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Restrictions that run with Land Base Types

From above left: fencing across vacant arid land, Crownpoint Agency; tribal and federal agency officials meeting at Chaco Canyon; homestead with garden plot, Ramah Chapter area; one of few remaining “camps,” above Naschitti, Chuska Mountains.

Different Restrictions for Land Base Types

Land was added incrementally to the reservation land base, first by the U.S. President and then by Acts of Congress over more than 100 years. Each new land base brought unique land use management restrictions depending on how and why that land base was added to the reservation. For a reservation the size of the Navajo Nation, the result is a patchwork of differently regulated land types that have prevented establishment of a unified tribal community vision. Please see our Land Base Formation Timeline for the patchwork history of reservation formation. 

Notwithstanding the many land bases formed over time, there are essentially three main federally regulated land types and areas: (a) allotments or individual Indian trust land; (b) tribal trust land established by the Navajo Treaty of 1868 and subsequent additions springing from the Treaty; and (c) tribal trust land established by Congress under the Navajo-Hopi Land Dispute Settlement Act of 1996.

Note on Allotments

The reservation land base for allotments did not spring directly from the Navajo Treaty of 1868, but from the 1887 Dawes General Allotment Act which was a Congressional law that sought to civilize tribal members by turning them into farmers “owning” individual allotment parcels with the federal government continuing to act as trustee over those parcels. This was a different kind of title from non-Indian land, and constituted a half-owner, half-beneficiary type of land that had not previously existed and has no similar type of land since. The ability of the federal government to invent a new kind of Indian title actually springs from Article V of the Navajo Treaty, which authorizes Congress to “fix the character of title” of land given to individual Indians. 

In 1934, Congress abandoned the allotment policy because it led to tremendous losses of tribal land across the U.S. due to fraud and sale, and also contributed to the erosion of Indian cultural traditions. This erosion is also felt on the Navajo Nation because federal law treats allottees so differently from other communities. Allottees “own” the surface and subsurface of their parcels, including mineral rights and benefits, and are referred to as “landowners”. Tribal members in other parts of the reservation do not have these rights. As landowners, allottees are concerned with mineral royalty rights and income, property rights of appraisals of mineral rights-of-way, federal probate, and joint tenancy allotment concerns that are entirely foreign to fellow tribal members. 

The 1934 Indian Reorganization Act (Wheeler-Howard Act extended federal control and responsibility indefinitely to those allotments that continue to exist. 

The BIA provides services on allotments in accordance with statutes and regulations specific to allotments:

 Below are restrictions on allottee land rights under the above federal laws:

Limited ownership rights. Allotees have no right to sell their land except back to the Tribe at a fixed price; Also, allottees do not manage their own mineral rights.

Federal probate requirement. Allottees are required to probate their allotments through the BIA Navajo Region Division of Probate Branch of Probate Estate Services (BPES),and probate is by the BIA Office of Hearings and Appeals (OHA) in Albuquerque. Remember that tribal probate law does not apply to allottees. 

“Joint Tenancies” and Fractionation. When allottees pass on without a will, all potential heirs are entitled to a fractional interest in the allotment as a whole, as “joint tenants.” This means none are able to develop any piece of the allotment unless they obtain majority consensus of the other joint tenants. When joint tenants pass on without a will, their interest passes to all their recognized heirs. After many generations, this has resulted in severe fragmentation or “fractionation” of allotments. Today there may be well more than 30,000 Navajo allottees, owning tiny fractions of the original allotment that are near impossible to develop due to numerous joint tenants. The federal government strongly encourages joint tenants to create wills that leave their fractional interest to only one heir, in order to avoid further fractionation.

Development limitation. Other than building a home pursuant to a residential lease, allottees are unable to independently develop their fractionated allotments unless a majority of other joint tenants agree. 

Special treatment of allottee residences. Allotees must obtain a “residential lease” prior to building a home. The mechanism of a residential lease places allottee homes outside joint tenancies and prevents fractionation of allotee homes. However, it also prevents allottees from outright owning their residences, and brings allottee homes under a management scheme similar to homes on tribal trust land. 

Land Buy-Back. To prevent further fractionation, the 2009 Cobell-Salazar settlement allows tribes to buy-back allotments and convert them to tribal trust land if the allottee consents. As of 2019, less than 1/4 of Navajo allottees invited so far to participate in buy-back have agreed to the buy-back.  

Note on Tribal Trust Land

After multiple failed attempts at terminating reservations (including the General Allotment Act and the termination acts, the federal government settled into decades of attempting to better manage the delivery and high costs of extensive trust services over reservation land management, health, education, and law enforcement that more and more included the option of increasing tribal control over a range of programs at lower costs. In 1968, the American Indian Movement began calling out systemic reservation issues of poverty, destruction of tribal culture, lack of autonomy over tribal areas, illegally seized lands, and police brutality. In 1975, the Indian Self-Determination and Education Assistance Act (ISDEAA) ushered in the present federal policy era of tribal self-determination, which has now been in place for almost 50 years, longer than any previous federal policy era.

For tribal communities including the Navajo Nation, self-determination means achieving restoration of tribal community, self-government, cultural renewal, reservation development, educational control, and equal or controlling input into federal government decisions concerning policies and programs. Federal policy since the ISDEAA largely support this community meaning.

However, there are 2 parts of the IDEAA that work at cross purposes–(a) unfunded customary tribal self-determination; and (b) contract and grant-funded delegation of extensively regulated federal government trust responsibilities to tribal governing bodies. For the Navajo Nation, this latter portion resulted in the Tribe structuring its laws and operations towards fulfillment of delegated federal trust responsibilities in order to ensure continued in-flow of federal funds. Education, law enforcement, health, and certain resource management were delegated, portions at a time, to the Navajo Nation under PL93-638 contracts. 

A more recent third option was floated first to the Navajo Nation in the Navajo Trust Land Leasing Act of 2000 (NTLLA) and then to all tribes in the Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act). Under this option, tribes take control of land leases and permits on an unfunded basis once federal lease regulations are substantially adopted under tribal law. Other than the Navajo Nation, few other tribes have embraced this option, and then only for commercial leasing. The option appears to shift the burdens of lease management to tribes and deepen colonization without any financial benefits. Even if this option is chosen by a tribe, by no means does it require that the tribe adopt leases and permits as its sole land use management system. The most pressing community objections, across the Navajo Nation, are with how leases and permits are creating family conflicts, imposing conditions that isolate and frustrate community ingenuity, and destroying kinship cultural life.

In the present self-determination era, the Navajo Nation has considerable ownership powers that it has not yet exercised on tribal trust land base areas (Treaty lands and subsequent additions) to decide its own cultural systems of how land is given and used by tribal members. These are inherent powers that are, nevertheless, subject to federal law encouragements and constraints.

This page continues to be developed with the assistance of law students. 

Contributors and research/editing support to this page: Retired Chief Justice Herb Yazzie, Roman Bitsuie, Donna House, Prof. Ezra Rosser of American University Washington School of Law, Josephine Foo of Indian Country Grassroots Support, law interns Kal Wu, Tanner Hancock, Abigail Walters, and Taylor Martin from American University Washington School of Law, and law intern Megan Gaddy from Elisabeth Haub School of Law at Pace University. Thank you Les Marston of Rapport & Marston.