The LandBack movement is an Indigenous-led response to the machinations of settler colonialism that has dispossessed Indigenous peoples and Native nations from their ancestral homelands. The movement’s goals typically focus on Indigenous peoples regaining control of their ancestral lands—either through restored access and management rights or through direct return of territory.
Undergirding this movement are the plethora of Indigenous worldviews and epistemologies that, while vast and varied, generally link cultural identity and well-being to stewardship of ancestral homelands. Such worldviews are often rooted in a relationship of reciprocity as reflected in contemporary Indigenous human rights law including the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP). For example, UNDRIP Article 25 recognizes that Indigenous rights to ancestral homelands are connected to a distinctive spiritual relationship and responsibility to those lands, including the water and other resources located there.
Indigenous worldviews recognize deep interconnections between humans and nature, aligning with modern ecological science’s understanding of environmental systems. This makes LandBack fundamentally an environmental movement. While Western environmental law separates human use of air, water, and land into silos, Indigenous epistemologies center upon an ecosystem of responsibility where humans are not actors upon the land but are rather from the land.
Although generalizations of Indigenous worldviews must be engaged in with caution, this article aims to provide an opportunity to learn from and increase our understanding of how land, history, and contemporary environmental challenges are interwoven and how legal institutions might better respond to such challenges in the future. Below, I highlight four examples of the LandBack movement in what is now known as California, Montana, and Alaska. These examples illuminate both the successes and challenges Native nations face while navigating current legal systems to reclaim ancestral lands and traditional and ways of life. Together, these examples illuminate that the well-being of Native nations is inextricably linked to their ability to reconnect with ancestral lands and maintain their cultural traditions.
The Confederated Villages of Lisjan
The Confederated Villages of Lisjan (CVL), an Ohlone Native Nation in the eastern San Francisco Bay area, has emerged as a transformative leader in the LandBack movement. Organized under California state law as nonprofits, CVL and its land trust Sogorea Te’ have successfully created an urban Indigenous women-led rematriation effort to reclaim ancestral lands, language, and ways of life. What Is Rematriation, Sogorea Te’ Land Trust. No Bay Area Native Nations currently have federal recognition, largely due to the devastating impact of the California genocide and federal policies that have created extraordinary barriers to the federal recognition process. See Katie Lauer, “Trail of Truth”: Muwekma Ohlone Tribe Demands Return of Artifacts, Remains as Cross-Country Protest Winds Through the Bay Area, E. Bay Times (Aug. 9, 2024). CVL is state recognized and included on California’s list of Native American tribes traditionally and culturally affiliated with their ancestral lands. However, this state recognition, under the California Environmental Quality Act (CEQA), only requires private developers and state agencies to engage in limited tribal consultation. Cal. Pub. Res. Code §§ 21000–21189 (2024). While CEQA requires tribal monitoring as a mitigation measure when cultural resources are present, it does not give tribes the power to halt projects that threaten these resources. See Ruegg & Ellsworth v. City of Berkeley, 63 Cal. App. 5th 277 (1st Dist. 2021), reh’g denied (May 19, 2021), review denied, No. S269012, 2021 Cal. LEXIS 5333 (July 28, 2021). Despite these legal limitations, CVL has successfully protected the West Berkeley Shellmound—a sacred Ohlone burial site—from commercial development.
In March, after a two-decades-long effort to protect the site from further desecration, the West Berkeley Shellmound was purchased by the Sogorea Te’ Land Trust. Ally Markovich, Berkeley Will Buy Ohlone Shellmound Site, Return It to Indigenous Land Trust, BerkeleySide (Mar. 12, 2024). Sogorea Te’ purchased the land with significant financial support from a private foundation and funds from the City of Berkeley, which authorized the transfer. Id. Plans for the West Berkeley Shellmound include restoring the sacred site for cultural ceremonies and providing a space for the potential reburial of ancestral remains that were taken by academic and amateur archaeologists and are currently held at UC Berkeley’s Phoebe A. Hearst Museum. Beyond preventing further desecration of this sacred site, restoring Indigenous ownership advances healing and wellness for Indigenous peoples by providing unrestricted access for cultural practices and revitalization. CVL’s tireless advocacy for protection of the West Berkeley Shellmound and its strategic navigation of financial and legal institutional structures to secure ownership of the site offer valuable lessons for other Native nations who face similar challenges to their inherent sovereignty and access to ancestral homelands.
Yurok Tribe
The Yurok Tribe has established groundbreaking co-stewardship agreements with the federal and state agencies to restore their role in managing ancestral lands and revitalize traditional subsistence practices in California’s Klamath River region. These partnerships—with the U.S. Forest Service, National Park Service, and California State Parks—emerged in response to decades of environmental degradation in northern California’s Klamath River region, where federal land management policies permitted intensive agriculture, hydroelectric dams, logging, mining, roads, fires, and overfishing—all of which threatened the Tribe’s traditional subsistence practices.
Recently, these collaborative efforts expanded when the Tribe secured the return of 125 acres of ancestorial lands known as the O’Rew through a memorandum of understanding (MOU) with the National Park Service, California State Parks, and the Redwood League. Associated Press, California Tribe Becomes the First to Manage Land with National Park Service, The Guardian (Mar. 20, 2024). The Tribe, in addition to continuing the salmon and plant restoration work they’ve engaged in for the last several years, is planning to build a Yurok village of redwood plank houses and a sweat lodge for traditional uses at O’Rew. Id.
Co-stewardship agreements between Native nations and the federal government have expanded with the appointment of the first Native American Secretary of the Interior, Deb Haaland, who was been instrumental in developing policies in support of Native nation co-management of ancestral territories. The 2021 Joint Secretarial Order 3403 on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters exemplifies this shift, requiring bureaus and agencies within the Department of the Interior and the U.S. Department of Agriculture to complete annual reports on their fulfillment of tribal trust responsibilities and explore new opportunities for co-stewardship arrangements.
The Yurok, along with other Native nations in the region, have recently received national attention for their successful salmon restoration efforts, particularly their advocacy for removing dams on the Klamath River that blocked traditional salmon spawning grounds. For tribes whose ancestral lands include the Klamath River, salmon are central to traditional ways of life and well-being. However, historically low salmon runs led to the closure of the fishery in 2023. David Helvarg, A River’s Rebirth: Klamath Dam Removals Offer New Life for Salmon as well as California and Oregon Tribes, 25 Am. Indian 1 (2024).
In 2022, the Federal Energy Regulatory Commission (FERC), the agency responsible for licensing hydropower projects under the Federal Power Act, approved the Klamath dam removals. FERC’s Final Environmental Impact Statement concluded that removal “would provide many significant benefits including the protection and restoration of anadromous fisheries that are of vital importance to the Tribes.” FERC, Office of Energy Projects, Final EIS-0313F at iii (Aug. 2022). Tribal involvement in FERC’s approval process spanned decades, including successful negotiations with private dam owners that led to a 2016 preliminary settlement agreement. As Tribal citizen Chemooch McCovey (Yurok/Karuk) recently summarized, “my biggest hope is that we can bring back the Salmon Ceremony after the healing starts, and we’ll try and revive that ceremony that the Yurok and Karuk and Hoopa shared.”
The Yurok Tribe examples illustrate how Native nations have successfully used innovative strategies to achieve ownership, access to, and restoration of ancestral lands and traditional ways of life. Such successful strategies have been utilized to engender public and private support by connecting the importance of LandBack to Indigenous ways of life and traditional ceremonies. However, many challenges remain, some of which are illustrated by the Confederated Salish, Upper Kalispel, and Kootenai Tribes’ (CSKT) and the Central Council of Tlingit and Haida Indian Tribes of Alaska’s (Tlingit & Haida) efforts to reacquire ancestral lands and place them into trust with the federal government.
Confederated Salish, Upper Kalispel, and Kootenai Tribes
The CSKT, whose traditional ancestral lands span at least four states (Idaho, Montana, Washington, and Wyoming) and into present-day Canada, have a deep historical and cultural relationship with Qʷeyq̓͏ʷay (buffalo). Séliš-Ql̓ispé Culture Comm., Buffalo, the Séliš & Ql̓ispé People and the Restoration of the Bison Range, PBS (2023). Today the CSKT retain only a small portion of their ancestral lands, now located within Montana’s Flathead Reservation, which was established by the 1855 Treaty of Hellgate. In 1909, federal authorities further reduced tribal sovereignty by “designating” over 18,000 acres of Reservation land as the National Bison Range—using buffalo from herds Tribal citizens had maintained before allotment policies forced their sale. See Confederated Salish & Kootenai Tribes of Flathead Rsrv., Mont. v. United States, 437 F.2d 458 (Ct. Cl. 1971). A federal claims court ruled in 1971 that this designation constituted a federal taking, yet the U.S. Fish & Wildlife Service (FWS) continued to govern the National Bison Range. Id. In response to Native nation advocacy in the late 1960s, federal policy shifted toward tribal self-determination with the passage of the Indian Self-Determination Education and Assistance Act (ISDA). Pub. L. No. 93-638, 25 U.S.C. §§ 5301 et seq. The ISDA enabled Native nations to assume responsibility for federal services, including health care, through self-determination contracts. In 1994, when self-determination contracts were expanded to include FWS programs, CSKT sought to assume responsibility for the National Bison Range’s annual roundup and wildlife management programs. Robin Saha & Jennifer Hill-Hart, Federal-Tribal Comanagement of the National Bison Range: The Challenge of Advancing Indigenous Rights Through Collaborative Natural Resource Management in Montana, in Mapping Indigenous Presence, at 143 (Kathryn W. Shanely & Bjørn Evjens eds., 2015).
For over a decade, FWS refused to finalize the ISDA contract and instead offered an MOU for scaled-back services, claiming they were unconvinced of the Tribes’ ability to effectively manage the range. Local community members, nonprofit organizations, and agency employees also opposed tribal co-management efforts, often employing “anti-Indian” rhetoric that was well documented by the Montana Human Rights Network. Id. at 167.
In 2003, FWS and CSKT jointly proposed a co-management plan for the National Bison Range. USFWS, Draft Environmental Assessment for a Draft Funding Agreement: National Bison Range Complex (Aug. 2014) (Draft EIS). Nearly 40 conservation organizations opposed the plan, including the Public Employees for Environmental Responsibility (PEER), which claimed tribal management of natural resources was inappropriate and alleged reverse discrimination. Saha & Hill-Hart, supra, at 167. Despite this opposition, FWS and CSKT established a 2005–2006 compact that granted the Tribes management authority over habitat, fire, maintenance, and visitor services. 70 Fed. Reg. 5205 (Feb. 1, 2005).
In September 2006, FWS unilaterally decided not to renew the compact and canceled the co-management agreement, citing alleged tribal programmatic insufficiencies and a hostile work environment for federal employees. Saha & Hill-Hart, supra, at 169–70. A lengthy back and forth ensued, eventually involving the Department of the Interior’s (DOI) deputy secretary and its Office of Inspector General. Then, in 2008, just as a renegotiated compact for 2009–2011 was set to go into effect, PEER and FWS employees filed a suit against DOI and FWS alleging the compact violated the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). Reed v. Salazar, 744 F. Supp. 2d 98, 115 (D.D.C. 2010). The U.S. District Court for the District of Columbia held that FWS had violated NEPA and the APA and ordered the 2009–2011 compact be rescinded. Id. at 120. In 2016, FWS and CSKT began discussions about including a recommendation in their conservation plan to transfer the National Bison Range’s full ownership and management authority from federal to tribal control through congressional legislation. However, PEER again filed suit, alleging failure to conduct an environmental review under NEPA. Kevin K. Washburn, Facilitating Tribal Co-Management of Federal Public Lands, 2022 Wis. L. Rev. 263 (2022). In 2017, Secretary of the Interior Ryan Zinke’s administration reached a settlement with the litigants, resulting in DOI agreeing to halt its plans to evaluate a legislative transfer of the Range to CSKT, citing “the variety of information and perspectives received during the comment period and a change in policy direction.” Notice of Intent to Prepare a Comprehensive Plan for Bison Range, Moiese, Montana, 82 Fed. Reg. 22,843 (May 18, 2017).
The CSKT continued their advocacy for the legislative transfer, resulting in Montana Senators Steve Daines (R-MT) and Jon Tester (D-MT) jointly introducing the Montana Water Rights Protection Act (drafted by the CSKT) into a bipartisan appropriations bill in 2020. The National Bison Range: Correcting a Century of Injustice, Sierra Club (Apr. 8, 2022). Enacted on December 27, 2020, the Act primarily addresses CSKT water rights in Montana, but also includes a section titled “National Bison Range Restoration,” which provides that “all land comprising the National Bison Range (including all natural resources, interests, and appurtenances of that land) shall be held in trust by the United States for the benefit of the Tribes.” Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 3008 (Dec. 27, 2020). The National Bison Range has now been returned to CSKT, and as of January 2022 CSKT’s Natural Resource Department has taken over all management programs once led by FWS.
CSKT’s perseverance in reclaiming their ancestral lands, despite fierce opposition, demonstrates both the vital connection between Indigenous peoples and their territories and the need for sustained, dynamic advocacy in the LandBack movement. Reflecting on the return of the National Bison Range, then-CSKT Tribal Chairwoman Shelly Fyant told High Country News, “It’s a reconciliation. We are such a place-based people. To have this land back, to be in control of it, is a fresh, new hope.” Anna V. Smith, Reclaiming the National Bison Range, High Country News (Jan. 26, 2021).
