Tribes Reclaim Stolen Lands

Since January 2014, Whatcom Watch has been rerunning articles from issues printed 20 years ago. The below article appeared in the December 1998 issue of Whatcom Watch.

Editor’s Note: This story of the transformation of Indian country was written by High Country News staff writer Greg Hanscom after visits to reservations and interviews with people across the West and in Washington, D.C.; it was reprinted with permission. The complete text can be found at https://www.hcn.org/issues/135/4328.

This is not a revolution that attracts headlines, like the sit-ins and confrontations of the 1960s. Rather than armed takeovers and battle cries, this revolution is made up of soil surveys, changes in the laws governing land inheritance, the control of capital and negotiations over leases. The revolution is both political and economic, and it promises to change the face of Indian country.

The Dawes Act: Dismantling Indian Country
Control of the land has been beyond the reach of many Indians for over a century, thanks in large part to a grand plan by the federal government in the late 1800s to turn Indians into “civilized” landowners.

Under the original treaties and agreements signed with the federal government in the 1800s, reservations were owned communally. But Christian reformers, led by U.S. Sen. Henry Dawes of Massachusetts, saw the reservation system as racial segregation that reduced Indians to paupers. Their answer was to dissolve the reservations and distribute land to individual Indians. Private ownership, they reasoned, would also ensure Indians a place of their own, safe from encroachment by homesteaders and miners, who continuously tried to move in on Indian lands.

“If you will prepare the Indian to take care of himself upon this land that is allotted, you will find the solution to the whole question,” Dawes told a gathering of the liberal Christian group, Friends of the Indians, in 1886. “He shall have a home and be a citizen of the United States, shall be one of us.”

Dividing the Land
His centerpiece was the 1887 General Allotment Act, or the “Dawes Act,” that authorized the president to survey Indian lands and assign farm plots to individual Indians. Married couples received a quarter-section, or 160 acres; single adults got 80 acres, and children 40 acres. But instead of bringing Native Americans into contact with the land, the law drove them away from it. When reservations were divided, government agents gave some Indians land that could never be irrigated, much less farmed. Family members might be allotted tracts on opposite ends of reservations.

Once each Indian was given an allotment, the Interior secretary bought “surplus” reservation land—sometimes the most desirable land on the reservation—and opened it to non-Indian homesteaders or railroad companies. The practice led to “land runs,” where white settlers lined up at reservation boundaries to wait for the official gunshot signifying the opening of new territory for settlement.

Islands of Private “Fee” Land
Accompanying the settlers´ hunger for land was the fact that not all Indians wanted to be farmers. Within four years of the Dawes Act, the Department of the Interior, which held Indian land in trust, was leasing allotted lands to non-Indians. Over the years, many Indians sold their allotments to nonIndians. Others were cheated out of their land, creating islands of private “fee” land within reservation boundaries.

John Collier, commissioner of Indian affairs under President Franklin Roosevelt, ended the allotment system by convincing Congress to pass the Indian Reorganization Act of 1934. But much damage had already been done. When Congress passed the Dawes Act in 1887, there had been 138 million acres of Indian land in the United States. By 1934, that number had plummeted 65 percent, to 48 million acres.

A Promise Dissolves
The erosion of Indian land ownership didn´t stop with the end of the allotment system. Because Native Americans had no written wills, the Dawes Act set up inheritance codes. When the owner of a piece of land died, the Bureau of Indian Affairs kept the land physically intact, but divided it on paper by giving each heir an “undivided” interest in it.

The inheritance rules were the undoing of Dawes´ promise of private land and a home Indians could call their own. As Indians died and their property was passed on, the number of owners increased exponentially. Today, many parcels of land have hundreds of owners spread around the country.

Intermarriage between tribes means Indians often inherit interest in land on several reservations. With each passing generation, Indian ownership in land washes out like an arroyo in a spring flood. And as the gully between Indians and their land widens, Indian people depend more on the Bureau of Indian Affairs, which today acts as the trustee of the current 55 million acres of Indian land.

Fractionated Ownership
In order to grow potatoes, build a home or sell an interest in fractionated land, an individual needs permission from a majority of the others who own interest in the land. Consensus is tough when there are only a few owners, and nearly impossible when there are a hundred owners, whose addresses and phone numbers are kept secret from each other by the bureau under the Privacy Act.

“You basically can´t do anything with Indian land without getting through a maze of federal regulations,” says Theresa Carmody, a member of the Seneca tribe and an expert on Indian land tenure from Wagon Mound, N.M.

Critics say the system is designed to be abused. As fractionated ownership pushes Indians farther from their land, the bureau hears little from landowners, but plenty from the non-Indian farmers who lease the land. Naturally, the bureau tries to keep farmers and other lessees happy, says Carmody.

Non-Indians Reap Profits
“The system is not in place to empower” Native American landowners, says Carmody, who has worked for the National Congress of American Indians in Washington, D.C. and the Boulder, Colo-based Native American Rights Fund. “The system is in place to lease.”

The numbers support her charge: non-Indians lease 70 percent of all Indian agricultural land, according to a 1990 bureau report. Because Indians are cut off from their land, most reservations remain economic colonies, where the Bureau of Indian Affairs manages land and resources, and non-Indians reap the profits.

One of the major problems is a lack of access to capital. Banks are reluctant to lend money to Indians on reservations, where clear title to land is rare, and where repossessing property may be impossible under tribal laws.

As a result, says John Halliday, director of economic development for the Muckleshoot Tribe in Washington, banks have given only 93 conventional home loans in all of Indian country in the last 15 years. Halliday calls the situation “organized poverty, the most violent kind of racism there is.”

A Groundswell of Change
The federal government has tried several times to remedy fractionated ownership, but its solutions have strengthened tribal governments at the expense of individual landowners. One 1983 bill even declared interests of less than 2 percent of an allotment worthless, and turned them over to the tribes. The Supreme Court later found the “2 percent rule” unconstitutional.

But a growing community of Native Americans is not waiting for the federal government to solve its problems. Some, like Ernestine Werelus in Fort Hall, Idaho, are tackling the bureau head on, fighting for a voice in the way land is managed and leased. Others are helping Indian people reduce the number of landowners by writing wills and by buying and trading fractionated interests. Some tribes have adopted codes that only allow tribal members to inherit land on their reservations, while others are pushing banks to start lending money in Indian country.

Scattered efforts like these have flared up in the past, but they never caught on at the national level. Now, the movement is spreading. Tribes are organizing, exchanging ideas and building viable economies on Indian reservations while trying to maintain their cultures and autonomy.

“We see it happening gradually. The road is long and there are still some real barriers out there, but that´s life,” says Theresa Carmody, a New Mexico Indian activist.

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