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Buy Back Violates International Human Rights

Gabriel S. Galanda
3/12/14

On December 16, 2010, President Barack Obama endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with great fanfare. The U.S. State Department then proclaimed that the declaration expresses “aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”

Five days later, the U.S. District Court for the District of Columbia approved a settlement of Cobell v. Norton, which resulted in a $3.4 billion payout to a class of tribal members – $1.9 billion of which would eventually fund what is today the U.S. Department of the Interior’s Indian Land Buy Back Program. Unfortunately, the Buy Back Program does not mark any improvement in federal Indian law or policy. To the contrary, that program runs counter to UNDRIP and other international human rights laws.

The most troublesome part of the program is that it will facilitate the forced sale of tribal members’ allotted or restricted fee lands, and, in turn, forcibly and permanently remove individual Indians from their ancestral lands. This was not the result of Interior oversight — Interior has spoken in code about this reality from day one. In 2012, the department articulated a strategy to “identify tracts with relatively low fractionation and a few ‘large’ interest owners, the acquisition of whose interests could bring a tribe to a controlling level of interest in that tract with a minimal number of acquisitions.” As is now clear, “controlling level of interest” referred to a mechanism in the federal Indian Land Consolidation Act (ILCA) that permits tribes that acquire a simple 51 percent majority interest in allotted or restricted fee lands to obtain the minority owners’ land interests by forced sale. 25 U.S.C. § 2204(a).

A year later, after folks began to crack Interior’s code, the agency proclaimed: “There will be NO forced sales.” But when pressed for a more honest answer during consultations with tribal governments in early 2013 — roughly an entire year after the Buy Back strategy was pronounced (hardly “meaningful collaboration with tribal officials” promised by the Obama administration — agency top brass were forced to admit that once Interior brings a tribe into a controlling 51 percent interest, the controlling tribe is empowered by federal law to force the sale of the remaining minority interest(s). In other words, the Buy Back Program equates to forced sales of individual Indian landholdings.

Still, even in late 2013, Interior continued to pretend that “the Buy Back Program is strictly voluntary.” Most recently, Interior buried the following statement in an appendix to its Updated Buy Back Implementation Plan: “Under the March 2011 terms of the Settlement and the Claims Resolution Act of 2010, all sales are voluntary.” But, “The Department has no control over the prerogatives of sovereign tribal nations to exercise whatever rights they may have regarding the purchase of land outside of the confines of the Buy Back Program.” Again, Interior is misleading when discussing the forced sale provision of 25 U.S.C. § 2204(a).

Interior’s continued sleight of hand is appalling. But more importantly, the fundamental underpinning of the federal Buy Back strategy — catalyzing forced sales of individual Indian owned lands — violates international human rights.

Article I of UNDRIP makes clear that indigenous individuals “have the right to full enjoyment . . . of all human rights and fundamental freedoms as recognized in . . . international human rights law.” Article 17 of the Declaration of the Rights of Man and of the Citizen guarantees that “[p]roperty being an inviolable and sacred right, no one can be deprived of it, unless demanded by public necessity, legally constituted, explicitly demands it, and under the condition of a just and prior indemnity.” Article 17, of course, reads very similar to the Fifth Amendment of the U.S. Constitution, which prevents takings of private property for public use without just compensation (and incidentally, served as the basis for the U.S. Supreme Court’s smack down of the ILCA’s escheat provision in Irving v. Hodel, 481 U.S. 704 (1987)).

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jaydokie's picture
Gabriel, I always enjoy your articles. Excellent always. The AIPRA which absorbed ILCA statue has been in effect since 2000 and amended in 2004. The ability of tribes to acquire estate interests or living individuals has been available since then but is hardly ever utilized. Only now is it coming to the forefront because of the Land Buy Back Program under the Cobell Settlement. It could only be a forced sale if the tribe owns more than 50% interest in the tract. There are provisions prohibiting forced sale. If the tribe owns 50% or less, they would need to find smaller interest landowners and acquire their interest to meet the more than 50%. If one of landowners has farmed or ranched the land for 3 consecutive years, they can match the tribe's offer. As I understand it, a full blown appraisal isn't being done, but rather a market analysis which means the value will be shorted for prime land and higher for lesser land in the area. Good for some, bad for others. Tribes received tribal trust settlements based on the Cobell negations using funds from individual Indian Money case. Figure that out. Sen. McCain offered $8 bil in 2007 which would have all been paid out to Indians. Instead, they held out for $3.4 bil and set aside $1.9 bil for tribes to give it back to them by buying their land. What a mess. Anyway, I'm right there with you. Keep the heat on. Great article.
jaydokie