Environmental, Natural Resources, & Energy Law Blog

LandBack Movements in the West: In the Best Interest of the Environment

Elaina Rae Erola*

LLM Blog

Fall 2023

I. Introduction

LandBack is the latest and greatest hashtag cropping up across sweatshirts, bumper stickers and social media these days. A 2018 movement to return land to indigenous peoples accredited to Aaron Tailfeathers, a member of the Blackfeet Confederacy^[1], it’s more of a conceptual development and is currently clouded in more questions than answers. LandBack has the power to mobilize not only different Indigenous communities but also non-Indigenous allies in the fight against environmental injustice. The movement has also been catapulted into broader mainstream consciousness in recent years. #LandBack began trending on social media during the height of the No Dakota Access Pipeline (#NODAPL) protests on the Standing Rock Sioux Reservation between 2016 and 2017, which helped highlight the struggles Indigenous communities were facing.^[2]

In the Western United States, the federal government owns 47 percent of the land.^[3] The LandBack movement is rooted in sovereignty, a long-fought battle for tribes to govern themselves and for the federal government to recognize the indigenous right to self-determination. Sovereignty is a political status held by Indian Tribes in the United States, also referred to as inherent sovereignty which is because tribes were already governing themselves before settlers came to America, and the United States recognizes those retained self-governing powers^[4]. Even the United States Constitution recognizes that the tribal nations are sovereign governments, just like Canada or a state.

But there are many problems faced by tribes in this effort. In the U.S., land falls into various legal categories, with different land use and zoning. These restrictions can pose roadblocks to indigenous land ownership. For example, some traditional practices, such as burning a ceremonial fire within a small, enclosed space, are illegal on standard residential properties.^[5] In California, in addition to ceremonial fires, controlled burns are essential to land management. An entirely separate problem arises when tribes without federally recognized status attempt to hold land, because these tribes that are not federally recognized can’t hold land in trust.

This blog seeks to illustrate successful LandBack movements and advocate for better legislative pathways to ease the pathway to LandBack movements. Additionally, I’d like to show Tribal LandBack is not only feasible but it is the best possible solution for preserving the environment. Native Americans are the original stewards of the land and hold inherent indigenous knowledge concerning the care and protection of land that has been passed down through generations, years before settlement

1. Support for Indigenous Land Stewardship

Indigenous land stewardship is rooted in the idea that land is not a static unmoving entity, but rather is dynamic, relying on an interdependent relationship of a complex network of organisms.^[6] Because of the indigenous knowledge that emphasizes nature’s communal needs within its structure, areas that are managed by Indigenous people are more likely to be cared for with an understanding of biodiversity. Additionally, there is an argument to be made that the generations of indigenous existence have had a positive outcome on biodiversity, rather than just negating the damage that usually accompanies human interference. For example, the Wintu tribe in the Shasta region of Northern California took it upon themselves for millennia to ensure the safe travel of the Chinook Salmon upstream the McCloud River so the fish could reproduce. They would light fires at the edge of the river to guide the fish and physically carry the fish in baskets if necessary.^[7]

According to author Kat Anderson, “[t]he foundation of native people’s management of plants and animals was a collective storehouse of knowledge about the natural world, acquired over hundreds of years through direct experience and contact with the environment. The rich knowledge of how nature works and how to judiciously harvest and steward its plants and animals without destroying them was hard-earned; it was the product of keen observation, patience, experimentation, and long-term relationships with plants and animals. It was a knowledge built on a history, gained through many generations of learning passed down by elders about practical as well as spiritual practices. This knowledge today is commonly called ‘traditional ecological knowledge.’”^[8]

Tribes themselves have known this forever, but recent trends have shown that governments who are honoring government to government advice, are beginning to reflect this idea of appreciating and using tribal knowledge. This year, in response to a government initiative, Geneva Thompson, the Deputy Secretary of Tribal Affairs for the California Natural Resources Agency said, “We know that lands benefit and are healthier by being stewarded by tribes and by being lived with in relation to tribal traditional ecological knowledge and cultural practices”^[9] Not only is indigenous land stewardship beneficial, a report released in November 2019 by Environmental Science and Policy argues that Indigenous lands managed in Australia, Brazil, and Canada show biodiversity that is equal to or higher than protected areas, such as National Parks.^[10]

The relationship that indigenous people have to the land is just different from the traditional Western viewpoint. In 2020, President Trump returned the National Bison Range in western Montana to the Salish and Kootenai Tribes and the two tribes are now co-managing the range’s bison that leave Yellowstone Park.^[11] Plains tribes have a deep relationship with the Bison, which once provided shelter, clothing, buffalo grease (a medicinal salve) and food for several families or entire communities. In 1941, Henry Burland wrote “Buffalo power, being considered supernatural, was appealed to for the healing of the sick, for protection from enemies, and for prophecies regarding the welfare of the individual petitioner and the destiny of the tribal group.”^[12]

Despite this evidence, LandBack has remained elusive to the general public, and threatening to private landowners. In the next sections, I’ll bring your attention to some examples of successful transactions, how they came to happen, the parties involved and the benefits that resulted.

III. Esselen Tribe in Big Sur

LandBack is coming in many different forms, including those discussed here. It has come in the form of settlements, purchase, donation, and private sale. Not all the land is being returned freely, so in some cases, Tribes are purchasing it back themselves. In July 2020, the Esselen Tribe purchased a 12,000-acre ranch near Big Sur, Calif., as part of a multi-million-dollar deal.^[13] The purchase of the land will enable the conservation of old-growth Redwoods, and other endangered wildlife such as the California condor and red-legged frog as well as the Little Sur River, an instrumental spawning ground for steelhead trout.^[14] Furthermore, the Tribal leaders will be using the land for educational and cultural purposes by building a sweat lodge and a traditional village. The village will be built with a view of Pico Blanco Peak, considered to be the center of the tribe’s origin story.

Nonprofit land conservation organizations are becoming essential leaders in the LandBack process. In the case of the Esselen Tribe, the process to buy the land took 15 years. Originally, the property was privately owned and after the owner’s death, it was put on the market. The Western Rivers Conservancy, based in Portland Oregon, worked for years to purchase the land and then hand it over to the US Forest Service, but formed a partnership with Esselen and instead conveyed that property directly to the tribe.^[15] Western Rivers worked with the California Natural Resource Agency to secure a 4.5 million dollar grant that covered the purchase of the land, negotiated down from the original 15 million dollar purchase price between the agencies.[16]

1. Intertribal Sinkyone Wilderness Council Purchase in Mendocino County

Shortly after the Esselen purchase, 523 acres of redwood forest were returned to Native Tribes in Mendocino. A group known as Save the Redwoods League purchased the land and then transferred it to the Intertribal Sinkyone Wilderness Council, consisting of 10 Tribes. The Tribes will serve as guardians of the land in partnership with the League.^[17]

The goal of these efforts is to connect and expand the redwood forests in the area. The forests are ecologically and culturally linked, to repair “components of an ecosystem that has been fragmented and that has been threatened.”^[18] The forest is also home to several endangered species including coho salmon, steelhead trout, marbled murrelets, and northern spotted owls. Negotiations to purchase this land from a private logging family took 14 years, beginning in 2006 and completed in 2020. The money the Redwoods League used for the purchase came from PG&E as part of their program to mitigate environmental damage. The information on the exact funding source is not publicly available but it is likely part of PG&E’s settlement with the state after the corporation was found liable in multiple wildfires within the state. The Redwoods League retains an easement on the property.

1. California: Steps in the Right Direction

In 2020, California Governor Gavin Newsom began the Truth and Healing Council, which is led and convened by the Governor’s Tribal Advisor and governed by a Governing Council of California Native American leaders.^[19] Established by Executive Order N-15-19, the Council was established in order to “shape the overarching focus and develop the work of the Council and shall endeavor to accurately represent the diversity of experience of California Native Americans within the state of California”^[20]

This year, as a result of some of the work provided by that Council, the state has announced a $100 million Tribal Nature Based Solutions grant program. The grant is available to any of the 109 federally recognized tribes as well as the 40 tribes that have applied for federal recognition and was developed in order to advance the state’s climate goals by giving tribes the opportunity to buy land for conservation and cultural projects.^[21] These climate goals include the 30x30 plan, which aims to conserve 30 percent of California land and water by the year 2030.^[22] 30x30 plans are a government initiative, and the United States Government, under the Biden administration, has committed to one as well. It is alternatively known as “America the Beautiful.”[23]

1. Conclusion

While these examples are a good start and have created public awareness of the benefits of tribal land stewardship, the way forward shouldn’t have to rely on nonprofit organizations in order to create the pathways for tribes to take ownership of their ancestral lands. The government stole the land, the government should be giving it back. The work of these nonprofit organizations should be acknowledged, but nonprofits are limited in their resources and in many of the cases discussed in this blog, more than one had to contribute in order for the transaction to occur.

There are many LandBack movements that have happened throughout the country in recent years, but none of them have come easy. An island in California was returned by the city of Eureka to the Wiyot people in multiple land transfers between the years 2000 and 2019. The Cobell^[24] settlement, won by the Blackfeet tribe in 2009, was used to purchase remaining fractional interests on reservation land in Montana by making offers to private landowners. It took a fifteen year legal battle for the U.S. government to agree to repair the sacred site The Place of the Big Trees in Oregon when it was destroyed by highway construction in order to expand Highway 26. The restitution is coming but it is coming years too late and in the form of expensive lawsuits or funding.

Government programs like the grants currently being distributed in California are a much more effective way of getting the land into the hands of the rightful owners and ensuring that environmental protections will be there for generations to come. Currently, despite the promises by the current administration, there are no federal programs that follow this model. The government is the owner of much of the land at issue and has the resources to avoid costly legal battles and years-long negotiations. There is overwhelming evidence that this is the right thing to do for the environment and for society as a whole. There is also overwhelming evidence that we cannot afford to wait another 20 years in the court system to accomplish it.

*(Blackfeet Nation) California and VA licensed attorney. L.L.M., Candidate at Lewis and Clark School of Law. JD, Northwestern California University School of Law.

^[1]https://indianz.com/News/2022/01/27/peoples-world-landback-movement-gathers-momentum-around-the-globe/#:~:text=The%20LandBack%20movement%20was%20officially,the%20Blackfeet%20Confederacy%20of%20Canada.

^[2] https://www.kqed.org/education/535779/land-back-the-indigenous-fight-to-reclaim-stolen-lands

^[3]https://www.nytimes.com/2016/01/06/upshot/why-the-government-owns-so-much-land-in-the-west.html#:~:text=The%20United%20States%20government%20owns,owned%20by%20the%20federal%20government.

^[4]https://www.uaf.edu/tribal/academics/112/unit-4/generalprinciplesoffederalindianlaw.php#:~:text=Inherent%20Sovereignty%3A%20The%20sovereignty%2C%20self,those%20retained%20self%2Dgoverning%20powers.

^[5] https://www.vox.com/climate/23906426/winnemem-wintu-land-back-run4salmon-chinook-california-indigenous-peoples-rights-sovereignty

^[6]https://www.forbes.com/sites/morgansimon/2022/11/30/supporting-the-landback-movement-this-indigenous-heritage-month-can-help-mend-the-planet/?sh=24cb2e1345af

^[7] Id.

^[8]Anderson, K. (2013).Tending the wild: Native American knowledge and the management of California’s natural resources. Berkeley, California, University of California Press.

^[9] https://www.kqed.org/news/11957413/100-million-grant-to-assist-california-native-tribes-with-buying-back-land

^[10] https://www.sciencedirect.com/science/article/abs/pii/S1462901119301042?via%3Dihub

^[11] https://e360.yale.edu/features/how-returning-lands-to-native-tribes-is-helping-protect-nature

^[12] Id.

^[13]https://peoplesworld.org/article/the-landback-movement-is-decolonizing-indigenous-land-across-the-americas/#:~:text=The%20LandBack%20movement%20was%20officially,%2C%20beadwork%2C%20and%20other%20art.

^[14]https://www.theguardian.com/us-news/2020/jul/28/northern-california-esselen-tribe-regains-land-250-years

^[15] https://www.westernrivers.org/projects/ca/little-sur-river

[16] Id.

^[17] https://www.kqed.org/education/535779/land-back-the-indigenous-fight-to-reclaim-stolen-lands

^[18] https://www.nytimes.com/2022/01/26/us/california-redwoods-native-american-conservation.html

^[19] https://tribalaffairs.ca.gov/cthc/about/

^[20] https://www.gov.ca.gov/wp-content/uploads/2019/06/6.18.19-Executive-Order.pdf

^[21]https://www.kqed.org/news/11957413/100-million-grant-to-assist-california-native-tribes-with-buying-back-land

^[22] https://www.californianature.ca.gov/

[23] Id.

^[24] Cobell v. Salazar, 573 F.3d 808