But what does “Land Back” really mean? It can be difficult to distinguish where a given effort falls on the “spectrum” of related projects. On the one side is land returned to full tribal ownership and control, and on the other is, for example, a memorandum of agreement that provides for tribal access to a given area for ceremonial or other temporary use. While cooperative agreements are desirable, they are by nature something less than return of land. Nevertheless, all these examples may be classed in the news media as a “land back” effort and are sure to be tagged #LandBack on social media.
Furthermore, while most of these efforts are publicized, that may be only on a local level, so how does one find out about these efforts and use them to encourage more of the same? Often a land transfer is the culmination of many years of effort and relationship building between governments. How do those relationships get built, and how are these efforts being funded?
The Indian Land Tenure Foundation (ILTF) identified the lack of a public, systematic, nationwide study of actual land-back efforts and sought to remedy that. In 2023, ILTF funded and led an initial survey with a five-person team (led by the author as a consultant to ILTF and staffed by law student interns) to locate and evaluate transfers of land from non-Native entities back to tribes. In the initial phase, ILTF was able to search nearly every state and tribe to develop a “snapshot” of nearly 140 recent land-back deals throughout the country. By assembling in one place a wide variety of examples where land was actually returned to tribes, including supporting legal and regulatory documents wherever possible, ILTF hopes to facilitate more transactions in the future. This article introduces Indian land issues and discusses the parameters of the survey project, as well as providing takeaways and goals for ongoing work.
II. Introduction to Indian Land
The United States currently has 574 federally recognized Indian tribes. They are political entities that the United States recognizes as retaining certain inherent rights of self-government—powers that predate the existence of the U.S. Constitution—and these tribes are eligible to receive benefits and services from the federal government. Treaties between the United States and tribes remain enforceable as the “supreme law of the land.” Moreover, the federal government has a special set of trust obligations toward these tribes, including to hold certain tribal lands as inalienable and protected from intrusion or sale. States, too, maintain government-to-government relationships with federally recognized Indian tribes, although state-tribal policy varies widely.
Tribes originally held all of the 2.4 billion acres of the land in what is now the United States. Through outright theft, forcible relocation, treaty making, congressional action, and many different eras of often-destructive federal Indian policy, tribal lands have been profoundly diminished. Today there are about 56.2 million acres that the federal government holds in trust for tribes across about 326 reservations and other tribal territories.
Most Indian land is “on reservation,” but not all, and tribes continue to have historic relationships with far larger territories—sometimes holding ongoing hunting, fishing, and gathering rights in those ceded territories or other rights. There is great variation between the size of each tribe’s land holdings today. The largest reservation is the Navajo Nation Reservation stretching across Arizona, New Mexico, and Utah, which, at 16 million acres, is larger than West Virginia. The smallest parcel of trust land held for a tribe is a cemetery that is just over an acre.
Tribes, like any other government, can also own land in fee either on- or off-reservation, whether under their own name, a subdivision, a state-incorporated entity, or other entity. While each tribe has its own history and goals, all tribes prioritize maintaining whatever land base they have for future generations.
III. Survey Structure and Methodology
By necessity, research for this project was conducted primarily online and often began with web searches and news articles. In addition to making efforts to identify all relatively high-profile deals, the ILTF research team divided the country by region, conducting searches by tribe within each region. Once a deal was identified, team members then determined whether there were additional public records were available and ultimately gathered and synthesized the available data in brief write-ups.
The survey includes three elements:
- An index presenting individual deals by tribe, state, name of deal, date of deal, estimated acreage, and a brief summary (now live on the ILTF website);
- individual case studies for each deal including information about the parties, land, funding, and other details (to be posted soon); and
- supporting documents for deals when publicly available, such as deeds, news articles, public actions of governmental units involved in the transaction, etc. (linked in case studies wherever possible).
Case studies include all practical details—the who, what, when, and where of each deal—but with particular focus on matters of concern for tribal transactions. For each transfer, the team sought to answer the following questions:
A. Is a tribe really receiving the land or is someone else?
It is essential to understand whether the owner of a parcel of land is the tribal government itself or another entity. For example, a tribal subentity may sometimes hold title to land. A tribe also may incorporate both for-profit and not-for-profit entities under tribal law or sometimes under state law. A consortium of tribes can form a joint entity to collectively own land of mutual importance. All of these details are relevant to understanding the purpose and context of a transfer.
Additionally, a number of non-profit organizations claim to represent tribal groups that lack federal recognition, and a number of tribes are solely recognized by state governments, with rights defined solely as a matter of state law. The survey includes certain examples of land transfers to these kinds of entities, as these transfers have sometimes garnered significant media attention. While there are many examples of historic tribes being unfairly denied federal recognition and there is an entire era of federal Indian policy known as “termination” (during the 1950s and 1960s Congress systematically terminated federal recognition for many tribes), the ILTF study focuses on land being returned to federally recognized tribes.
B. Who is transferring the land, and who is paying for it?
Entities transferring land to tribes run the gamut. Individuals may deed or bequeath land to tribes. Local government units (LGUs), or the state or federal government, may directly deed land to a tribe via legislation or ordinance.
The survey also identified other entities that are integral to a deal. For example, non-profits may provide significant funding or financing for a deal or act as a pass-through owner. Lenders may also be involved.
C. What is the historical importance of the land?
In addition to determining the address, legal description, and city and state where the land is located, it is important to note whether land is on- or off-reservation. ILTF also tracked whether a parcel of land was within the tribe’s historic territory and under what treaty or other mechanism the parcel left tribal control. That may influence how a tribe ultimately uses the property and whether the tribe is able to place the land into trust or use it for certain other purposes.
D. What are the essential deal documents?
While they can be private or otherwise difficult to locate, the legal documents that made a transaction possible are singularly helpful as examples for future deals. Wherever possible, the team reviewed property records, public acts (where an LGU or government was the transferor), financing documents, environmental assessments, and any other records available.
E. What is the history of the deal itself?
Finally, each case study includes a brief narrative describing the deal’s history. Each narrative includes some or all of the following: the property’s importance to the tribe or other historical context; a description of the property; any related deals; the reason why the sellers or lessors made the transfer; the “pros and cons” of deal (such as restrictive covenants on the land, contamination, etc.); any opposition to the deal; the deal’s current status; and any other important details.
F. A special note on the ongoing need to refute misconceptions about tribal land
Public education and relationship-building are almost always necessary to accomplish a land-back project, with many deals taking years to accomplish. In many of the ILTF example deals, a common, if intangible, element emerged: the need to debunk myths about tribal land ownership. This can place an additional and disproportionate burden on the tribe to educate, when the tribe was very often unjustly dispossessed of the land in the first place.
It is important to understand that when a tribe acquires a parcel of fee land off-reservation, with few exceptions, the parcel remains subject to the same rules and regulations (zoning, tax, public safety, and others) as other fee land in that jurisdiction. A tribal entity becoming the owner of fee land off-reservation does not change the pre-existing legal jurisdiction that a state or LGU has over that fee land. Likewise, if easements or other covenants exist on the land, they stay with the land, regardless of the transition to a new tribal owner.
It is only when the federal government takes off-reservation land into trust on behalf of a tribe that a parcel will even potentially become exempt from certain rules and restrictions that otherwise apply to land within that jurisdiction. Taking off-reservation land into trust is a multistep, and often multiyear, process that involves the opportunity for state and local comment, and the use of trust lands is subject to detailed federal regulations and limitations. Once an off-reservation tribal parcel goes into trust (and tribes do not seek to do this with all their off-reservation holdings), the parcel is exempt from state and local tax, and the tribal owner will have more jurisdiction (although often not exclusive jurisdiction). Tribes and local entities often negotiate memoranda of understanding (MOUs), either at the point that land is returned or at the time a tribe submits a fee-to-trust application to the federal government, to address matters of mutual concern, like zoning, payments in lieu of taxes, environmental and other regulation, and other matters.
IV. Overall Themes
In the initial phase of the survey, ILTF located and prepared case studies on approximately 140 land transfers involving more than 90 federally recognized tribes or consortia of tribes across 30 states. As noted, the study includes some high-profile of land returns to entities that are not federally recognized, and which are clearly marked as such. ILTF and its lending arm, Indian Land Capital Company (ILCC) have been directly involved in funding or otherwise facilitating numerous transfers over the past twenty-plus years, and those examples are also listed.
While the purpose of the database is to provide land-back deal examples and encourage future transfers, rather than make findings, the following themes emerged:
There is wide diversity in the various paths by which tribes are getting their land back, and many transfers take years to navigate regulatory and other hurdles.
Many transfers are relatively small in terms of acreage and are happening on a local level, like return of park land or burial mound, cemetery, or other sacred sites.
Even where a project is publicly hailed as “land back,” tribes are often simply finding ways to buy back on- and off-reservation land from private sellers for conservation, governmental, business, or other purposes.
Where large tracts of forest or other relatively undeveloped acreage is transferred with the financial and other aid of environmental or conservation non-profits, or where another government is transferring land to a tribe, the land often comes with significant conservation easements or other permanent limitations on the tribe’s ability to determine use.
It is challenging to gather all relevant deal documents even when a transfer is from another government, given all the regulatory requirements to transfer land.
As expected, examples from across the country are instructive and helpful precedent, particularly for state and LGU actors.
V. Conclusion
Assembling a database of transfers of land back to tribes is, and always will be, a work in progress. There are more examples of people and governments returning land to tribes every day. Because of this level of interest, new issues arise. For example, just because some entity or individual wants to give a tribe a parcel of land somewhere off-reservation does not mean a tribe will want it. Distance from the reservation can make management difficult. If a tribe cannot convert the land to trust status, the tribe will have a new obligation to pay property taxes, as well as to comply with easements, rights-of-way, and other obligations. Potential contamination or untethered mineral rights associated with the proffered land are also important considerations. ILTF plans to make periodic updates to the survey and to continue facilitate land back transfers wherever possible, a core part of its mission to put “Indian Lands in Indian Hands.”