th century, and subsequently passed multiple pieces of legislation trying to fix the situation, most directly in 1934 and again in 1983. These attempts failed to make a dent, however, for multiple reasons, including the fact that the government attempted to force landowners to sell – a mistake that the new program does not make – and because insufficient funds were devoted to the consolidation attempts.
For the government, fractionation has meant tremendous administrative costs, as each time revenues come in from government-held tribal lands, that money needs to be split between owners and deposited in a blizzard of government-overseen accounts. Indeed, the 2010 court decision – known as the Cobell settlement, worth some $3.4 billion – revolved around longstanding allegations that many of these revenues were not actually making it through the bureaucracy and back to Native American accounts.
It is important to note that, although the issue has long been pushed by Native American activists, the current attempt to deal with fractionation is actually the federal government’s “side” of the Cobell settlement.
Stand-alone effort
Even as the current program gets rolling, a major question remains about the role that the tribes will play in the new program.
Under a newly released timeline, for the next four months the government will now be focusing on negotiating agreements with each of the tribes interested in taking over management of new lands. Much of these negotiations will be figuring out basics, such as how related costs incurred by the tribes will be paid for.
“One major concern for the Oglala tribe is the … administrative costs,” Denise M. Mesteth, director of the Oglala Sioux Tribe Land Office in Pine Ridge, South Dakota, told Mint. “I see they speak of transparency and accountability – well, the tribes have costs associated with transparency and accountability.”
The details of the cooperative agreements will also be critical in figuring how the government decides which exact tracts to purchase, a process that may put the Interior Department and some tribes at odds.
The Interior Department’s interest and the tribes’ interest in which tracts should be focused on for purchase will not be identical, after all. If the government wants to buy back as many tracts as possible, they won’t start out by buying the most expensive ones, while the tribes will be more interesting in receiving valuable tracts. Deciding on how to proceed in this regard will be a key component in the cooperative agreements.
These agreements will also need to decide how to attach value to the many structures located on the tracts. The government currently doesn’t want to pay for these structures, he said, while the tribes disagree.
“For the program to be successful and implemented in a timely manner will require significant and meaningful participation in the key parts of the program by the tribal governments that have jurisdiction over the land,” the National Congress of American Indians, the oldest such lobby group in the country, told Mint.
“The manner and extent to which the Department of the Interior engages tribal nations over the next several months will determine the ultimate success of the program.”
While much still depends on the individual details of the cooperative agreements, the buy-back program has already come in for criticism for being a more top-down, one-size-fits-all approach than many tribes had hoped for.
“There were other methods that we think would be effective ways for those that want to maintain ownership for their heirs, but this is the federal government being expedient,” ILTF’s Stainbrook said. “And that is probably a bit of a rub with Indian Country. They would have preferred more of the control to have been with the tribes and individuals, and less about the government coming in and saying, ‘Here’s a program; let’s go forward.’”
A notable case in point is the fact that, for years, tribes have been trying to deal with the problem of fractionation on their own, essentially overseeing their own buy-back programs. Currently, around 100 tribes have ongoing consolidation programs.
“We thought that would be an opportunity for the Interior Department to engage right off the bat, essentially allowing the tribes to continue those programs,” Stainbrook said. “We hope that wisdom will be seen sometime in the near future.”
Thus far, the federal government has decided not to engage with these locally overseen initiatives.
“The Land Buy Back Program helps the effort to consolidate tribal resources, which many tribes have attempted to implement in the past,” an Interior Department official told Mint, confirming that the initiative is “a stand-alone effort.”
After the cooperative agreements are finalized, the government will work to value individual tracts of land and, eventually, start making actual purchases. The overall program is expected to run through 2022, when the current allotment of cash will expire.
Still, Stainbrook said even this allocation will only be able to deal with around half of the total problem of fractionated Indian land titles. As Interior Department officials have admitted, addressing the rest would eventually require another multi-billion-dollar tranche of funding from Congress.