Moving toward exclusive tribal autonomy over lands and natural resources

Natural Resources Journal

Volumn 46, Issue 2, 2006, Pages 439-461

  Leeds, Stacy L ^a,b  

^a Department of Law ^*

^b UNIVERSITY OF KANSAS   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

AUTONOMY; LAND MANAGEMENT; LAND TENURE; NATURAL RESOURCE;

EID: 33846698254     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (154)

1. See generally Judith V. Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1 (1995) (discussing the allotment policy and its aftermath);
2. Kenneth H. Bobroff, Retelling Allotment: Indian Property Rights and the Myth of Common Ownership, 54 Vand. L. Rev. 1559 (2001) (dispelling some common misconceptions about the federal rationales for the allotment process).
3. Getting out of the "Indian business" meant more than doing away with contiguous tribal land bases and federal supervision over Indian lands. In many instances, the allotment process was coupled with the termination of tribal governments and an end to the federal-tribal relationship.
4. "The forced allotments of communally owned tribal lands ... was conducted almost completely without tribal consent and against the active opposition of most tribes." Robert J. Miller, The Doctrine of Discovery in American Indian Law, 42 Idaho L. Rev. 1, 115 (2005).
5. The federal role as trustee was intended to be temporary, as set forth in the General Allotment Act of 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. §§ 331-381 (1887).
6. A 25-year trust period for allotted lands was established by 25 U.S.C. § 348.
7. AfAfter the trust period expired, the allottees received a fee patent to the land. Id.
8. U.S.C. § 348 (2000).
9. Some allotment agreements expressly provided for the termination of tribal governments once allotment was finalized. The 1902 agreement to allot Cherokee lands contemplated the final termination of the Cherokee Nation. See Act of July 1, 1902, ch. 1375, 32 Stat. 716. The termination never came to fruition because the deadline set for termination was extended by federal legislation.
10. See Five Tribes Act of 1906, ch. 1876, 34 Stat. 137, 148 (extending tribal existence in perpetuity by stating "[t]hat the tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes or nations [were to be] continued in full force and effect for all purposes authorized by law, until otherwise provided by law"). The Five Tribes have recently celebrated the 100-year anniversary of this reaffirmation of their existence.
11. Five Civilized Tribes Commemorate Act of 1906, Cherokee News Path, May 5, 2006, http://www.thepeoplespaths.net/Cherokee/News2006/May2006/ CNO-FiveCTribes060505CommemorateActOf1906.html.
12. See also Kevin K. Washburn, Federal Criminal Law and Triba Self-Determination, 84 N.C. L. Rev. 779, 832 (2006) (noting the failure of federal policy to terminate tribes or assimilate Indians).
13. Cohen's Handbook of Federal Indian Law, § 1.03[6][b], at 66 (Nell Jessup Newton et al. eds., 2005).
14. There are approximately 11 million acres of land held in trust for individual Indians. H.R. Rep. No. 108-656 (2004), reprinted in 2005 USCAAN 1952, 1953.
15. The federal-tribal trust relationship, and by extension federal power over tribal lands, has its origin in the early cases before the U.S. Supreme Court. See Johnson v. M'Intosh, 21 U.S. 543 (1823) (tribal lands were deemed inalienable to all entities except the federal government);
16. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (the notion of federal protection for Indian wards was solidified);
17. Lone Wolf v. Hitchcock, 187 U.S. 553, 564-67 (1903) (federal powers over Indian lands were upheld and federal decisions affecting Indian lands were upheld over the objection of the tribes).
18. See generally Robert McCarthy, The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. Pub. L. 1 (2004) (discussing the role of the BIA).
19. 25 U.S.C. § 464 (2000).
20. See H.R. Rep. No. 108-656 (2004).
21. Asking the federal government to simply remove the trust status without other amendments to federal law could be dangerous for tribes. Once land is held in fee title, even with the tribe as the owner, the land becomes subject to state taxation and eminent domain powers. See Burke Act of 1906, Pub. L. No. 149, ch. 2348, 34 Stat. 182 (codified at 25 U.S.C. § 349 (2000)).
22. See also County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 263 (1992) (finding that state taxation of fee lands owned by Indians is permissible once Congress makes lands alienable);
23. Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 106 (1998).
24. See William Bradford, Another Such Victory and We Are Done: A Call to an American Indian Declaration of Independence, 40 Tulsa L. Rev. 71, 80 (2004) (noting that the trust doctrine has "roots in cultural racism and xenophobia" that leads to increased dependent status).
25. In fact, early reform efforts led to the end of allotments after the critiques of the Meriam Report of 1928. See Brookings Inst., Inst. for Gov't Research, Problem of Indian Administration (Lewis Meriam. tech. dir., 1928).
26. More modern calls for reform are addressed in Thomas V. Panoff, Legislative Reform of the Indian Trust System, 41 Harv. J. on Legis. 517 (2004),
27. and Christopher Barrett Bowman, Comment, Indian Trust Fund: Resolution and Proposed Reformation to the Mismanagement Problems Associated with the Individual Indian Money Accounts in Light of Cobell v. Norton, 53 Cath. U. L. Rev. 543 (2004).
28. See generally Cohen, supra note 7, § 5.07[3][b], at 473-83 (discussing emerging norms of self-determination);
29. Hurst Hannum, The Right of Self-Determination for the Twenty-First Century, 55 Wash. & Lee L. Rev. 773 (1998) (linking self-determination and human rights).
30. See U.N. Comm'n on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities: Draft United Nations Declaration on the Rights of Indigenous Peoples, August 26, 1994, 34 I.L.M. 541 (1995).
31. See infra Part II.
32. See infra Part III.
33. See infra Part IV.
34. See infra Part V.
35. Cohen, supra note 7, § 16.03[2][a], at 1040-41,
36. David Getches et al., Federal Indian Law 166-71 (4th ed. 1998).
37. Treaty with the Shawnee of May 10, 1854, 10 Stat. 1053, 1054-1056 (providing for the allotment of certain lands in Kansas).
38. General Allotment Act of 1887, ch. 119, 24 Stat. 388. The General Allotment Act was not self-executing and it did not apply to all tribes. For the most part, allotment varied from reservation to reservation, as detailed in tribally specific allotment agreements.
39. Compare Act of July 1, 1902, ch. 1375, 32 Stat. 716 (allotment of lands of the Cherokee Nation),
40. with Act of June 28, 1898, ch. 517, § 11, 30 Stat. 495 (known as the Atoka Agreement).
41. The Kiowa Tribe was subject to the General Allotment Act, yet federal negotiators sought tribal consent under the Jerome Agreement of 1892. When the tribe failed to consent, the lands were allotted against the tribe's will. See Act of June 6, 1900, ch. 813, 31 Stat. 672, 676-77.
42. See also Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (upholding congressional power to allot tribal lands).
43. See Allison M. Dussias, Squaw Drudges, Farm Wives and the Dann Sisters' Last Stand: American Indian Women's Resistance to Domestication and the Denial of Their Property Rights, 77 N.C. L. Rev. 637, 656-71 (1999).
44. John W. Ragsdale, Jr., Indian Reservations and the Preservation of Tribal Culture: Beyond Wardship to Stewardship, 59 UMKC L. Rev. 503, 520 (1991).
45. See Hodel v. Irving, 481 U.S. 704, 706 (1987);
46. Babbit v. Youpee, 519 U.S. 234, 237-39 (1997).
47. See also Judith V. Royster & Michael C. Blumm, Native American Natural Resources Law, Cases and Materials 170-72 (2002).
48. Act of August 15, 1894, Pub. L. No. 53-290, ch. 290, art. VIII, 28 Stat. 286, 316.
49. See also Stacy L. Leeds, By Eminent Domain or Some Other Name: A Tribal Perspective on Taking Land, 41 Tulsa L. Rev. 51, 66-67 (2005) (characterizing surplus lands policy as a governmental taking).
50. See generally United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) (discussing compensation when a taking has occurred).
51. See Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
52. See also Joseph William Singer, Lone Wolf, or How to Take Property by Calling It a "Mere Change in the Form of Investment," 38 Tulsa L. Rev. 37 (2002).
53. Singer, supra note 30, at 38-39.
54. See United States v. Creek Nation, 295 U.S. 103, 109 (1935);
55. Lone Wolf, 187 U.S. at 568.
56. U.S.C. § 349 (2000) (detailing the expiration of the trust period for allotments).
57. See 25 U.S.C. § 348.
58. U.S.C. § 349.
59. The Secretary is given the discretion to issue a fee patent "whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs...." Id.
60. U.S.C. § 349 (detailing the expiration of the trust period for allotments).
61. Cohen, supra note 7, § 16.03[2][c], at 1042.
62. See also Bobroff, supra note 1, at 1559 (noting that the allotment policy was "an unquestionable disaster").
63. Indian Reorganization Act, Pub. L. No. 109-229, ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-479 (2000)).
64. 25 U.S.C. § 462.
65. See McCarthy, supra note 10, at 14.
66. The proceeds are collected by the Department of the Interior and held in Individual Indian Money (IIM) accounts and deposited in the U.S. treasury. See Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999).
67. See also David M. English, A Uniform Probate Code for Indian Country at Last, 20 Prob. & Prop. 20 (2006) (discussing generally IIM accounts).
68. McCarthy, supra note 10, at 19-25.
69. 25 U.S.C. § 465 (2000).
70. Id.
71. Tribes have historically lost lands through several other federal policies, in addition to allotment. See Leeds, supra note 28, at 58-67 (examining the "discovery doctrine," Indian removal, allotment, and surplus lands).
72. Jessica A. Shoemaker, Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem, 2003 Wis. L. Rev. 729, 732-33.
73. Cobell v. Norton, 240 F.3d 1081, 1087 (D.C. Cir. 2001).
74. See Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).
75. Under a humane and self unposed policy which has found expression in many acts of Congress and numerous decisions of this Court, [the United States] has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards. Id.
76. Lone Wolf v. Hitchcock, 187 U.S. 553, 565-66 (1903) (noting that the "fee is in the United States" and that tribal land use is subject to federal guardianship).
77. Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 115 (1998) (states can tax Indian lands unless the trust status is retained).
78. See also Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) (discussing the presumption against tribal jurisdiction over non-members on non-Indian fee lands).
79. Reid Peyton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213 (1975).
80. Katheleen R. Guzman, Give or Take an Acre: Property Norms and the Indian Land Consolidation Act, 85 Iowa L. Rev. 595 (2000);
81. Shoemaker, supra note 46, at 787.
82. Montana v. United States, 450 U.S. 564, 566-67 (1981) (suggesting that tribes retain jurisdiction on those lands that they maintain a right to exclude).
83. Mustang Prod. Co. v. Harrison, 94 F.3d 1382 (10th Cir. 1996).
84. See Montana, 450 U.S. at 547 (implying that when land is held in fee by a non-Indian there is a presumption against tribal jurisdiction).
85. Tribes have been unsuccessful in their attempts to oust state regulatory powers even where the tribe owns the land. See City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005).
86. See County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 263-64 (1992) (permitting state taxation of Indian allotment).
87. Montana, 450 U.S. at 556-58.
88. See City of Sherrill, 544 U.S. 197.
89. Buzzard v. Okla. Tax Comm'n, 992 F.2d 1073 (10th Cir. 1993) (finding that tribes lack the power to unilaterally create Indian country by the purchase of land).
90. Acquisition of trust property by the Secretary of the Interior is governed by 25 C.F.R. § 151 (2005).
91. Title is to be held by the federal government. 25 C.F.R. § 151.2.
92. Stacy L. Leeds, Borrowing from Blackacre: Expanding Tribal Land Bases Through the Creation of Future Interests and Joint Tenancies, 80 N.D. L. Rev. 827, 829-32 (2004).
93. See Francis Paul Prucha, The Great Father: The United States Government and the American Indian 624 (1984).
94. Three hundred thousand people (the Indians) have no right to hold a continent and keep at bay a race of able people to it and provide the happy homes of civilization....We do owe the Indian sacred rights and obligations, but one of those duties is not the right to let them hold forever the land they did not occupy, and which they were not making fruitful for themselves and others. Id. (quoting Reverend Lyman Abbott in support of allotting lands).
95. Francis Paul Prucha, Americanizing the American Indians: Writings of the "Friends of the Indians" 1800-1900, at 83-86 (1973).
96. See generally Royster, supra note 1, at 7-12 (discussing the allotments and assimilation).
97. See Act to ratify and confirm an agreement with the Muscogee or Creek tribe of Indians, and for other purposes, ch. 676, 31 Stat. 861, 872 (1901).
98. Some allotment acts specifically provided for a termination date for the tribal government once the lands were allotted. Id.
99. See Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1498 ("for sovereign native nations to function within a larger, increasingly powerful majority, the promised separatism had to be policed by the federal government").
100. See Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001).
101. See generally Bradford, supra note 14
102. (arguing that United States v. Lara, 541 U.S. 193 (2004), is made of the same base metals - the discovery doctrine, plenary power, and stare decisis - from which the entire corpus of federal Indian law has been conjured).
103. See Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902) (The language contains no reservation of rights in the United States.).
104. The land was conveyed from the United States, which "gives and grants" the lands to the Cherokee Nation "to have and to hold the same, together with all the rights, privileges, and appurtenances thereto belonging to the said Cherokee Nation forever." Id. at 116.
105. See generally Restatement (First) of Property § 15 (1936).
106. "An estate in fee simple absolute is an estate in fee simple which is not subject to any special limitation or a condition subsequent or an executory limitation." Id. This well-established concept of fee simple absolute gives the most control over use and ownership of the property.
107. See Stacy L. Leeds, Burning of Blackacre: A Step Toward Reclaiming Tribal Property Law, 10 Kan. J.L. & Pub. Pol'y 491, 494 (2001).
108. See id. at 493.
109. The Cherokee Nation established a police force to suppress the stealing of property in Cherokee Territory and protect the rights of Cherokee women and children who have inherited property. Id.
110. See Cherokee Constitution of 1839, art. I (1839). The lands of the Cherokee nation shall remain common property; but the improvements made thereon, and in the possession of the citizens....respectively who made, or rightfully be in possession of them: Provided, That the citizens of the Nation possessing exclusive and indefeasible right to their improvements, as expressed in this article, shall possess no right or power to dispose of their improvements, in any manner whatsoever, to the United States, individual States, or to individual citizens thereof.
111. Id. § 2, reprinted in Constitution and Laws of the Cherokee Nation: Passed at Tal-Le-Quah, Cherokee Nation, 1839-51, at 5-6 (1852).
112. Id.
113. Id.
114. See Cherokee Nation v. Hitchcock, 187 U.S. 294, 302 (1902) ("As we have said, the title to these lands is held by the tribe in trust for the people.").
115. Leeds, supra note 72, at 495.
116. See Leeds, supra note 62, at 830-34. 90 Stacy L. Leeds, Borrowing from Blackacre: Expanding Tribal Land Bases Through the Creation of Future Interests and Joint Tenancies, 80 N.D. L. Rev. 827, 829-32 (2004).
117. See generally Bobroff, supra note 1 (highlighting the private property regimes of several Indian nations).
118. Leeds, supra note 72, at 495.
119. See id.
120. The Cherokee legislation may be viewed as a self-imposed Trade and Intercourse Act of 1790 (i.e., Non-intercourse Acts), which prevent the alienation of tribal lands. Cf. 25 U.S.C. §§ 177-202 (2000).
121. See Act of July 1, 1902, 32 Stat. 716 (1902).
122. Id.
123. Choate v. Trapp, 224 U.S. 665, 667-68 (1912).
124. Five Tribes Act of 1906, ch. 1876, 34 Stat. 137 (also known as the Curtis Act).
125. See Leeds, supra note 28, at 65-66 n.119.
126. See Five Tribes Act of 1906, ch. 1876, 34 Stat. 137 (Ihe Five Tribes in eastern Oklahoma are Cherokee, Muscogee (Creek), Seminole, Choctaw and Chickasaw.).
127. Letter from Chad Smith, Principal Chief of the Cherokee Nation of Oklahoma, to James M. Inhofe, Senator (Sept. 30, 2002) (in support of HR 2880, the Five Nations Indian Land Reform Act), available at http://www.cherokee.org/CurentNewsRelease.asp?ID=656 (last visited Aug. 24, 2006). The measure has never passed.
128. Act of August 4, 1947, ch. 458, 61 Stat. 731, 733.
129. Id.
130. See Letter from U.S. Department of the Interior to Miss Nina Leeds (Jan. 17, 1955) (on file with author) (A member of my (author's) family received notification from the Department of the Interior informing them that, because the federal government calculated their blood quantum to be one-fourth, the restrictions on their land were being lifted.).
131. In July 1932, this office purchased 30 acres from your mother, Edith Yates now Leeds, for you, Louis, Robert, Arline, Jimmie, Johnnie, George, Ellen, Harrison and Jesse Leeds, said deed taken on a restricted form. Since you and your brothers and sisters were only 1/4 Cherokees, this was in error...and the land was and still is unrestricted. Id.
132. Attached to the letter was an application for removal of restrictions pursuant to the Act of May 10, 1928, 45 Stat. 495-733.
133. The application requires the blood quantum of the property owners for removal of restrictions. The letter also contains a field report listing the degree of Indian blood. See id.
134. Although originally exempted from the Indian Reorganization Act, the Cherokee Nation can now take advantage of the Act for the purpose of petitioning the Secretary to accept lands into trust.
135. See Act of July 1, 1902, ch. 1375, § 24, 32 Stat. 716, 719 (listing the lands that were excluded from the Cherokee allotment).
136. Id.
137. See also Cherokee Nation Judicial Branch, History, Pictures of Judicial Buildings, Information on the Cherokee National Courthouse, www.cherokeecourts.org (last visited Oct. 26, 2006).
138. See 25 U.S.C. § 465 (2000).
139. The Secretary of the Interior may acquire "through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands...for the purpose of providing land for Indians." Id.
140. However, title to any of these lands "shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the lands is acquired, and such lands or rights shall be exempt from State and local taxation." Id.
141. The ability to petition the acquisition of these lands stems from federal regulations. See also 25 CFR § 151.9 (2006) (tribes desiring to acquire land in trust status must file a written request for approval of the Secretary of the Interior).
142. See 25 U.S.C. §§ 177-202 (2000).
143. 25 U.S.C. § 177. "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."
144. Id.
145. See also Johnson v. M'Intosh, 21 U.S. 543 (1823).
146. See generally Leeds, supra note 72 (detailed discussion of better management through tribal ownership).
147. See Bobroff, supra note 1, at 1571-600.
148. Leeds, supra note 72, at 495.
149. Id.
150. See id. at 497 (discussing the proposed "use it or lose it" approach).
151. See id.
152. City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005).
153. Id. at 199.
154. See id. at 221.