In January 2014, the University of Arizona Native Peoples Technical Assistance Office and the Indigenous Peoples Law & Policy Program co-hosted a conference in Tucson on the Cobell Settlement Land Buy-Back Program. This conference detailed the history of allotted lands, the current status of the Department of the Interior Land Buy-Back program for Tribal Nations, how the land buy-back program was working for one tribal nation, and the drawbacks and ethical issues surrounding the land buy-back program.
1) Cris Stainbrook, Oglala Lakota, President, Indian Land Tenure Foundation
Cris Stainbrook's presentation sets the stage for the land buy-back program by outlining historical tribal/federal government land policies, particularly allotment. Allotment transferred small parcels of land to individual Indians, with the federal government retaining control over the commercial use of those lands as trustee. Among the many negative effects of the allotment policy was the ultimate fractionation of the lands into smaller and smaller undivided co-ownership interests, which the federal government is required to track and for which it maintains an Individual Indian Money (IIM) account for each co-owner. The Cobell litigation attempted to have the government recreate its' accounting of the IIM funds since the beginning of allotment, which it could not do. The Cobell settlement included funds to buy back – and place into tribal ownership – allotted lands. Learn how these things came about in the context of land allotments and fractionation in the following video.
2) John McClanahan, Program Manager, Department of the Interior Land Buy-Back Program for Tribal Nations
From the perspective of the DOI, the key to the buy-back program is to try to resolve the fractionation issue and restore land holdings, if possible, to a situation where the land is owned in a more effective land-use pattern. Through this they hope to reverse some of the negative effects of the allotment policy. The buy-back program is required by the Cobell settlement to be completed within a ten-year period and will go through four major steps: outreach, land research, land valuation, and land purchase. The preliminary draft of the plan for the buy-back process has been published and aims to purchase lands on the 40 most highly fractionated reservations first. In order to fulfill the outreach portion of the plan, the Interior is relying heavily on the assistance of the tribes. Listen to McClanahan's presentation to learn about the challenges, goals, and processes of the buy-back that will result in the transfer of fractionated allotted lands into tribal ownership in the following video.
3) Denise Mesteth, Director, Oglala Sioux Tribe Land Office
The Oglala Sioux Tribal Council pushed to be one of the first nations involved in the land buy-back program for tribal nations for two main reasons: to increase the income of tribal members, even if on a temporary basis, and to promote economic development at Pine Ridge. The nation had many meetings with John McClanahan and his staff in working through the buy-back. One of the issues the nation thought was very important early on was setting a minimum purchase price for an allottee's interest. Another priority interest was the land around the national park, which the tribe will be taking back. Not only is that land ripe for economic development associated with the park but the park is also an opportunity for the tribe to tell its own story in its own way. A great concern to Ms. Mesteth is the need to create economic development at Pine Ridge quickly, so that the nation can reap the benefits of buy-back income to tribal members rather than off-reservation towns. Watch the video to learn about some of the things Pine Ridge did to reach out to tribal members and inform them of the buy-back, as well as possible opportunities to consolidate lands into more usable parcels.
4) Gabe Galanda, Esq. Galanda Broadman
Gabe Galanda's presentation is entitled "The Perils of Indian Land Buy Back" and concentrates on the tension between individual allotment owners and the tribes who will ultimately obtain the lands those owners sell. Galanda expresses concern that individual landowners will be forced into selling lands once the tribe obtains a majority interest in an allotted parcel. He challenges the Department of the Interior for what he perceives as its failure to consider alternative solutions to the plan being put in place. He sees that plan as an effort to erase government liability for failure of its fiduciary obligations and as insufficiently transparent from an Indian perspective. Galanda also sees an inherent conflict for the Interior in working for both the individuals selling allotments and the tribes purchasing them. And though he does not like the plan, he also dislikes the fact that many tribes will be excluded from it. Read his materials and watch the video to see how Galanda addresses each of these issues and why he concludes that "if $2 billion sounds too good to be true, it probably is."
5) Robyn L. Interpreter, Esq.
Robyn Interpreter spoke about Ethical Issues in Representing Allottees. She conducts a step-by-step analysis, which is exactly what any attorney in the situation of representing an allottee should do, to determine when and how ethical concerns might present themselves in that representation. The trust responsibility of the federal government raises the first issue: Is there a conflict between the trust responsibility to a tribe and the trust responsibility to an allottee? Allottees should pay close attention to what is happening in the buyback context, as the government may not fully represent their interests when they are also working with the tribes. Some allotment parcels are better placed for future development and should draw a bigger purchase price: Who is taking that into consideration? How will attorney fees be paid if an attorney represents a selling allottee? What do attorneys need to do to qualify to practice on specific reservations? Finally, how do the specific ethic rules impact what you need to know and how you should proceed for your client?
6) Robert Alan Hershey, Conference Moderator, Professor of Practice & Director, Indigenous Peoples Law Clinic
Robert Alan Hershey has specialized in Indian affairs for four decades. He is a professor at both the law and American Indian studies faculties and director of clinical education for the Indigenous Peoples Law & Policy Program at the University of Arizona. Professor Hershey received his law degree from the University of Arizona College of Law in 1972. He then worked as staff attorney for the Fort Defiance Agency of Diné Beiiná Náhilna Be Aga'diit'ahii (DNA Legal Services). From 1983 to 1999, he served as special litigation counsel and law enforcement legal advisor to the White Mountain Apache Tribe, and, from 1995 to 1997, as special counsel to the Pascua Yaqui Tribe. Professor Hershey also serves, now for more than 20 years, as judge pro tempore for the Tohono O'odham judiciary, and he was an associate justice for the Yavapai-Prescott Indian Tribal Court of Appeals. For the past twenty years he has taught Indian law at the University of Arizona James E. Rogers College of Law. He also teaches a globalization and the preservation/transformation of culture course, and has written extensively on that topic.