Introduction
Turquoise has long been used in Diné (Navajo) jewelry, arranged in clusters. When worn by women, they proclaim their familial status as matriarchal leaders of many generations. Men and women leaders in a unit may wear clustered jewelry, with the matriarch having the most ornate arrangement to show her status. The matriarch is responsible for disciplining, nourishing, and ensuring harmony through passing down generational knowledge of how their unit has approached living, working, and self-governing. Riders, called pointers (naalchidi), would connect the units. Units spoke with and learned from one another through these riders who are both men and women.
The inner workings of each unit are each unique and not discussed outside Diné families. They are considered to be sacred knowledge, not to be shared with outsiders, for many, many reasons linked to nearly 175 years of broken promises of friendship, tranquility, prosperity, and support by the United States, which it seemed, was just to lull tribal members into peacefulness while the real plan was to drive them out. In 1863, the units were destroyed wholesale in a U.S. Army-led campaign. The Diné people in every community that could be found were rounded up, and those surviving brutal captivity returned to a highly regulated reservation in which Diné land-based cultural life has been steadily dismantled, generation by generation, for now 150 years.
This article is about how the unique Diné units may be revived using the same legal framework that dismantled them, with the legal profession taking the lead from indigenous law. The article’s primary task is to begin a conversation on culturally faithful structures and entities that can be innovated using existing legal tools, without compromising indigenous laws.
The Navajo Treaty of 1850 promised the Diné people protection and “permanent prosperity and happiness” if the Diné allowed the United States to establish a military and trading presence through an agency office, forts, and trading posts in their region. The first soldier fort was built at Fort Defiance in 1850, and the first trading post was built adjacent to Fort Defiance. Practically from the moment of their establishment, U.S. military and trading presence seemed to exist to ensure the dismantling of all traces of Diné civilization. Destruction was relentless, one Diné unit at a time in the “troubled period,” náhondzoodáá’, and then all units rapidly in 1863, when the U.S. Army cleared out all Diné, and other area tribes, in a brutal scorched earth campaign, torching homes and farms, destroying all waterholes, taking all livestock “when every living being became an enemy that finished in death,” t’aa ałtso anaa’ silii’.
After near-starvation and a promise that they would be safer and well-fed under U.S. Army protection, thousands of Diné surrendered at Fort Defiance in the winter of 1863 and were force-marched over 300 miles to a makeshift “reservation” at Bosque Redondo adjacent to Fort Sumner. Bosque Redondo came to be called H’wéeldi or the place of horrors. Nearly 10,000 Diné were imprisoned at H’weeldi for five years, and fewer than two-thirds survived.
The original lands of the Diné—Dinétah—are vast. Dinétah is the sacred area encompassing a large area of northwestern New Mexico, southwestern Colorado, southeastern Utah, and northeastern Arizona, including the great rivers—the Green River, Colorado River, Little Colorado River, and San Juan River. Dinétah is generally marked by the four Sacred Mountains corresponding to the four cardinal directions—Blanca Peak to the east, Mount Taylor to the south, San Francisco Peaks to the west, and Hesperus Mountain to the north. There are two other sacred peaks—Gobernador Knob where Changing Woman (the Matriarch) came into being, which is the heart of Dinétah; and Huerfano Mountain Dził Ná’oodiłii, the home of Áłtsé Hastiin (First Man) and Áłtsé Asdz´ą´ą (First Woman), which is the only peak of all the sacred peaks that lies inside the current federally established reservation. Dinétah is the place of emergence, where the Twins Monster Slayer and Born-for-Water played, a blessing from the Holy People. Within this area, the land is also described by sacred sites, such as the sacred female mountain, Black Mesa, Dziłíjiin; the sacred male mountain, Ch’óshgai; the head of Diné bikeyah, the male Navajo Mountain, Naatsis’áán; and the protective head of the cradleboard, Rainbow Bridge, Tsé’naa Na’ní’áhí. Dinétah has the literal translation of “Among the People,” meaning relationships and blessings, not boundaried territory.
Land did not belong to humans in the beginning, and we always acknowledge that. The homelands are blessings for us, yet we do not own them. Unlike how non-Indigenous people approach land, land is not property, nor are the resources within land to be commodified. Land is the giver. If we take care of it, the land gives us back everything.
The destruction of Diné communities by the United States, and the establishment of the boundaried Navajo reservation together with numerous private and governmental land parcels, effectively terminated the free movement and open practice of Diné civilization.
Diné are fiercely independent, highly individualistic yet also invested in belonging to units. T’áá hwó’ ají t’éego is translated as “it’s up to you, your individual efforts, hard work, and determination.” More apt is “it’s up to us.” This involves all of us, including Mother Earth working with us, and every living being who is aware that actions have an effect on the balance of one another. This includes speaking with civility, and always managing our resources with an understanding that others will need to use them after us. T’áá hwó’ ají t’éego also means “you decide; you decide whether to comply, you decide whether to be self-sufficient, you decide whether to learn.” Once a decision is made, it is Ííshjąshį’ bihwedínoota,’ “let’s try this. Let’s see where it takes us,” or “if it is to be, it is now up to me/us.” The duty of individuals to choose to act in balance with other beings, and to arrange for life in an integrated manner, is fundamental.
Herb Yazzie was Chief Justice of the Navajo Nation Supreme Court for more than a decade. In his journeys across the Navajo Nation, he is invariably asked if Diné civilization—manifested through its values and principles (bitsé siléí)—can be revitalized in place of reservation laws that were put in place by the U.S. federal government more than a century ago and that today have even been adopted by the Navajo Nation’s own tribal government. In the late 1990s, Yazzie had been part of a task force assembled by Edward T. Begay, the Speaker of the 19th Navajo Nation Council, to explore engrossing bitsé siléí into modern tribal law. Other group members included Laura Wallace, Henry Barber, Mike Mitchell, and the late Albert Hale. In 2002, the Navajo Nation Council added a remarkable chapter to Title 1 of the Navajo Nation Code (N.N.C.), entitled “The Foundation of the Diné, Diné Law and Diné Government,” with the verbal bitsé siléí not included in the writing, but plainly declared as “The Foundation of Diné Law,” Diné Bi Beehaz’áanii Bitse Siléí. Beehaz’áanii means “this is what holds it together” and bitse siléí means “principles.” This foundational portion of the 2002 law, pointing to the verbal bitsé siléí, is widely referred to as the Diné Fundamental Law, hereinafter referred to as DFL in this article.
Invariably, Yazzie would explain that the enacted acknowledgment of the bitsé siléí points the way for the people themselves to create their own local governance tools. When asked what a governing system under DFL would look like, he explained that it is whatever each community decides it to be, so long as the values and principles calling for relational balance among living beings, the bitsé siléí, are at their foundation. The governing systems should include the roles and knowledge built up across generations, especially the familial systems that are the center of Navajo Nation existence.
The Diné phrase for its traditional unit is t’ááłá’ k’ǫ‘diltłi’dóó biyaadahoo’á’ígíí, which means “reared around one fire” or sometimes translated as “immediate family,” which has no correlation to the same phrase in English. This familial group, including its child members, has “Diné interests,” bídadéét’i’ígíí, in the management or governance of the group and land as a whole. The federal government’s use of blood quantum to define tribal membership was not traditionally used. You would be a member of a clan that embraced you, no matter your blood quantum. The foundation is on mutual choice. A modern Diné government—central or local—based on such a foundation has not yet been given an opportunity to form.
The word “government” is unexpectedly difficult to explain. It is a catchall word that means different things depending on the purpose for which the government was formed. The think tank Nagrika, which creates knowledge to enable citizens in small cities to shape “unique, authentic, and resilient cities,” writes, “Governance is when someone guides us, helps in regulating ourselves, and gives us a structure to operate within.”
Driving across the Navajo Nation, one does not easily find matriarchal-centered units or clusters or rings of settlements surrounded by farms and livestock. One will see scattered single-
family homes, often of shabby construction and trailers with no paved roads leading to them, alongside housing projects, with rarely any signage for local enterprise, gardening or farming, or even traces of grazing livestock. Decades of exploitation have left deep scars that crisscross the beautiful canyons and plains. Unseen and operating in shadows, separated by land use regulations that work against Diné clan bonds, matriarchal units informally persist.
We briefly discuss the Diné people’s pre-colonized way of life and examine how their historical trauma has culminated in a reservation system that is inconsistent with Diné Fundamental Law. Additionally, we discuss existing legal tools and structures—such as integrated resource management plans, unique tribal entities, and cooperatives—to analyze how existing legal mechanisms can be utilized without compromising the immutable character of DFL.
I. Matriarchies and Diné Fundamental Law
Traditional Diné law recognizes the matriarch-led group as the primary member unit alongside other units of Five-Fingered Beings. Pointers, naalchidi, rode frequently between the units, who would only temporarily hold those roles. Matriarchs embody mutual nurturing; naalchiidi embody problem-solving beyond the communal group sphere. Such roles in Diné culture are dependent on ability to perform. There is no entitlement to these roles. The matriarch’s role is to ensure the physical wellness, cohesion, and capable functioning of the unit as a team, which includes training other matriarchs who help her and who may replace her in future. The ultimate nurturer of everyone in the unit, the matriarch would further function as the unit’s capable disciplinarian. Groups arrange themselves, and choose their leaders—traditionally, with women at the center. A well-functioning unit may have multiple matriarchs whose children are raised together and continue teamwork in their generation, ahił ná’anísh, always in informal arrangements without governmental support, as the matriarchy is not a legally recognized structure (yet).
In 1980, the Navajo Nation Supreme Court (NNSC) emphasized the matriarchal role in keeping a unit together, requiring that land use permits remain in the hands of the mother, who was the nurturer of the children and was actually using the land. In 2007, the court explained that Diné women have an elevated role and authority. They are “central to the home and land base. They are the vein of the clan line . . . . This is why the women are attached to both the land base and the grazing permits.” Elders emphasize that matriarchal authority is not gender discrimination. It is simply a role that is taken on that must embody complex qualities.
Under DFL, you are a member of a clan that embraces you, no matter your blood quantum. Relations are by mutual choice. Smaller groups may form, distinct from the matriarch. For inter-group problem-solving, the communal unit, rather than individuals, would be the member unit with naalchidi speaking for them. In 1978, the NNSC affirmed that the Diné “family” or familial unit are members of a household, whether or not related by blood.
The crucial role of women is expressed in the principles established by White Shell Woman and are commonly referred to as Yoolgaii Asdzaan Bi Beehazaanii. These principles include Iina Yesdahi (a position generally encompassing life; heading the household and providing home care, food, clothing, as well as child bearing, raising, and teaching); Yodi Yesdahi (a position encompassing and being a provider of, a caretaker of, and receiver of materials things such as jewelry and rugs); Nitl’iz Yesdahi (a position encompassing and being a provider of and a caretaker of mineral goodness for protection); and Tsodizin Yesdahi (a position encompassing spirituality and prayer). For the most part, Navajos maintain and carry on the custom that the maternal clan maintains traditional grazing and farming areas.
A notion that emphasizing matriarchs might be seen as discrimination between genders stems from a view of the role as also a property owner, in which land use permits are viewed, under Anglo American concepts, as personal or real property and not what they traditionally are—a familial duty and a unit role. Navajo Nation tribal statutes have long conformed to Anglo-American definitions of property and family, in spite of cultural differences. They have unnecessarily internalized the colonized conception of family and land commodification while, in practice, Diné families resist making wills concerning leases and permits, and are hesitant to probate their familial leases and permits upon the death of an elder. Such probate will inevitably result in fragmentation. Not conforming to legalities inevitably leads to a myriad of problems in the family’s future use of their land.
The reason for tribal government taking on Anglo American concepts at the expense of tribal culture may be traced to the Navajo Treaty of 1868 (1868 Treaty). Signed by twelve Diné men assumed by the United States to be chiefs or headmen, the tribal signors pledged that the tribe would “compel their children, male and female, between the ages of six and sixteen years, to attend school” to “insure” their civilization. It was not immediately grasped how this treaty provision would be used to ethnically cleanse Diné culture and language.
The naalchidi Manuelito was one of the 1868 Treaty signatories. When after its signing thousands of Diné survivors at H’wéeli gathered to begin their return journey to the portion of Dinétah to which they would be confined, Manuelito is said to have raised his arm westward, saying:
See where my arm is extended. We are going back to our ways of life. What we have heard from the federal government is that we are going to learn their ways. We are going to learn their language, and it is written in the Treaty. But one thing I want you to understand, we must never forget our Navajo ways, our language, and our ceremonies. This is what connects us to our Navajo world.
After they reached the newly established Navajo reservation, the Indian Agent, backed by the U.S. Army, began snatching Diné children and transporting them hundreds of miles to U.S. government or Christian missionary-run boarding schools. The system of boarding schools was an unsafe system with “genocidal impact” that sought to ethnically cleanse Native American culture and language under a policy to “kill the Indian, and save the man.” In one year, five of six Diné children sent to the U.S.-run Industrial School in Carlisle, Pennsylvania died, including Manuelito’s own son. After years away, Diné boarding school returnees were unfamiliar to their own families, having lost their language and even changed their manner of relating and thinking. They formed associations to support each other, convinced that they needed to lead the way to “civilize” their own people. Generations of young people have asked their elders how they allowed this ethnic cleansing to happen. A frequent response is that it was intended to protect Diné children amid the fear that the calvary would come back. The modern reservation era has seen loss of hope and language across generations, with many present elders part of the boarding school generation.
The 1868 Treaty imposed individual male adult-centered schemes of reservation land holdings on reservation communities, authorizing the Indian agent to issue individual certificates of land holdings only to adult men that would be recorded in a “Navajo Land Book.” In the Allotment Era from 1887 to 1934, reservation land subdivided into square plots carrying “trust patent” certificates, lasting up to twenty-five years, that could be converted into patent-in-fee or outright ownership, were issued to individual men. On the Navajo reservation, allotment losses resulted in a “checkerboard” of land parcels consisting of allotments, tribal trust, private, railroad, and state lands across nearly all of the Eastern Navajo Agency. These drove matriarch-centered arrangements further into the shadows.
Oil was discovered on the reservation soon after it was formed, followed by discovery of immense beds of fire clay, gypsum, iron ore, borax, bituminous coal, uranium, and natural gas wells. The reservation boundaries thereupon expanded by Executive Order and Acts of Congress to its present size of 23,000 sq. miles. Federal regulations encouraged reservation-based exploration and mining with no required reciprocal investment in community life.
The infrastructure needs of the United States on the reservation were prefigured into the 1868 Treaty. The signors promised that the tribe would not oppose “railroads, wagon roads, mail stations, or other works of utility or necessity” as deemed by the United States, yet also treated these as infrastructure for use by the United States, not the tribe. Infrastructure was installed for federal governmental or business use; for example, the strip mines at Black Mesa, Arizona, had electricity, water, and roads, but this infrastructure never extended to the surrounding communities. The reservation has large trunk roads with federal agency and business-built tributary roads serving population hubs, with otherwise few paved roads, limited electricity, and even less available water-utility service beyond the federal/business infrastructure system. Families live in single-family housing projects or, otherwise, in challenging circumstances—often off-road or without services—across the Navajo Nation.
In 1923, the Bureau of Indian Affairs (BIA) established a tribal council solely to approve oil exploration leases. Tribal members supported by the BIA to the council were invariably boarding school returnees who could be counted on to be assertively pro-mineral exploration and mining. Traditionally minded Diné on the tribal council objected, saying that “land is not a commodity.” However, all voted to approve mineral lease applications despite no requirement of the mining companies to grow community infrastructure. This was due to dependence on funds from mineral royalties and bonuses to even meet and function as a government. Oil drillers were also known to have “bored holes indiscriminately to capture all they could. Waste was rampant.”
Rose Yazzie described how her family and surrounding family units were required to relocate to make way for the Peabody Coal Mine at Black Mesa and then struggled for ten years to obtain electricity with no help from Peabody. Her family is still without a pipeline for running water. To reach her home, for over fifty years she passed under hills of toxic coal mine sludge, whose coal gasses fill the air like fog. In 2019, Peabody Coal Mine ceased operations at Black Mesa after depleting the coal and vast quantities of underwater aquifers. With Peabody’s closure, the sludge hills have been mostly abated, but layers of coal dust persist in Black Mesa homes, and road and water access remain challenging. Meanwhile, Rose has seen her children move off-reservation, needing better conditions for their own children.
Today, mineral resources are much depleted, with only some unused Navajo aquifers and helium remaining. In 1979, the largest nuclear spill in the United States occurred on the Navajo Nation, when a United Nuclear Corporation dam at Church Rock failed, spilling ninety-four million gallons of radioactive uranium waste into the Puerco River.
Dinétah is a living being with whom generations-long relationship is sustained, not a commodity that can be ceded, surrendered, held, or exchanged like property. Diné nihi keyah, or Diné bikeyah, is simply wherever one’s moccasins touch the ground between the Sacred Mountains. Through the imprint, color, and style of a moccasin, a relationship is asserted with the land, showing respect for the color of the soil and all the stars in the universe. Land, itself, is without boundaries, only existing in relation to the universe and all beings. This approach to Dinétah and all living beings is fundamental.
Communal stewardship is a primary value not only in Diné units, but in all indigenous communities. On the Navajo Nation, as on other tribal reservations, such stewardships exist in spite of legacy federal regulations, which dismantle communal arrangements and have not provided legal frameworks to sustain them. This includes physically clustering homes and activities, as well as communal livestock herding by seasonal cycles, which the United Nations Educational, Scientific and Cultural Organization (UNESCO) has termed “transhumance” as practiced worldwide. Navajo transhumance persists underground in the Chuska Mountain communities. In 2023, UNESCO designated transhumance an intangible cultural heritage. Generational arrangements and understanding between communities for stewardship, including “transhumance,” supported “live, work, govern” ways of life that were effective and brought surpluses to associative groups self-arranged around local beneficial land use.
We bear in mind that in 2021, the White House Council on Environmental Quality and the White House Office of Science and Technology Policy, expressed their joint commitment to elevate indigenous traditional ecological knowledge (ITEK) in federal policy decisions and directed federal agencies to include ITEK in their policies, describing ITEK as “a body of observations, oral and written knowledge, practices, and beliefs that promote environmental sustainability and the responsible stewardship of natural resources through relationships between humans and environmental systems.” The Biden-Harris White House acknowledged that “[t]ribal and [n]ative communities have stewarded these lands since time immemorial . . . . Their voices and their expertise are critical to finding solutions to address the climate crisis, an issue that disproportionately affects Tribal and Native communities.” In 2022, after a period of consultation with tribes and tribal communities, the White House released a new government-wide guidance on recognizing and including ITEK in federal policies, management, and decision-making as a means to “fulfill federal trust responsibilities and recognize tribal sovereignty and self-governance.”
The U.S. Supreme Court has emphasized that Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government. A trio of early U.S. Supreme Court cases that acknowledged the doctrine of discovery and the federal government’s treaty-based trust responsibility also established the doctrine of inherent tribal sovereignty.
In its most basic sense, inherent tribal sovereignty asserts that tribes are free to honor and preserve their cultures and traditional ways of life. Even if by treaty they are no longer “possessed of the full attributes of sovereignty,” tribes remain a “separate people, with the power of regulating their internal and social relations” and “have power to make their own substantive law in internal matters.”
International law also broadly recognizes indigenous rights to self-determination, especially indigenous rights to make governance choices about their retained lands and resources according to their own land tenure systems. Globally, ITEK is equal, and not subservient or complementary, to Western ecological practices. International law has also sought to protect with particular emphasis on “due recognition to indigenous . . . land tenure systems.”
As the twentieth century ended, members of Navajo Nation tribal government took it on faith that the Tribe did have such powers. When enacting the DFL at Title 1 of the Navajo Nation Code, the Navajo Nation Council found that DFL was “immutable” and provided “sanctuary for the Diné Life Way.”
Herb Yazzie recollects that the DFL—written in English with a Diné language section—was intended to point to the verbal instructions of the Holy Ones without specifying them in writing. Much of the written DFL frames the “rights and freedoms” of the Diné using American legal and governmental concepts not based on relationships. According to Yazzie, the thought was that the written DFL may be improved later with the participation of the people, who would be given voice by the legally trained. In other words, the written words were a placeholder until the legal profession evolved sufficiently towards more humanistic understanding in order to play its proper, human role. The Diné language portions assert Diné identity as a people.
Ádóone’é niidlíinii,Nihinéí’,
Nihee ó’ool ííł,
Nihi chaha’oh,
Nihi kék’ehashchíín.
Díí bik’ehgo Diyin Nohookáá Diné nihi’doo’niid.
Kodóó dah’adíníísá dóó dah’adiidéél.
Áko dííshjįįgi nitsáhákees, nahat’á, iiná, saad, oodlą’,
Dóó beehaz’áanii ał’ąą ádaat’éego nihitah nihwiileeh,
Ndi nihi beehaz’áanii bitsé siléí nhá ndaahya’áá t’ahdii doo łahgo ánééhda.
Éí biniinaa t’áá nanihi’deelyáhąą doo níłch’i diyin hinááh nihiihdaahya’ąą ge’át éigo,
T’áá Diné niidlįįgo náásgóó ahool’á.
The central concepts of DFL are k’é (relationships, a deep feeling of responsibility to others and the duty to live in harmony with them) and hózhǫ (balance, but specifically a state of being in which an individual’s obligations are met in the way required by DFL towards spirit, others, and the natural world, including sacred sites and waterways, all being an integrated whole). It is not possible to separate these elements.
Together, k’é and hózhǫ integrate relationships into the obligation to maintain wellness of all beings. In 2002, the Navajo Nation Council instructed that tribal government “must learn, practice and educate the Diné on the values and principles of [DFL].”
The challenges facing lawyers who seek to assist development of indigenous law on reserved indigenous lands are substantial. Oral law, and even written multicultural, multilingual laws in other countries, are not included in American legal training. Law schools do not train lawyers to uphold the verbal over written laws, especially written laws that include imperative features like “shall” or “must,” which are standard, identifiable sources of law. American law students are trained on written constitutions, statutes, administrative regulations, and common law.
Even more of a challenge for lawyers is the complex land use management schemes required on American reserved indigenous land masses, and specifically on the Navajo Nation, which is discussed in the next section.
The immutable portions of the DFL “are not man-made law and may not be ‘enacted’ by individuals or entities or the Navajo Nation Council, they may simply be acknowledged by our man-made laws.”
Twenty-two years later, lawyers still do not understand how to use the DFL, or even what it is. Writing in the Navajo Times in 2022, Herb Yazzie said,
There is no doubt that lawyers have been in charge of us, to the extent that we do not recognize our way of life in our own tribal laws. In almost every instance, the lawyers are unfamiliar with Diné customary daily life—our ceremonies, our relational arrangements, our stewardship role.
Without knowledge of our arrangements, lawyers who draft our laws and advise our leaders cannot uphold us. Meanwhile, our leaders rely on [the lawyers’] “expertise.”
There is an insight that I have from my 50 years of being advised by lawyers who impress upon us the need for compliance with laws. There are many who believe their job is to press human beings into existing boxes. Overall, lawyers lack imagination. They fulfill their contractual duties.
What the lawyers do not realize is the extent to which they control and limit us without asking us in a manner that would help decolonize our thinking. The limitations imposed by various interpretations of laws prevent our communities from even daring to express how the preservation of our way of life, our government, and our land use should be done.
II. Disentangling Diné Culture from Reservation Leases and Permits
The modern Navajo Nation is the size of West Virginia, with special conditions imposed by federal law on specific areas as they were added to the reservation over time. While there has been a central tribal government since 1923, different federal agencies have ultimate oversight for each incrementally added reservation land mass, depending on how and why each area came to be part of the reservation. The BIA has ultimate responsibility over “Big Navajo” (a nickname given to lands reserved by the 1868 Treaty, by later Executive Orders, and by the 1934 Arizona Boundary Act) as well as satellite community areas of Alamo, Tohajiilee, and Ramah. The Bureau of Land Management (BLM) and the Federal Indian Mineral Office (FIMO) are responsible for allotments, located primarily in the Eastern Navajo Agency “checkerboard.” The Office of Navajo-
Hopi Indian Relocation (ONHIR), answerable directly to Congress since 1988 and now winding down, long administered lands taken into trust for the Navajo Nation under the 1974 Navajo-Hopi Land Settlement Act. The State of Utah administers, and collects mineral royalties, on strips of Navajo reservation land in Southern Utah. Depending on the area, tribal member users and occupants may have only surface rights; have surface and subsurface rights; may or may not keep livestock; or may otherwise be limited to very small homestead areas.
Overlaid on this complexity has been the imposition of the single-use individually-held lease and permit system. Federal law provides a customary law option for tribal land uses and does not mandate leases and permits for reservation tribal members. However, farming and grazing are subject to permit restrictions for conservation reasons unless the Tribe obtains regulatory waivers, including through methods discussed in Section IV. The BIA used leases and permits as the sole method of land use management for every purpose and everyone on the Navajo Nation. When the Tribe took over lease and permit management from the BIA in the early years of the twenty-first century, it did so without exploring customary alternatives for its members. The early perception was that BIA recorded leases would attract banks and investors, which has not happened.
Prior to the Civil Rights era, only adult males considered heads of households could hold reservation leases and permits, and then only in their individual names. Diné families are restricted in the manner in which they may use their land. For example, families cannot legally pursue business and live on the same land, as each type of land use requires a separate lease or permit. This system has become so calcified that Diné often resort to underground economies and illegal businesses rather than seeking real reform from policy makers. DFL being inherently non-confrontational, the reforms necessary to live, work and govern pursuant to DFL would require agreement rather than confrontation—a meeting of minds among tribal policy makers, lawyers, and communities on how to effectuate reforms.
The first known issuance of single use, time-limited leases for reservation land use was via the 1920 Tribal Mineral Leasing Act, which facilitated oil explorations. Later, in the 1930s, the United States began requiring grazing permits across tribal and public lands, setting limits on livestock carrying numbers under a belief that this system would reduce over-grazing and save other parts of the continent from future Dust Bowls. In 1955, the Long-Term Leasing Act at 25 U.S.C. § 415 formalized the reliance on time-
limited BIA-approved leases on restricted Indian lands for a variety of purposes, with length of the lease dependent on the use purpose: ninety-nine years for business or agricultural uses; seventy-five years for public, religious, educational, recreational, or residential uses if such term is provided for in tribal regulations; and twenty-
five years renewable one time for mineral exploration, development, or extraction. Ensuing regulations detailed when leases and permits are necessary, enabling customary law to otherwise be used through undefined “tribal land assignments” or similar instruments that would authorize community land uses under tribal laws. While tribal land assignments under tribal law provides the greatest potential for tribal envisioning ingenuity, such alternative methods of using land have never been pursued by the Navajo Nation.
The Navajo Leasing Act of 2000 (2000 Act) amended 25 U.S.C. § 415 (e) by conferring on the Navajo Nation the discretionary privilege to manage its own leases without need for BIA approval for each lease, provided that the tribe enacted tribal leasing regulations that were consistent with federal regulations and approved by the BIA. Intent on self-governance, the Navajo Nation established conforming tribal regulations for business leasing in 2006 and for all other surface leases, except grazing, in 2014, both duly approved by the BIA. The result is that the Tribe has effectively taken on the responsibilities of the BIA under tribal laws that mirror BIA regulations supplemented by some cultural elements that do not conflict with BIA established notions of individually-held leases. In 2008, the Congressional Budget Office determined that the 2000 Act provided no federal funding, since it contained “no intergovernmental mandates.” The absence of federal funding for the Navajo Nation’s self-management of leases and permits has meant management costs are passed on to the land user, including responsibility for cadastral, anthropological, and environmental surveys that can soar to a few thousand dollars for individuals seeking leases and permits for any purpose.
In 2012, the Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act) amended 25 U.S.C. § 415 (h) by extending to all tribes the unfunded privilege provided to the Navajo Nation in the 2000 Act.
Tribal stakeholders and experts have reported a general lack of commercial credit on tribal lands due to land use restrictions, with most tribal lands able to be used as loan collateral only in certain circumstances or with federal permission. As a public land of the federal government with special tribal trust status, the reservation has conservation restrictions that prevent collateralization of land under both federal and tribal laws. The Navajo Nation Environmental Policy Act (NNEPA), which supplements NEPA, recognizes that “protection, restoration and preservation of the environment is a central component of the philosophy of the Navajo Nation” and contributes to maintaining harmony and balance between humankind and nature.
Diné land use familial units today exist informally, and only when there is consensus across individual permit holders and familial members. The unit is without legal form and is governmentally unsupported and unrecognized. The Navajo Nation has not provided clarity to the “customary trust” advocated for by its high court, perhaps because such a legal entity exists nowhere else in the world, nor is “trust” an apt term for the Diné familial unit. Diné traditional roles and interest in land use are extra-
legal, incredible as it may seem, on the Diné people’s own territory.
The existing reservation lease and permit scheme limits and controls human presence and footprint on the Navajo Nation’s own community land. Use and occupancy doesn’t generationally flow, and instead is legally treated as time and use-limited, at best life estates transferable through “probate” tribal court processes that struggle to perpetuate uninterrupted generational familial land on the one hand, and limitations against generational wholeness on the other hand. It must be specially noted that business leases may not be probated and, instead, revert to the Navajo Nation upon decease or expiration. Business improvements are separately disposed of when leases and permits expire, either reverting to the tribe or removable for sale where provided for in a lease. The requirement for leases and permits to be in the names of individual adults, the different time limits attached to different land use lease purpose, as well as complex conditions that must be met before lease issuance (e.g., conservation planning and restrictions) means that leases and permits are issued by single-use purpose and are slow to issue. The notion that one’s time on ancestral land is time-limited by law if business is conducted on that land also discourages community-business site leasing. This discourages families who have built dwellings and farm buildings on multigenerational land from engaging in business.
Families are often fractured by disputes over whose name will be on a lease or permit. Additionally, family members living in off-
reservation towns and cities regularly obtain reservation leases and permits to hold as their personal stake, with no present plan to beneficially use the land. As a result, permittable land is now difficult to find, driving young people from the reservation. It is also not uncommon for farm permits to be many miles from the farmer’s homesite lease area with no ability to build a home on the farm permitted area, leaving farm equipment and facilities unprotected and existing in isolation from livestock, homes, and businesses.
Regulatory limitations place incredible burdens on the practice of Diné land-based culture. The regulations may be structural or holdover paternalism from days when the federal government viewed their treaty-based trust responsibility as similar to the relationship between a guardian and a ward. Restrictions have been in place for so long that, even in the present era of tribal self-
determination, tribes cannot disentangle them and continue to build policies around them. The BIA has since redefined their trust responsibility and expressly disavows any guardian-ward relationship with tribes, stating on its website that “[t]he Federal Government is a trustee of Indian property, not a guardian of all American Indians and Alaska Natives.” Tribes and the United States continue to dispute the scope of the trust responsibility. For example, the U.S. Supreme Court recently held in Arizona v. Navajo Nation that “[t]he 1868 treaty establishing the Navajo Reservation reserved necessary water to accomplish the purpose of the Navajo Reservation but did not require the United States to take affirmative steps to secure water for the Tribe.” The United States, as trustee, continues to oversee the Navajo Nation’s management of its property through numerous restrictions.
The restricted nature of reservation land limits what local tribal community planning bodies perceive they have the power to address. In the Navajo Nation Code, every individual, Chapter, or entity, other than the tribal government or its wholly owned entities, must first obtain a land withdrawal designation prior to use. If the intention is to develop, then leases must be obtained, and only then is infrastructure addressed. This process creates a nether region, in which expensive infrastructure is built one lease at a time. Meanwhile, small-time lessees feel isolated and unseen. Some federal housing assistance programs use the term “leases,” which creates an impression that leases are necessary to access funding. Additionally, the BIA has decided that homesite or residential leases should be given “categorical exclusion” from expensive environmental impact statements as long as a lease contains four dwellings or less on no more than five acres. Yet, such leases increasingly separate family members from one another and discourage cluster living. The present system also prevents the integration of homes with farms and livestock.
The NNSC—long the custodians of Diné culture—believe that Diné communities must be relieved of the lease and permit system. In 1987, NNSC judges created the “Navajo customary trusts” with the intent to recharacterize leases and permits without running afoul of federal regulations. In 1991, a frustrated NNSC engaged in a frank discussion over such trusts in Begay v. Keedah, explaining that the “Navajo customary trust” was created by judges to speak about the true communal or group nature of permits. The “customary trust” was a judicial rejection of leases and permits with respect to Diné community stewardship. Asserting the communal nature of Navajo land tenure, the court stated that the federally invented lease or permit is not a form of land title in which there are individual rights at all. The court understood that leases and permits had no role in the Diné universe. The court stated that “Navajo judges knew they would have to supply a justification to get [BIA] officials to honor their decrees,” and “understood the concepts of communal land use and grazing permit tenure well. They also understood that the Navajo Indian agent and later the BIA agency superintendent operated using a different set of rules.”
Diné communities are aware of profound disorder due to improper relations with each other, with land, and with all beings. They are aware of blessings when caring for the land. Disorders are spoken of again and again at governmental and community meetings that discuss what needs to be done to make government work. Rarely do those responsible for governmental planning understand the possibilities of tools that may be used to design their own units and govern pursuant to DFL. The primacy of “stewardship” would drive different outcomes and require different planning tools than those imported from outside the Navajo Nation. Communal management of land and its resources could result in a land use and local self-governance system that truly fosters a “circular economy”—a change in emphasis from supporting large companies in seeking insatiable output-based profits, to economies that promote “a flourishing web of life, so that we can thrive in balance.”
The Navajo Nation Bill of Rights recognizes that unenumerated rights are retained by the people. The ability of the people to arrange their communal groups as they choose may be just such an unenumerated right.
Under the Navajo Nation Local Governance Act discussed further below, Chapter-based volunteer community land use planning committees (CLUPCs) meet regularly to discuss community land use plans (CLUPs). Studies on CLUPs show that they are frequently limited in scope in a way that impacts the effectiveness of the plans. Limitations include CLUP visions specific to the planning committee rather than the full Chapter, CLUP implementation by government entities rather than the Chapter itself, and a lack of representation of Diné traditional values in CLUPs. Individual Chapter CLUPCs may further feel constrained by the lack of a unifying tribal vision that allows local land use and governing control. The CLUPCs mostly address land withdrawn for public use, or designate business zoning, but have no mandate to help plan individually issued lease and permit areas, such as homesite leases, farm permits, and grazing permits. The result is no planning focus on individual permit infrastructure.
In 2018, numerous communities across the Navajo Nation, including regional bodies like the Western Agency Council (WAC) (comprising eighteen Chapters), voiced objections to new Navajo Nation Homesite Lease Regulations that had been enacted to receive BIA-approval for tribal self-management of leases. The new regulations ignored generational settlement and kinship, treating homesites as if they were no more than rentals subject to use and size restrictions that were even more severe than the federal government. In a resolution issued March 17, 2018, the WAC called for a foundational approach, finding that “the Regulation of the use of Diné Bikéyah must be holistically planned, enable continuation of the Diné way of life, and must be premised upon land use principles, laws and teachings embedded in Diné bi beenahaz’áanii.” The WAC further found that consensus among the Chapters must be reached for a
foundational document for use of Diné Bikéyah according to principles, laws and teachings in accordance with Diné bi beenahaz’áanii, to be drafted by consensus at the local level to truly reflect the values, goals and desires of the Diné, which will serve as the foundational document for all land use laws, said document to be approved by an initiative or a referendum.
III. Navajo Nation Local Governance Act—An Overly Timid Step Towards Reclaiming Diné Indigenous Governance
Prior to the BIA’s establishment of a Tribal Council in 1923, no single leader was given the power to speak for all communities. The matriarchal system was driven underground following return from captivity at H’wéeldi. However, generational stories attest that the communal matriarch units have persisted in guarded secrecy while Anglo American concepts, boundaries, and methods were imposed without regard for cultural patterns.
In practice, the federal government has used the doctrine of inherent tribal sovereignty to evade governmental responsibilities, including responsibility to provide reservation communities with a standard of living comparable to off-reservation communities or to ensure the survival of tribal culture. In United States v. Lara, the U.S. Supreme Court reaffirmed inherent tribal sovereignty while rejecting federal governmental responsibility to ensure its laws and policies are consistent with local tribal needs, stating that “the
[g]overnment’s Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the [United States] and those of the tribes changed over time.” Such a holding fundamentally oppresses the doctrine of inherent tribal sovereignty and has resulted in uncertainty among tribal communities and governments regarding the tribal “powers of local self-government” acknowledged since 1896.
The BIA divided the Navajo reservation into five administrative agencies and 110 local communities named “Chapters.” The tribal council consisted of representatives from the five agencies and met once annually. From 1937 to 1989, the unitary tribal council was led by a chairman, a system that halted due to a crisis involving public funds and the death of a law enforcement officer. In 1989, the unitary council system was temporarily restructured into a three-branch structure via amendments to Title 2 of the Navajo Nation Code, called simply the “Title 2 Amendments.” The three-branch structure was intended to give way to a permanent form of government that the people, themselves, would choose. Modeled on the federal government, the present tribal government is finding its structure static, rather than responsive; slow-moving, rather than the swift decision-maker needed to locally govern.
Formed to provide the “glue” for the union of the United States, the U.S. federal government initially generated much of its income through disposal of land. Article 4, Section 3 of the U.S. Constitution provided this authority over federal lands. As the United States expanded west, the doctrine of discovery provided the nation with exclusive rights to sell, transfer, and exchange lands possessed by tribes but not yet settled by Europeans. When treaties were signed that confined tribes to reservations, the U.S. Supreme Court held that the treaties imposed a “trust responsibility” on the United States to provide “fiduciary” or “guardian to ward” services according to what was promised in a written treaty, while not requiring the United States to perform the functions of an actual government. In short, trust responsibility services reflect treaties from more than a century ago that are frozen in time, written by the United States with a view to control, delimit, and enclose Indigenous American communities—falling far short of establishing or enabling a beneficial, functioning government capable of ensuring communities’ access and use of their own land and resources, and their own security and stability, according to the communities’ own evolving wishes and needs. To the present day, U.S. government insists on self-defining the parameters of their trust responsibility, resisting tribal governmental efforts to play an important role in that definition, which the Navajo Nation profoundly believes is their sovereign right.
As a unifying entity removed from geographic communities, the U.S. government has inflexible, rather than creative, functions. To appear dependable and accountable, its government structure is complexly compartmentalized and filled with internal firewalls. It has been likened to “a giant sedimentary rock, with layers upon layers of programs and regulations that have built up over time . . . and . . . so little coordination between them . . . .” Far from a governmental structure designed to locally govern, the federal government has been able to cost-effectively administer national parks and military reservations—land areas with limited human footprints. However, governing reservation communities with changing and growing population needs has been so difficult and cost-prohibitive that the federal government has pursued ending or rolling back its trust responsibility.
The federal government has actively pursued the breakup of reservations, first in the Allotment Era (1887–1934), followed by Indian Termination in the 1940s to 1960s whose intent was that “tribes should no longer be tribes, never mind that they had been tribes for thousands of years. . . . If you can’t change them, absorb them until they simply disappear into the mainstream culture.” Termination was followed by the Indian Relocation Act in 1956, which forcibly relocated thousands of working-age Native Americans to cities. When faced with rising activism against such policies, the federal government began its present policy of tribal self-determination and self-government with the 1974 enactment of Public Law 93-638, the Indian Self-Determination and Education Assistance Act (ISDEAA). A core feature of the ISDEAA is a new ability to delegate federal trust responsibility duties to tribes through “638 Contracts,” allowing the federal government to save personnel, facility, and administrative costs while appearing to support tribal sovereignty.
Legal scholars have described the ISDEAA as offering a dichotomy of choice for tribes. The federal government continues to dictate the scope of the trust responsibility even where tribal governments have assumed the burden of providing such services. Tribes who take on 638 Contract duties extensively, like the Navajo Nation, find themselves simply stepping into the shoes of the federal government, essentially becoming federal agents whose primary duties are to ensure compliance with federal trust responsibilities that they play no role in defining. The substantial funds that come with 638 Contracts presently fund a huge portion of tribal government.
The Navajo Nation government centrally manages nearly all its 638 Contract programs, which in 2021 brought in $100 million and employed over 5,000 people. Attorneys in the Navajo Nation Department of Justice and the Navajo Nation Comptroller ensure compliance with 638 Contracts, which are presently a critical sustained funding source for tribal government. Prior to the ISDEAA, the primary source of tribal funds had been through mining royalties and bonuses, which remain an important funding source. The Navajo Nation government continues to rely on extractive business payments as its primary approach to obtain income for services on the reservation, even though such income has historically been inadequate. In earlier boom periods, funds were provided to build community “Chapter” houses, but subsequent funding streams were insufficient to maintain them. Over the years, the federal government has prioritized revising rules to accommodate the extraction companies, which enables ready tribal governmental access to extraction-related payments. Across differently regulated and separately managed federalized areas, the Navajo Nation government has tried to function as a single government, enacting laws that attempt to unify the different land areas and communities who live in them.
The Navajo Nation has had to address its own internal activism centered on the form of government adopted in 1989, which was intended to be temporary. The push for local governance resulted from the Diné people’s call for reform in government, as the Diné people felt unserved by the bureaucracies of a centralized tribal government. A Government Restructuring Task Force including Albert Hale, Morris Johnson, Herb Yazzie, and Louis Denetsosie explored what seemed the only logical reform that would uphold Diné culture—maximizing self-government at the community level. Communities were dissatisfied with being unseen and unserved by their own government, which was far away in Window Rock with seemingly no ability to address their own local needs. 638 Contract funds never seemed to create local benefits nor were they spent responsively to local needs. 638 Contract personnel answered to Window Rock, which seemed to answer to the federal government. Local communities had no direct voice. After generations of BIA administration, for better or worse the Chapter system now stood in for communities. Familial matriarchal units were not legal communities in their own right.
The task force established a Government Development Commission leading to a proposed Local Empowerment Act intended to establish Chapters as a local governing system supported by the public treasury, with authority over most, if not all, local matters. In 1998, The proposed Local Empowerment Act was never enacted. In 1998, the Local Governance Act (LGA) was passed in its place.
Planning for the LGA included the hopes and dreams of generations of Diné. Local governance would empower local, establish local systems that would employ the doctrines of k’é and hózhǫ, thereby honoring and restoring a sense of traditional governance. The hope for autonomous communities spread across the Diné vast territory permeated the planning. Local governance would reverse the rapid decline of local life experienced since conquest by the United States. It would end the oversight of central tribal government over local matters, and it would streamline processes for improved local decision making, policy implementation, and the delivery of services. As former Navajo Nation President Albert Hale said regarding the LGA’s intent, “The power comes from the people, not from Window Rock and not from Washington D.C.’” Agreeing with Hale, the NNSC made power from the people a fundamental principle of Navajo Nation common law.
Chapters were formed by the BIA, out of ignorance of community life and a pressing administrative need for population counts. Because communities closed themselves off from federal authorities, interacting with the Indian Agent through naalchidi, outsiders could not see how the communities functioned. In 1922, the Leupp Indian Superintendent arbitrarily divided the five BIA agencies into numerous “Chapters,” which now number 110. Each adult Diné must choose and register at one Chapter in order for a census to be obtained.
The Navajo Nation did not formally recognize Chapters until the 1950s. By then, Chapters had become an accepted notion, relied on for meetings which took place outdoors, under trees, until brick and mortar Chapterhouses were built in the second half of the twentieth century using extraction-based royalty and bonus revenue. Chapters often provide the only gathering space. For a hundred years now, communities have used Chapters to gather, to share public information, and to express themselves through resolutions. Such Chapter resolutions have only advisory effect.
The entire Chapter system was shut down during the lengthy COVID-19 pandemic surge on the reservation. The closure lasted nearly two years and was an immense hardship, as programs that would convene at Chapters—for example, to coordinate volunteer youth to help clear obstructions from irrigation ditches, to give and take information, and to locally administer some benefits—could not do so during COVID-19.
With Chapters being the only option, the LGA Task Force based local governance on Chapters, assuming that Chapters could speak for their unseen communities and have a historical connection to local history and culture. The text of a 1995 version of the LGA described its purpose as “to recognize governance at the local level” and provide local “governmental authority with respect to local matters consistent with Navajo law, including custom and tradition.” The written purpose is broad, unambiguous, and supportive of indigenous cultural practice.
On December 21, 1995, this version of the LGA was presented to the Navajo Nation Council together with a cautionary memorandum from the tribe’s attorneys that called attention to multiple issues concerning control, liability, and funding. In 1996, the Navajo Nation Council ultimately resolved that the proposed legislation could not pass due to “many major deficiencies” relating to the alleged “fiduciary responsibilities and lawful authorities of the Navajo Nation Council and its standing committees.” The Navajo Nation Council objected to losing control over matters related to resource management, home site leasing, approval of ordinances, and provision of insurance coverage. They observed that an increase in local government autonomy would result in a “depressed financial and fiscal situation leaving the Navajo Nation Government without sufficient financial and fiscal support.” While acknowledging the Diné interest in attaining self-sufficiency and local control over local matters, the conclusion was that any grant of local control would be a “premature delegation of authority to the Navajo Chapters.”
The 1995 proposed LGA was set aside while the Navajo Nation Council directed its standing committees to consider far more limited local powers, including (i) incremental delegation of authorities; (ii) no decrease in programs related to police protection, education, social services, and health services, as well as protection of natural resources; and (iii) the efficient and effective implementation of 638 Contracts. Grave concern arose over how local governance would be paid for, since nearly all tribal public funds came directly to Window Rock from 638 Contracts, franchise leases, and extraction payments. As the reservation was trust land, no property taxes could be levied. Even state schools operating on the reservation depended on alternative subsidies provided by power plants. There was also paternalistic concern about local ability to properly account for expenses, the assumption being that stringent checks and balances were needed at all levels of local accounting to prevent certain abuse. The standing committees recommended adoption of a “five-point management system” that a Chapter must master to become a “certified Chapter” prior to any implementation of local control. Additionally, the committees recommended continued oversight by the Resources and Development Committee of the Navajo Nation Council over practically all local matters pertaining to land use, including zoning.
These recommendations—effectively withholding local decision-
making authority from Chapters—were incorporated into the final 1998 LGA. Even more problematic for funding purposes was the final LGA’s classification of Chapters as “political subdivisions” of the Navajo Nation. In Anglo law, the “subdivision” designation distinguishes a state from bodies like cities and counties beneath it. The Federal Emergency Management Agency (FEMA) defines “political subdivision” as “a unit of government created by and under the authority of a higher level of government,” meaning an absence of independence. The Internal Revenue Service (IRS) defines “political subdivision” as a separate entity from the higher government that created it. Under this definition, the political subdivision is subject to ongoing controls, not simply through an approved plan of operations (like tribal enterprises), which means the absence of the benefit of obtaining direct funds as a component governmental unit.
The ISDEAA, which sets forth the terms of 638 Contracts, does not designate political subdivisions as eligible 638 Contract entities. The “subdivision” designation creates a barrier for Chapters to directly implement 638 Contract programs and access 638 Contract funds.
The entity designation also affects how allocations are generally received by Chapters, whether or not certified, as Chapters are not part of the three tribal governmental branches (Public Entities). Neither are they corporations whether or not wholly owned by the tribe (Private Entities), which means that Chapters must submit proposals to compete for project-based funds and also must provide assurances that proposed projects can be timely completed, a high bar for Chapters with little funds to hire proposal writers and project managers.
Local empowerment to determine local matters was part of the “solemn compact with the People [that] . . . the People [would] choose the final structure of government.” In 2023, Navajo Nation Council Delegate Otto Tso, representing To’Nanees’Dizi Chapter on the Resource and Development Committee, pressed for urgent alternative solutions. One such alternative may arise from a unified tribal vision.
IV. Integrated Resource Management Plans Based on a Tribal Vision
The federal government manages a variety of public lands including tribal reservations, national parks, and military reservations. All have a restricted inalienable character, meaning no ownership-based property taxes are generated. Managing public lands that generate no property tax income means constant administrative needs to keep down administrative costs or find alternative methods of generating income that would also uphold conservation mandates that run with all federally managed public lands, both tribal and non-tribal. Since the 1960s, federal land managers have relied on an integrated land use approach on non-tribal public lands, while encouraging reservation-
based tribes to adopt such an approach on reservations. However, only recently has tribal integrated management planning received federal financial and technical support. An added incentive, discussed below, has been the potential for regulatory waivers for tribes that adopt agriculture-related integrated resource management plans.
U.S. military bases worldwide are often located on “military reservations” managed in the United States and across the world by the U.S. Department of Defense (DOD). Wilderness surrounding the bases are normally managed by the U.S. Department of the Interior (DOI). The federal government owns, leases, or possesses 26.1 million acres of military reservation land worldwide. In 1960, Congress passed the 1960 Sikes Act, enabling the DOD and DOI to jointly conserve and generate income from domestic military lands on a “multiple use, sustainable yield” basis. Thus, surrounding forests could be responsibly culled, processed, and sold, or surrounding land leased for farming or ranching, to upkeep the military base and its community while safeguarding important plants and wildlife. An Integrated Natural Resource Management Plan (INRMP) served as the basis for interagency cooperation and general planning for base communities and wildlife conservation. Generally, the INRMP was a master governing document for the base, containing a high-level plan for sustainable base quality of life.
The 1994 Indian Self Governance Act extended the INRMP concept to public lands previously owned by Tribes and now managed by the federal government, lands that consist of over 250 million acres, including national parks and conservation areas, enabling their cooperative and collaborative co-management between federal agencies and tribes. Prior to this Act, in 1988, the concept extended, on a discretionary basis, tribal reservations through the BIA IRMP Initiative, with a tribal planning document called an Integrated Resource Management Plan (IRMP).
Any tribal IRMP needs to take into account permanent, historically traumatized growing communities with strong internal desires to settle in clusters to support their weakest members and strengthen themselves. Tribal reservations have teeming multigenerational communities whose needs change from generation to generation. Nearly all adults have, or are applying for, a homesite lease or permit, which is a costly and time-consuming process for vacant unconnected land. The tribe generates income from residents through sales tax. High levels of reservation poverty and unemployment make further fees and taxes a hardship, but a great depth of human capital exists, immense intelligence and innovation ability waiting to step up and take care of their own communities.
The BIA describes the IRMP as a “powerful expression of tribal sovereignty” and a strategic “statement of tribal resource and land management,” which provides a basis for reservation management that “ties the reservation’s natural environment together with the tribe’s social values.” These definitions reflect the IRMP’s purpose to provide documented, comprehensive policies used to approach resource management to serve defined tribal values, direction, and interests. The BIA initiative guidelines acknowledge that a tribe’s resources include not only natural resources but also the tribe’s culture and its people, and an IRMP would contain the tribal vision for desired future resource conditions on the reservation.
Implementing an IRMP with a tribal vision would be a meaningful step toward increased self-governance for the Navajo Nation. However, risks and considerations must be kept in mind when developing an IRMP. First, to ensure that the IRMP, as well as the values and vision provided in the plan, truly reflects the needs of the Diné, consultants with no cultural understanding should not be engaged to develop the IRMP. Second, funding sources must be acquired to fully support the work involved with the IRMP. Finally, IRMPs are a tool provided by the BIA, which ultimately is also responsible for approving IRMPs. An IRMP should not be drafted by the same body that approves it. To incorporate DFL in an IRMP, tribal communities themselves must be engaged in the planning.
Once a unifying tribal vision is developed, Community Land Use Plans (CLUPs), authorized by the LGA, may be used to express local visions. CLUPs establish individual Chapter visions and “project future community land needs . . . based upon the guiding principles and vision as articulated by the community.” Community planners should feel empowered to provide integrated plans that encompass all lands and infrastructure in their community. At this time, CLUPs exclude homesites and land-use permit areas, treating those areas like off-reservation private property to possibly be self-developed or receive private capital. The truth is, those areas are not private property. The permit system constrains formation of clustered legal entities with even the shadow of self-development and stewardship ability. Each permittee is restricted to an isolated invisible journal in generational poverty.
If IRMP implementation is intentional and prioritizes DFL, the IRMP can serve as a tool to bypass certain federal regulations in favor of resource management processes that better align with the Diné Life Way. Establishing a unified tribal vision would align an IRMP with a larger and future-focused intention for the entire Navajo Nation.
The importance of integrated planning to the future of reservation resources has long been a theme recognized throughout Indian Country. Although sparking considerable interest among tribes from the beginning, this BIA initiative lacked the financial or staff capabilities to broadly support the development of IRMPs. In 1993, an internal assessment found that BIA policy for the development of IRMPs “has not generally been successfully implemented” due partly to “a lack of clear examples of the purpose, content, and use of these plans, a relatively low priority for their development in the BIA, and the absence of adequate funding and resource management expertise.” Additionally, existing regulations are so restrictive that any tribal or local planning visions would be merely pipe dreams unless the regulations can be waived. An opportunity to waive regulations is included in the American Indian Agricultural Resource Management Act (AIARMA), which authorizes tribes to develop an Agricultural Resource Management Plan (ARMP).
To provide statutory direction for IRMPs, and possibly redress the limitations of the BIA initiative, Congress enacted the National Indian Forest Resources Management Act (NIFRMA) in 1990 and AIARMA in 1993, which contained the additional incentive of regulatory waivers. Consultation with tribes on implementation of AIARMA began in 1994. Tribes objected to an initial proposed rule for agricultural land leasing through AIARMA in 1996, and final rules were not implemented until 2001. The Indian Affairs Manual provided guidance. Funding remained an issue for nearly thirty years. In 2019, the BIA-Navajo Region finally received $2.6 million from BIA Central Office to implement a Navajo Nation ARMP reservation-wide, and The Navajo Nation Fish and Wildlife Department amended its 638 Contract to include the development of a Navajo Nation ARMP.
The BIA initiative was driven from within the DOI, while NIFRMA and AIARMA statutorily changed the approach to resource management from single use to a whole system-integrated, cooperative approach with the possibility of full-fledged community participation. AIARMA provides that land management activities must follow tribal resource management plans (including IRMPs and ARMPs). NIFRMA establishes additional guidance for IRMPs and an additional resource management plan type—a forest management plan.
Title 25, Chapter 1, Subchapter H of the Code of Federal Regulations (C.F.R.) details the BIA’s evolving processes in managing restricted Indian land, including tribal trust land and allotment land, which still leave culture-centered processes as unfunded options for tribes. 25 C.F.R. Part 162 generally regulates leases and permits for all tribes and was comprehensively revised in 2013 to provide greater tribal self-determination and to add provisions for wind and solar energy systems. Promulgated before these federal revisions, the Navajo Nation’s tribal leasing regulations may now contain unnecessary restrictions.
A. IRMP Empowerments and Limitations
Three main federal statutes implicated by IRMPs are the National Environmental Policy Act (NEPA), the AIARMA, and the NIFRMA. AIARMA allows waivers to federal regulatory requirements without any specific limitation for a DOI-approved ARMP, other than that ARMP terms and implementation may not violate federal law or conflict with the BIA’s trust responsibilities. The BIA defines its trust responsibility as “a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages.” AIARMA broadly defines the ARMP as simply “the plan” that provides “identified holistic management objectives that include quality of life . . . and may include any previously adopted tribal codes and plans related to [listed] resources.” The definition is broad and should cover all resources used for production, including cultural and social resources. Incorporation of other tribal plans emphasizes the importance of IRMPs and CLUPs.
No prescribed method exists for creating an IRMP, although guidelines are suggested by the Native Land Information System and the BIA. Tribes should feel free to develop their own IRMPs and ensure that the plan does not sit unimplemented, but rather acts as a living document that is monitored and updated as needed. IRMPs are meant to be the controlling document on which all other plans (including ARMPs), projects, and decisions are based.
It is possible for a community to adopt an ARMP or similar planning document prior to an IRMP; however, it is preferable to adopt an IRMP first so that more specific planning documents can align with the IRMP, rather than adjusting specific planning documents to a subsequent IRMP. No matter the order, once a community has implemented an IRMP, the ARMP or other planning documents should be created or updated to align with the vision and goals in the IRMP.
Regulatory waivers under AIARMA can be powerful local governance tools. Specifically, AIARMA provides that the DOI may waive any regulation or DOI policy that “conflicts with the objectives of the [ARMP] or with a tribal law . . . unless such waiver would constitute a violation of a Federal statute or judicial decision or would conflict with [the DOI’s] general trust responsibility under Federal law.” This potential waiver is essential to keep in mind during IRMP development so that the IRMP may be set up appropriately to allow for management of agricultural land that aligns with Diné values. AIARMA also allows innovative tribal solutions for determining who can obtain agricultural leases and permits by allowing tribes to establish tribal policies that manage highly fractionated allotment land. The only other limitations would be those imposed by the Navajo Nation under its own laws, which the tribe can independently waive, revise, or remove, something that the BIA recommends so that a tribal vision is not unduly restricted by the tribe itself.
IRMPs provide a great deal of flexibility for communities to implement a variety of provisions that are most beneficial for them. Elements found in five tribal IRMPs surveyed for this article include the following: (i) a tribal resolution initiating the IRMP planning process; (ii) a tribal vision statement; (iii) the history of the reservation; (iv) the need for the IRMP; (v) identification and protection of cultural and historical resources; (vi) utilization of agriculture resources and infrastructure to address conservation; and (vii) prioritizing sustainable energy resources.
While IRMPs cover all tribal reservation lands, ARMPs apply to “Indian agricultural lands,” which include most if not all restricted land other than forests and specifically include “farmland and rangeland . . . that is used for the production of agricultural products, and Indian lands occupied by industries that support the agricultural community, regardless of whether a formal inspection and land classification has been conducted.”
AIARMA specifies what an ARMP must contain and states that such plans “shall govern the management and administration of Indian agricultural resources and Indian agricultural lands by the [BIA] and the Indian tribal government.” NIFRMA provides that any forest management plan must be “consistent with an [IRMP].” As discussed in the Introduction, a federal governmental effort is underway to incorporate ITEK into federal decision-making. This plan is powerful, as it provides authority to close the gap between legacy federal methods of resource management on the reservation and the Diné Life Way. Note that the federal government has long since reformed its management approaches toward integration off reservation.
