Reservations: Land Tenure and Federal Indian Law

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Reservation Economics

With the establishment of reservations, tribal territories diminished to a fraction of original areas and indigenous customary practices of land tenure sustained only for a time, and not in every instance.

Instead, the federal government established regulations that subordinated tribes to the authority, first, of the military, and then of the Bureau (Office) of Indian Affairs. Under federal law, the government patented reservations to tribes, which became legal entities that at later times have operated in a corporate manner.

Tribal tenure identifies jurisdiction over land use planning and zoning, negotiating (with the close participation of the Bureau of Indian Affairs) leases for timber harvesting and mining. 

Tribes generally have authority over other forms of economic development such as ranching, agriculture, tourism, and casinos.

Tribes hire both members, other Indians and non-Indians in varying capacities; they may run tribal stores, gas stations, and develop museums (e. g., there is a gas station and general store at Fort Hall Indian Reservation, ID, and a museum at Foxwoods, on the Mashantucket Pequot Indian Reservation in CT).

Tribal members may utilize a number of resources held in tribal tenure such as grazing range and some cultivable lands. They may also construct homes on tribally held lands. As such, members are tenants-in-common, which may be likened to communal tenure, but keep in mind, even if some of this pattern emanates from pre-reservation tribal custom, generally the tribe has the authority to modify tenant in-common practices.

The Dawes General Allotment Act

With the General Allotment Act (Dawes), 1887, the government sought to individualize tribal lands by authorizing allotments held in individual tenure.  Generally, the allocation process led to grouping family holdings and, in some cases, this sustained pre-reservation clan or other patterns. 

There had been a few allotment programs ahead of the Dawes Act, but the vast fragmentation of reservations occurred from enactment of this act up to 1934, when the Indian Reorganization Act was passed. However, Congress authorized some allotment programs in the ensuing years, for example, on the Palm Springs/Agua Caliente Indian Reservation in California.

Consequences of Allotment

Allotment set in motion a number of circumstances:

1) individuals could sell (alienate) the allotment – under the Dawes Act, it was not to happen until after twenty-five years.

2) individual allottes who would die intestate would encumber the land under prevailing state devisement laws, leading to complex patterns of heirship. Congress has attempted to mollify the impact of heirship by granting tribes the capacity to acquire fragmented allotments owing to heirship by financial grants. Tribes may also include such parcels in long-range land use planning. 

3) With alientation to non-Indians, their increased presence on numerous reservations has changed the demography of Indian Country. One of many implications of this fact is that tribes can not always effectively embrace the total management of a reservation, for non-Indian owners and users of allotted lands contend that tribes have no authority over lands that fall within the tax and law-and-order jurisdiction of local government.

The demographic factor, coupled with landownership data, led, for example, to litigation between the Devils Lake Sioux and the State of North Dakota, where non-Indians owned more acreage than tribal members even though more Native Americans resided on the reservation than non-Indians. 

The court decision turned, in part, on the perception of Indian character, contending that the tribe did not have jurisdiction over the alienated allotments. 

In a number of instances, for example, on the Yakama Indian Reservation, tribes have identified open and closed areas within reservations. One finds the majority of non-Indian landownership and residence in the open areas and closed areas represent exclusive tribal residence and related conditions.

Indian Country today consists of a tripartite government

It is important to recognize that Indian Country today consists of tripartite government – i. e., federal, state and/or local, and tribal. Where state and local governments may exert some, but limited, law-and-order authority, tribal sovereignty is, of course, diminished. This situation prevails in connection with Indian gaming, since federal legislation makes the state a party to any contractual or statutory agreement.

Finally, other occupancy on reservations may be by virtue of tribal or individual tenure. 

There are many churches on reservations; most would occupy tribal land by consent of the federal government or the tribe. BIA agency offices, hospitals, schools, and other facilities usually occupy residual federal parcels within reservations. 

And curiously, many reservations include one or more sections ( approx. 640 acres) of school lands, granted to states at the time of statehood. As a general practice, such lands may sit idle or be grazed by tribal ranchers.