Native News Pick of the Month: Land Buy-Back, Real Estate Recovery, and the Burning of Blackacre

While reading an article recently in The Guardian about Native communities recovering reservation lands through real estate purchases, it occurred to me that there is a significant gap in understanding the issue at hand, where it originated and how we can prevent it in the future.

The article reported on several different tribal communities from around the country buying back land that was previously taken from them and given to non-Native landowners.  At the time, there was not a remedy for these illegal reallocations, and now after generations of right-sizing and social equity efforts, some tribes are in a financial position to recover their land by purchasing it back.

The rigorous process of acquiring land from private ownership – which then must go into a federal tribal trust – is complicated, time consuming and highlights an example of the political relationship Native Americans face with the federal government. This is, in my opinion, another example of how laws such as the Indian Child Welfare Act (ICWA) are not based on race but rather deeply rooted in a government-to-government sovereignty relationship that was established by treaties. My tribe has been working to recover Shabbona Lake State Park in Illinois for more than 10 years. As part of the Potawatomi tribe’s migration to Kansas in the 1800’s, a treaty was made with then Chief Shabbona to give the land to the Potawatomi. As with every other treaty, it was not honored, and the state took the land. 

Fast forward to today and our tribe has paid more than $20 million in attorney fees, impact statements and other bureaucratic processes to recover the land. As it stands, the application is still pending with the Bureau of Indian Affairs (BIA), and the tribe owns just one house on the land to establish a presence. The hope is that these applications will get processed more quickly, and favorably, for the tribes under the leadership of Secretary Deb Haaland.

Similarly, the Land Buy-Back Program for Tribal Nations through the U.S. Department of Interior aims to return land ownership to a recognizable status and compensate owners for their piece of land that would otherwise be unusable. The program was established in response to the Cobell settlement of 2009 that provided funding to consolidate fractional land interests across Indian Country.

Neither of these avenues are consistent with the #LandBack movement led by Indigenous people who are advocating for the return of lands wrongfully taken from tribes. And while there is merit to their position, having a landowner unilaterally return land ownership without compensation seems altruistic. Not to mention, communities, municipalities and states cannot afford to lose their tax base associated with lands that were wrongfully taken from tribes, and tribes refuse to accept a payment from the government for that wrongful taking. The bottom line is, tribes want the land back and they would be willing to let the government’s money sit in a bank account rather than accept payment and lose the land forever.

Once tribes recover the land, what happens next? Stacy Leeds, a former Supreme Court Justice for the Cherokee Nation and my college law professor and mentor, wrote about this in a 2001 article for the Kansas Journal of Law and Public Policy called “The Burning of Blackacre.” In it, she outlined a hypothetical Native-centric model to property law that would curb the fractionated interest. Of course, until that happens, alternate methods to acquiring land will require a multi-pronged approach, including activism, federal participation and, inevitably, real estate acquisitions.

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