The establishment of reservations dramatically reshaped the landscape of Native American life. Once expansive tribal territories were reduced to mere fractions of their original size, and traditional Indigenous land tenure systems, deeply intertwined with cultural practices and societal structures, faced significant disruption. While some customary practices persisted for a time, they were not universally sustained across all reservations. This article explores the complex evolution of land tenure on reservations, examining the interplay between federal Indian law, tribal governance, and the enduring impact of historical policies. The discussion emphasizes the multifaceted nature of Reservations: Land Tenure and Federal Indian Law.
Instead of recognizing and supporting existing Indigenous systems, the federal government implemented a new framework that placed tribes under the authority of federal entities. Initially, this authority rested with the military, but it later transitioned to the Bureau (Office) of Indian Affairs (BIA). Federal law dictated that reservations were to be patented to tribes, transforming them into legal entities that, over time, began to operate with a corporate structure. This shift marked a profound departure from traditional land relationships and established a new legal foundation for tribal governance.
Tribal Authority and Economic Development
Tribal tenure grants tribes significant jurisdiction over land use planning and zoning within reservation boundaries. This authority extends to negotiating leases for resource extraction activities such as timber harvesting and mining, although the BIA typically plays a crucial role in these negotiations. This oversight reflects the continuing federal influence over tribal affairs, even in areas of seemingly local control.
Beyond resource extraction, tribes generally possess the authority to oversee a diverse range of economic development activities. These include ranching, agriculture, tourism, and, notably, casino operations. These ventures represent important opportunities for tribes to generate revenue, create employment, and promote economic self-sufficiency within their communities.
Tribes often employ a mix of tribal members, other Native Americans, and non-Native individuals in various capacities within these economic enterprises. They may operate tribal stores, gas stations, and develop cultural institutions such as museums, showcasing their history and heritage. Examples of this include the gas station and general store at the Fort Hall Indian Reservation in Idaho and the museum at Foxwoods, located on the Mashantucket Pequot Indian Reservation in Connecticut. These ventures not only provide essential services and employment but also contribute to the cultural vitality of the reservation.
Tribal members also have the opportunity to utilize resources held under tribal tenure, such as grazing land and cultivable lands. They may also construct homes on tribally held lands. In this context, members are often considered tenants-in-common, a concept that bears resemblance to communal tenure systems. While some aspects of this arrangement may reflect pre-reservation tribal customs, the tribe generally retains the authority to modify tenant-in-common practices, highlighting the ongoing evolution of land tenure systems within the context of federal law and tribal governance.
The Dawes Act and Allotment
The General Allotment Act, also known as the Dawes Act, of 1887, represented a significant turning point in federal Indian policy. This act aimed to individualize tribal lands by authorizing the allocation of allotments held in individual tenure. The underlying premise was that private land ownership would encourage assimilation and integration into mainstream American society.
The allocation process often resulted in the grouping of family holdings, and in some cases, this inadvertently preserved pre-reservation clan or kinship patterns. However, the primary objective of the Dawes Act was to dismantle tribal land ownership and promote individual ownership.
While a few allotment programs predated the Dawes Act, the vast fragmentation of reservations occurred between the act’s enactment and 1934, when the Indian Reorganization Act (IRA) was passed. The IRA sought to reverse the policies of the Dawes Act and promote tribal self-governance. However, even after the IRA, Congress authorized some allotment programs in subsequent years, such as the program on the Palm Springs/Agua Caliente Indian Reservation in California, demonstrating the complex and often contradictory nature of federal Indian policy. The Reservations: Land Tenure and Federal Indian Law continues to evolve.
The Profound Consequences of Allotment
The allotment policy initiated by the Dawes Act set in motion a series of far-reaching consequences that continue to impact Indian Country today.
First, the Dawes Act allowed individuals to sell or "alienate" their allotments, although this was initially restricted for a period of twenty-five years. Once this restriction was lifted, many allottees sold their land to non-Native individuals, leading to a significant loss of tribal land.
Second, individual allottees who died intestate (without a will) faced the complexities of prevailing state devisement laws, which often resulted in complex patterns of heirship. Over time, allotments became fractionated into numerous ownership shares, making it difficult to manage or utilize the land effectively. Congress has attempted to address the issue of heirship through financial grants to tribes, enabling them to acquire fragmented allotments and incorporate them into long-range land use planning.
Third, the alienation of allotments to non-Native individuals led to an increased presence of non-Native populations within reservation boundaries. This demographic shift has significantly altered the landscape of Indian Country. One of the many implications of this is that tribes cannot always effectively manage an entire reservation because non-Native owners and users of allotted lands often argue that tribes lack jurisdiction over lands that fall under the tax and law-and-order jurisdiction of local government.
The demographic factor, coupled with land ownership data, has led to numerous legal disputes, such as the litigation between the Devils Lake Sioux and the State of North Dakota. In this case, non-Native individuals owned more acreage than tribal members, even though more Native Americans resided on the reservation.
The court decision in the Devils Lake Sioux case turned, in part, on the perception of "Indian character," contending that the tribe did not have jurisdiction over the alienated allotments. This highlights the ongoing challenges tribes face in asserting their sovereignty and authority over lands within their reservations.
In response to these challenges, some tribes, such as the Yakama Indian Reservation, have designated "open" and "closed" areas within their reservations. Open areas typically have a higher concentration of non-Native landownership and residence, while closed areas are reserved for exclusive tribal residence and related activities.
Tripartite Government and Contemporary Challenges
It is crucial to recognize that Indian Country today operates under a tripartite system of government, encompassing federal, state and/or local, and tribal jurisdictions. While state and local governments may exert some, albeit limited, law-and-order authority, tribal sovereignty is often diminished in these situations. This dynamic is particularly evident in the context of Indian gaming, where federal legislation requires the state to be a party to any contractual or statutory agreement.
Finally, other forms of occupancy on reservations may be based on tribal or individual tenure.
Many churches are located on reservations, typically occupying tribal land with the consent of the federal government or the tribe. BIA agency offices, hospitals, schools, and other federal facilities usually occupy residual federal parcels within reservations.
Curiously, many reservations also include one or more sections (approximately 640 acres) of school lands, which were granted to states at the time of statehood. These lands often remain idle or are used for grazing by tribal ranchers.
Reservations: Land Tenure and Federal Indian Law is a complex and dynamic area, shaped by historical policies, legal precedents, and the ongoing assertion of tribal sovereignty. As the relationship between tribes, the federal government, and state governments continues to evolve, the future of land tenure on reservations remains a critical issue for Native American communities. The evolution of Reservations: Land Tenure and Federal Indian Law continues to this day.