Federal Indian Land Trust System: Overview

Introduction

The relationship between American Indians and the US government can be described as a “nation-to-nation” relationship in which each recognized American Indian tribe is a semiautonomous nation of individuals within the United States. All the land inhabited or used by American Indians collectively constitutes what is often called “Indian country.” Most of the land in Indian country is held in federal trust, a legal system in which the US government retains ownership of certain parcels of land that are reserved for use and for the benefit of American Indian individuals or tribal nations. There are two kinds of trust land, tribal trust land and allotted trust land; in addition, there is land in Indian country called "fee land," which is owned outright by an individual or organization. The Indian land trust system is controversial, as it protects the sovereignty of American Indian peoples to manage land set aside in trust for the tribal nation but also prohibits American Indian property ownership outright and thus, in the eyes of some critics, prevents American Indians from maximizing the land's potential. On the other hand, the history of privatizing Indian land is a story of widespread dispossession and exploitation. Thus, in the twenty-first century, the issue of Indian land tenure is complex and controversial.

Understanding the Discussion

Allotted trust lands: Lands held in trust by the US government for the benefit of individual Indians and their families, or their heirs.

Checkerboarding: A mixed land ownership situation on some Indian reservations, where plots of tribal trust land, allotted trust land, and fee land are mixed together, resembling a checkerboard pattern and complicating land use and jurisdiction issues.

Fee land: Also known as fee simple, land that is owned outright by an individual or organization; Indian fee land (which may be owned by an individual or a tribal nation) may nonetheless be subject to federal restrictions regarding its use and disposition.

Fractionated ownership: The results of a provision in US law stating that the interests in allotted Indian trust land are to be divided equally among the beneficiary's heirs but without dividing the land itself. This means the number of beneficiaries of a piece of land can multiply into the thousands within a few generations, drastically expanding administrative costs and reducing individual income from the land.

Land tenure: Legal guidelines determining ownership or control of a given portion of land.

Land trust: A legal arrangement whereby one party (the trustee) owns a piece of land for the benefit of another (the beneficiary).

Tribal trust lands: Lands held in trust by the US government for the collective use of an Indian tribal nation.

History

Cohabitation on the North American continent between Indigenous peoples and European colonizers proved extremely difficult for multiple reasons, not least being radically different conceptions of land and people's relationship to it. The European concept of private ownership of “real property” or “real estate”—meaning land—was alien to the native peoples of what became the United States. American Indians, as they were collectively called, existed in hundreds of different tribal nations who did not all have the same beliefs about everything, but as a rule they viewed the land as a resource to which all people had equal access, and not something that could be bought and sold. Many were nomadic, traveling from place to place rather than settling in one particular area.

All of this changed with the arrival of Europeans aiming to “settle” the land and develop it for crops, livestock, and natural resources. The American Indians were pushed back again and again, driven off their traditional lands by ever-increasing numbers of European settlers with superior military technology. First the British colonial and then the United States government forced tribe after tribe to sign treaties giving up land rights that they did not recognize in the first place. Even then, the status of American Indians within the bounds of the young United States was complicated. In the face of increasing pressure from the southern states, as well as President Andrew Jackson, in 1830 Congress passed the Indian Removal Act, which called for thousands of American Indians to be forcibly removed from their ancestral territories in the Southeast and relocated to special areas set aside for their use in federal territory west of the Mississippi River, where there were as yet few white people. These removals were accomplished with great loss of life; yet, within a few short decades, white Americans began to push inexorably farther west, and conflict continued. Laws like the Indian Appropriations Act of 1851 sought to keep whites and Indians apart by creating reservations—enclosed areas to which American Indians were confined (usually following military defeat), on land owned by the federal government but reserved for the exclusive use of American Indians. This marked the beginning of the federal land trust system.

In the 1870s and '80s, as white settlement of the West continued, there was a political movement to assimilate American Indians into American culture, as well as gain access to some of their vast reservation lands. This resulted in the 1887 Dawes Act, also known as the General Allotment Act, which sought to get Indians to settle and adopt European American farming practices by dividing up tribal trust lands—which were held in common—into individual plots of up to 160 acres for individual Indians and their families. After all the Indians on a reservation had been assigned their allotments, any “surplus” land could be sold off to settlers. The individual allotments were held in trust by the federal government, like the collective tribal trusts, though in some cases, after a period of time, the Indians could be granted outright ownership (fee simple) of the allotted land, to sell or lease as they pleased (sometimes with conditions).

Ultimately, the allotment system did not result in the integration of American Indians into the dominant American culture or society and, instead, resulted in their further exploitation and marginalization. While 138 million acres were reserved for American Indian tribal nations in 1887, by the time the allotment system ended in 1934, only 48 million acres remained in trust. In many cases, the land that had been identified as “surplus” and thus available for purchase on the open market was the best land on the reservation, while the land allotted to Indians was poorly suited to farming. In addition, European-style farming was so alien to some Indians that they refused to adopt it, and they sold their land or had it confiscated for nonpayment of taxes, to which they were subject as soon as they became fee-simple owners. When these lots of land were sold, often to non-Indians, it broke up the land area of Indian reservations, sometimes in a checkerboard pattern, making some of the land subject to tribal law and some of it subject to surrounding state or local law, complicating land use and jurisdiction issues.

The allotment system was such a disaster that it was ended in 1934 by the Wheeler-Howard Act, better known as the Indian Reorganization Act, which ensured that all remaining reservation land remained in federal trust for the benefit of American Indian tribal nations. The Wheeler-Howard Act stopped much of the loss of Indian land, and efforts began to return some of the 90 million acres of lost land to trust status; however, according to the National Congress of American Indians, only about 8 percent of that land was recovered between 1934 and the early 2010s.

Federal Indian Land Trust System Today

The controversial allotment period is still the subject of debate and legal challenges in the twenty-first century. For instance, the 2009 Supreme Court case of Carcieri v. Salazar dealt with the issue of whether the federal government could legitimately take into trust land belonging to the Narragansett Tribe of Rhode Island, as they requested, even though the Narragansett Tribe was not federally recognized until 1983. The Supreme Court ruled that because that tribal nation was not recognized in 1934 when the Indian Reorganization Act allowed for placing tribal territory in federal trust, the Narragansett land could not become federal trust land. This had wide implications for other tribal nations not recognized until after 1934, as having tribal land in federal trust exempts it from state and local laws, giving tribal nations greater freedom to pursue economic development and other interests.

An even more important case involving American Indian land tenure—this one a win for American Indians—was the 2009 federal case of Cobell v. Salazar, which resulted from a 1996 class-action lawsuit brought against the Departments of the Interior and of the Treasury by multiple American Indian tribal nations. The plaintiffs alleged that the federal government had mismanaged revenue from lands in federal trust dating back to the nineteenth century, resulting in huge losses to American Indian communities. In 2009, the federal government settled the case for a staggering $3.4 billion, $1.4 billion of which was awarded to the plaintiffs and $2 billion of which was set aside to purchase fractionated Indian land interests and return them to communal trust. The 2009 settlement was among the first victories won by American Indians against the federal trust system and so is considered a landmark in federal Indian land policy.

One of the most familiar Indian land issues of the 2010s is the Dakota Access Pipeline controversy, involving a 1,200-mile underground oil pipeline crossing through four states, from North Dakota to a terminal in Illinois. The Standing Rock Sioux objected to the project because the pipeline passes within a half mile of their reservation, crossing both sacred burial sites and natural water sources providing water to the Sioux. In addition, the US government failed to consult with the Standing Rock Sioux before approving the pipeline, which is a federal requirement despite the pipeline not crossing the Standing Rock Sioux Reservation itself. The controversy brought renewed attention to land ownership disputes in the region, with the Standing Rock Sioux arguing that the federal government had illegally taken possession of land rightfully occupied by the Standing Rock Sioux since the 1868 Treaty of Fort Laramie and had failed to abide by the terms of the treaty. In the face of Indian and environmentalist protests, the project was halted for a time under the administration of President Barack Obama, but it was resumed in 2017 under President Donald Trump. The pipeline was completed and began operating in June 2017. The Standing Rock Sioux continued their legal opposition, and in March 2020, a federal judge ruled that the Army Corps of Engineers must conduct another, more stringent environmental review to properly assess the impacts on the Sioux; an injunction, or temporary court-ordered stoppage, was overturned on appeal in August 2020. That autumn, twenty-four members of Congress, twenty-seven tribes, and nineteen states supported the Sioux's renewed call for an injunction.

Similar conflicts surrounded the proposed Keystone XL Pipeline. First proposed in 2008 and defeated in court in 2018, the pipeline expansion received approval from Trump via executive order. The Fort Belknap Indian Community and Rosebud Sioux Tribe sued, arguing that the government was violating several treaties and ignoring the consultation requirement for construction on trust lands. Trump issued a new permit in March 2019, and construction began in early 2020, despite ongoing litigation.

In March 2020 the Department of the Interior, under Trump, drafted new guidance on how tribal nations could place fee land in trust that treated tribal nations not recognized until after 1934 differently than those with status in 1934; a federal judge asserted the change would complicate the process for tribes like the Mashpee Wampanoags. Soon afterward, the Trump administration used the Carcieri decision to remove Mashpee reservation from trust, marking the first such disestablishment in decades.

Democratic presidential candidate Senator Elizabeth Warren, by contrast, proposed further funding federal programs that enable tribal nations to buy back lands that were allotted or that became highly fractionated and to place such lands into the trust system. Warren further promised a legislative solution to the Carcieri ruling and a less bureaucratic process of transferring land into trust. After she dropped out and endorsed her rival Joe Biden, who became Trump's main challenger, Biden also similarly vowed to increase the amount of land held in trust and to fix Carcieri. Under Biden, the Bureau of Indian Affairs issued a rule change, effective January 2024, that expressed federal support for fee-to-trust acquisitions, set a 120-day deadline for decision-making on completed applications, defined criteria and presumptions for four specific types of acquisitions, and set standards of evidence necessary to establish eligibility under the Carcieri decision.

Supporters of the federal trust system argue that the preservation and maintenance of lands for the exclusive or primary use of American Indians is essential for preserving American Indian cultures, rooted as they are in the land and the natural environment or to areas where American Indians can gather to participate in communal practices. However, critics argue that the federal trust system contributes to high poverty rates among American Indians because Indians do not gain equity in land that they occupy or inherit through the allotment system. In addition, critics contend that governmental mismanagement and a multilayered bureaucracy limits the benefits realized by American Indians under the existing system; some have therefore argued that the federal land system should be abandoned or reformed.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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