Ending the curse of trust
The era of federal tribal trust land must end. It no longer makes any sense
and it doesn't even work.
It also serves as the single largest impediment to Indian country's
economic growth and tribal sovereignty.
The 120-year-old underlying rationales for trust land are gone. So why do
we have it? I really can't think of a good reason.
The federal government has a general trust and treaty obligation to Indian
country that encompasses health, education and housing. These obligations
must be honored. However, this obligation doesn't need to include
controlling all of our land, its usage and its natural resources.
Because the trust obligation and trust land sound so similar, we tend to
think of them as symbiotic and vital to tribal status. But trust land
doesn't confer any special benefits. And it isn't part of our culture. We
just have been living with it so long that we have quit questioning its
We shouldn't be trying to protect trust land status. On the contrary, the
very name and concept of trust land should be offensive to us. The only
time you have a trust for someone is when the person is too young,
irresponsible or considered mentally incompetent - ouch, all of us?
If you had to pick one reason why tribes and American Indians have suffered
so much poverty over the last 100 years, what would it be?
Back in the late 1800s, in order to stop scam land sales and egregious tax
seizures by state governments, the federal government took title to all
tribal and individual American Indian land. The side effect of creating
trust land practically guaranteed our poverty as tribes and as a people.
Trust land can't be sold, taxed, mortgaged or used as collateral. Trust
status severely restricts the tribe's and an individual's ability to use
our largest asset, our land and its resources.
Trust land prevents tribes from implementing property taxes. This lack of a
tax base has several negative impacts. It means no money for bonds, which
results in no money for local schools, no money for infrastructure projects
and no money for local law enforcement.
Trust land left us completely dependent upon the federal government. It is
no coincidence that the BIA is forced to operate our schools, build our
roads, and run our tribal law enforcement operations.
Trust status hurts individual American Indians. It prevents us from using
our land as collateral, which has effectively killed Native-owned
agriculture. This system left us with almost no choice but to lease out our
land, primarily to non-Indians. That's why we are land rich, but still dirt
Trust killed homeownership. We couldn't get a mortgage on trust land until
recently; and you had better have a couple years to wait for the paperwork.
Lack of homeownership, denies us the ability to establish equity and create
long-term wealth that can be passed on to the next generation. This lack of
wealth creation and the lack of ability to leverage our land severely
restricts tribal entrepreneurship.
These trust land-related issues make escaping poverty very difficult, if
not impossible, and leaves large portions of our population stuck in a
cycle of dependency.
What if the federal government tried to control states they way they
control tribes? They would have to set up a federal agency to manage all
land, handle all health issues, be in charge of all schools, set up a
bureaucracy to negotiate economic deals, and take full fiduciary
responsibility. Such an agency sounds ludicrous and anyone who would even
suggest it would probably be labeled a communist or, at the very least, a
socialist. Indian country would make Karl Marx proud.
The underlying rationale for trust land is gone. This isn't the 1880s. If
every other self-governing people in our country can buy and manage their
own land, then we should be able to as well. We did OK from 10,000 B.C. to
1492. Also, when the land went into trust status we were approximately 50
years from having tribal constitutional governments. Our governments have
largely matured to the point where we can manage our own land now.
The answer is to remove trust land from the general trust obligation.
Why not give us back our land? Title to trust land should be returned to
tribes and individuals in fee under a new tribal status. This new tribal
status must confer permanent jurisdiction, complete with full taxation
powers, to the tribe, ensuring that the land will always be subject to
tribal jurisdiction regardless of the race of the landowner. In one move,
we can liberate Indian country economically and politically.
I have discussed this issue with several government officials, tribal
leaders and tribal lawyers. Most are cautious at first and then
enthusiastic as they think through the positive implications for tribal
sovereignty and economic development. They especially want to make sure
that this idea isn't a prelude to some kind of back-door termination
policy. Each person also usually brings up some kind of unique situation or
problem that complicates the discussion. It is clear that there would be
many details to work out, but the basic concept is sound.
The beauty of this proposal is that tribes, Americans Indians and the
federal government win and nobody else gets hurt. Tribes will be able to
fund their government the way all other governments do - no, not through
casinos - through taxation. Both tribes and individuals will be able to
take back control of their own assets. Homeownership will explode,
impediments to entrepreneurship will be removed and our fractionated
heirship problem will disappear.
The federal government can get out of the trust land management business
and maybe even the Cobell litigation. It is costing taxpayers at least $400
million per year to manage approximately $380 million in funds. This money
could be distributed directly to tribes to make up for the major
under-funding issues that tribal programs have been dealing with for
The state governments should also favor this proposal. Reservations are
often economic dead zones. Making us economically prosperous can only help
state and local economies. Besides, the state doesn't have any control over
trust land now. We are just talking about solidifying jurisdiction and
taxing power over former trust land only, not land currently subject to
Even non-Indians shouldn't really care. Any individual or entity who deals
with a tribe on the new tribal lands will know upfront that they will be
subject to tribal jurisdiction. They will have entered into a contractual
and consensual relationship with the tribe by knowingly subjecting
themselves to tribal jurisdiction.
We no longer need to be protected. We claim to want sovereignty; well, here
it is staring us in the face. The only way we are going to achieve real
sovereignty is if we control our own destiny.
Besides, we speak English now. Give us back our land!
Lance Morgan is CEO at HoChunk, Inc.
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