Land Trusts as the New Stewardship

Mark Fogarty
9/8/11

Land issues always seem to top Indian country’s list of concerns. Now, an important book details new strategies to recover or at least gain stewardship over lost lands.

Trust in the Land: New Directions in Tribal Conservation by Beth Rose Middleton (University of Arizona Press, 2011) examines Native implications for the use of land trusts and conservation easements. These fairly new tactics in Indian country have had considerable success and show great potential, Middleton writes. Indeed, trusts and easements have worked small miracles, not just for federally recognized tribes but also for unrecognized ones and even the vanished.

Take the Sinkyone of California, massacred and removed in the 19th century. The remaining members joined 10 other tribes that, years later, have come together to create a nonprofit land conservancy that has regained 3,845 acres, known as the InterTribal Sinkyone Wilderness.

Recovery of ancient land, or even stewardship or access, can also engender cultural success stories. For instance, the Native American Land Conservancy is preserving Chemehuevi and Paiute Salt Songs by buying 2,500 acres in the Old Woman Mountains of California, where the traditional songs were sung.

There’s also the partnership between Natives and the Cache Creek Conservancy, which have created a garden in California’s Jan T. Lowrey Cache Creek Nature Preserve to supply basket weavers who were having trouble finding the plants they had woven with for generations. The two-acre project harks back, at least metaphorically, to the original lost garden.

Middleton also discusses cultural conservation easements, in which a landowner agrees with another party not to develop his or her property for a specified length of time. Such easements “can affirm Native entities’ stake in the ownership and stewardship of ancestral lands that are no longer tribally held,” Middleton writes.

Such partnerships can flower even when the parties have divergent ideas. Many conservationists are of the leave-it-alone philosophy, while Native people prefer to properly use the land.

Befitting its author, an assistant professor of Native American Studies at the University of California-Davis, Trust in the Land is a scholarly book; chapter two alone has 124 footnotes. But this is no dry, academic screed. It is a passionate work that sizzles with lucid test cases, exhaustive research and an emphatic advocacy for tribal sovereignty, environmental justice and fresh thinking.

_____________________________________________

How Beth Rose Middleton Got Her Trust On

The author of Trust in the Land talks about the use of land trusts and conservation easements in Indian country.

How did you get involved in Indian land issues?

When I was an intern at the Sierra Institute for Community and Environment in Taylorsville, CA in 2001, Sierra Institute shared an office with the non-profit Maidu Cultural and Development Group (MCDG). The MCDG coordinator at that time was working to trace the history of ownership of parcels under Lake Almanor, a reservoir in Plumas County that serves as a higher elevation storage and power generation facility for the State Water Project. She had a complex map of Maidu allotments, PG&E company land, and unidentified federal land that composed the bottom of the lake. I became involved in a project to help her identify who owned the lands under Lake Almanor and how the power company (PG&E) gained permission to acquire and inundate them.

At the same time, I began working with the MCDG’s Maidu Stewardship Project Coordinator. At the time, the Maidu Stewardship Project was the only U.S. Forest Service Stewardship Pilot awarded to a Native American group, and it encompassed 2,100 acres outside of Greenville, California, on which to test innovative contracting opportunities. I worked with the stewardship coordinator on the Maidu Science Team and received training from him to assist with monitoring protocols for the stewardship project. These experiences motivated me to work to find ways to address the injustices of alienation of Indian land, and to assist by identifying legal tools to regain land ownership in the Maidu homeland and throughout Indian Country.

When did the idea of using land trusts and easements start in Indian country?

The first use that I can identify of this type of agreement involving a tribe (or group of tribes) in the U.S. is the work of the InterTribal Sinkyone Wilderness Council in northwestern California, a non-profit formed in 1986 and composed of formal representatives of 10 member tribes. Following many years of work to raise public and private support, the council was able to purchase a 3,800-acre culturally important parcel. In order to gain the support to purchase the parcel, and to meet their own goals of conserving the site, the Council worked with two non-Native land trusts to negotiate conservation easements held by those trusts on their land, as well as two offers-to-dedicate with the state conservation agency the Coastal Conservancy. This is the first time that I know of that a Native organization purchased land and placed easements on it in order to make that purchase possible.

How many have been done, and what's the total amount of land involved?

Until an organization like the Land Trust Alliance forms for Native land trusts, it is difficult to say how much acreage has either moved into tribal ownership or is now partially overseen by tribes, using these conservation tools. The Land Trust Alliance (LTA) emerged as an umbrella group for mainstream land trusts that does a national survey of land trusts every five years. In order to collect that kind of data on Native land trusts, there needs to be either a significant Native focus in the LTA, or a Native-specific organization monitoring Native land trusts and Native use of conservation easements.

Many tribes have their own buyback programs to reacquire their traditional land bases. How do land trusts and conservation easements dovetail with tribes' own land programs?

I think they are just another tool, and one that provides some financial incentives for external landowners to transfer land to the tribes. Some tribes have passed codes to enable the formation of tribal land trusts under tribal law. Once a tribe (or a multi-tribal group) has established a nonprofit conservation organization (land trust) that can receive title to lands, it can receive donations or purchase lands and offer sellers the same tax benefits that mainstream land trusts offer. Having a nonprofit conservation organization also enables access to state and federal conservation funding for land purchases. I think tribal land trusts and conservation easements may offer tribes some additional resources for acquiring lands.

What are the biggest challenges to this kind of land advocacy?

One of the biggest challenges is the question of the impact on tribal sovereignty. Say a tribe would like to purchase a culturally important parcel. The tribe typically has to issue a limited waiver of sovereign immunity on that parcel so that the land trust can enforce the easement if the tribe were to breach the conservation agreement. Some tribes may not want to issue even a limited waiver of sovereign immunity, whereas others have established good working relationships with external land trusts, may even have a stake in the management of these land trusts, or may have designed the process such that it falls under an exercise of tribal sovereignty (i.e., enforcement in tribal court). The question of enforcement of easement terms against a tribe is one that tribes and conservation partners have to work out when they develop land conservation plans.

Another challenge is working to form a relatively unknown tribal institution—a Native land trust. Before larger Native land trusts like InterTribal Sinkyone Wilderness Council, Native American Land Conservancy, and Indian Country Conservancy emerged, there weren’t many examples of tribal land trusts.

A final challenge I will note here are tax incentive issues. The conservation easement tax incentive that enables landowners to receive a tax deduction for donating land to a land trust has been largely responsible for the exponential growth and success of land trusts over the last three decades. The question remains as to how well tribes and Native land trusts can take advantage of these incentives.

What is the most outstanding use of land trusts/conservation easements in Indian country to date?

Trust in the Land includes several outstanding examples, such as the preservation of culturally irreplaceable sites by InterTribal Sinkyone Wilderness Council, Native American Land Conservancy, Kumeyaay Diegueno Land Conservancy, Eastern Band of Cherokee/ Land Trust for the Little Tennessee, Nisqually Tribe/ Nisqually Land Trust, Jamestown S’Klallam Tribe/ North Olympic Land Trust, and more. Additional inspirational examples are also available on the website of the Trust for Public Land’s Tribal & Native Lands Program, and the Indian Country Conservancy website.

You need to be logged in in order to post comments
Please use the log in option at the bottom of this page