Some clarifications on reservation land

Above from left: Preserving the Navajo Agro-Pastoral Life Way; COVID-19 Relief Money Is Spurring a Push to Electrify Navajo Nation Homes; Drought intensifies Navajo Nation Water Shortage; NHA Housing project. 

This page is slowly being developed with the help of law and policy students. 

Housing & Rentals

In the 1920s, the federal government began requiring single-purpose permits and leases of limited duration issued in the names of individuals. This left unregulated the Diné generational and collaborative stewardship of land, and drove extended family settlements underground. The federal government continued to manage the lease and permit system through the BIA until just a few years ago. 

In 2000, Congress extended to the Navajo Nation the privilege of managing its own leases and permits if the Tribe established the lease and permit system under tribal law. The privilege was also unfunded. Nevertheless, the Tribe established the system in order to exercise control over reservation land. The Tribe has done so with a great deal more rigidness, expense, and bureaucracy than the BIA, and with a lot of costs passed onto community applicants. 

(It must be noted that federal law requires “residential leases” for individual trust (checkerboard) land, but does not require any lease system on tribal member homes on tribal trust land. The Navajo Nation can, and should, explore alternative options for settlement under customary law).

Under 2016 tribal homesite lease regulations, Diné tribal members today may apply for “homesite leases” in tribal trust areas, and “residential leases” in individual trust (checkerboard) areas. 

Housing project rentals and governmental backed “mortgages” are an option through the Navajo Housing Authority and other tribal-chartered housing enterprises. There is limited subdivision housing on fee (privately owned) land that non-tribal members may also pursue. 

This is a phrase coined by the Arizona Republic newspaper as part of an in-depth investigation in 2016 that discovered more than 34,000 tribal families lack housing, up from 21,000 the previous decade, in spite of billions of designated public housing funds. See The Navajo Housing Tragedy; Why it’s so difficult to build homes on the Navajo reservation; and NHA Plans to Build. The investigative reports focused mainly on housing project failures. However, tribal members obtaining and/or legitimizing homesite leases have immense barriers not easily reported. See e.g. Uninhabitable flooded Navajo communities, in which communities without homesite leases cannot obtain relief. The homesite lease process today engulfs a family’s finances through paying for archeological, environmental and biological surveys; many thousands to probate permits; and more expense to build. Homes are frequently set down on grazing permit lands without utilities, water, or leach fields and septic tanks. An unknown percentage of reservation homes are essentially unsafe squats with no roadways.

Barriers to obtaining homesite leases or housing project units are widely blamed for youth flight. According to the 2020 census tribal consultation report. 52.7% of Diné now live off-reservation compared with 20.9% in 1980. Lack of housing is also frequently stated as the reason for widespread governmental vacancies. The Spring 2023 Session of the 45th Navajo Nation Council was informed that 30% of legal positions at the Navajo Nation Dept. of Justice are vacant largely due to housing. All Navajo EPA compliance officer positions are vacant; and 139 Division of Natural Resources positions are vacant, most responsible for assisting land use surveys and applications. A 2021 Organizational Assessment also noted that police positions in an already reduced force cannot be filled. 

There is a historical perception of shortage of land, even though much land is vacant. Diné beneficial land use was at its most evolved just prior to captivity at Hwéeldi, Fort Sumner. After numerous deaths over five years, captives were allowed to return to a much diminished Diné Bikeyah, now called a reservation. Land once cultivated had remained vacant season after season, waiting for people to return. To this day, vacant land on the Navajo Nation is “held” as the customary land of a clan that will return. 

No. Under the 2016 tribal homesite lease regulations, individual-to-individual rentals are not authorized and private rental signs are prohibited. However, they may take place in the underground economy with no rights and no enforcements. Any reservation bed-and-breakfasts fall under this unregulated category. There is no regulated private rental market of any kind.

In 2023, the Navajo Land Department updated its publicly available website information to include comprehensive steps and forms for obtaining a homesite lease. Go to Navajo Land Department Homesites and Frequently Asked Questions. The applicable regulations are 2016 tribal homesite lease regulations.

No, not under the present tribal homesite lease regulations. 

No, not under present tribal lease and permit regulations covering all land uses, including homesites. There is a pressing need for this gap to be amended.  

No, not under the present 2016 tribal homesite lease regulations, which currently limits the homesite to one acre, one home, and one shed or ceremonial hogan.

Private mortgages guaranteed by land are not accessible. However, federal programs provide alternative guarantees or directly fund or lend. These programs include HUD which guarantees 100% of private mortgages pursued by Indian families, Indian Housing Authorities, and tribally designated entities to build or renovate single family housing, subject to BIA pre-qualification. (See  Section 184 of the Housing and Community Development Act of 1992, as amended by the Native American Assistance and Self-Determination Act of 1996 (NAHASDA) (12 U.S.C. 1715z-13a). Regulations are at 24 CFR part 1005. The Department of Veterans Affairs directly lends to native veterans living on trust or restricted land. 38 U.S.C. §§ 3761–3764 (2006). The USDA Rural Housing Service provides grants and loans to rural and reservation members without a decent, safe, and sanitary dwelling. 42 U.S.C. § 1471(c).

No, not under the present 2016 tribal homesite lease regulations. 

No, not under the present 2016 tribal homesite lease regulations. It must be emphasized that federal law does not generally prohibit livestock to be kept on homesite leases on tribal trust land. The only federal restraint comes from the Navajo-Hopi Settlement Act and applies only to relocatees who do not agree to relocate to the New Lands (Nahata Dził), along the Arizona part of the AZ-NM border.

No, not under the present 2016 tribal homesite lease regulations. Federal law also limits one homesite lease per tribal member. However, federal law provides an exception to customary and tribal law “tribal assignments” of community land, which is an option that the Navajo Nation has not fully pursued in planning the realities of family settlement life. Such realities involve primary and seasonal camps, and temporary work, school or military residential displacements. All such living arrangement at present are unregulated and informal. 

No, not under the present 2016 tribal homesite lease regulations. 

A great deal of Navajo Nation court land-use decisions address issues of land use permits in divorce. Homesite leases normally have remained in the name of the spouse to whom it was issued, while the caregiving spouse of children might be allowed to remain with the children until another homesite may be found and made habitable. 

According to the Navajo Nation, the current unemployment rate is 48.5 percent, and average household income is $8,240, well below the federal poverty guidelines. The major employers are tribal government, healthcare and schools. Young people often accuse older adults of sitting on existing jobs and refusing to make room for them. It sometimes feels like major intergenerational misunderstanding. Even if more jobs can be created, young people need housing, specifically they want homesites on which to raise their own families and continue the way of life, as well as ability to express ingenuity and creativity in land use, which is not possible at present.

So long as the Navajo Nation continues to maintain a legacy single use land lease and permit system held over from federal times, even establishing the system under Navajo Nation law in 2012, it will be very difficult for young people to settle here. Under this legacy system, each permit has to be used for single purposes until a tribal IRMP vision can be found that might envision integrated uses and collective stewardship-based ingenuity. There are presently no supports for ingenuity in combining land uses.  

Permanent settlement on Indian trust land is reserved for Native Americans. The Navajo Nation Code does allow the non-native widow or widower of a homesite leaseholder to continue occupying a homesite for life. Non-members may purchase very limited subdivision units on fee land. Otherwise, there is no regulated private rental market. 

Principle of “Use It or Lose It”

“Use it or lose it” is a uniquely Diné land use concept that exists in customary law and some tribal court decisions, and bears no similarity to “use it or lose it” clauses in western water settlement laws. The principle is that land must be stewarded and put to beneficial use. 

Lease and permit holders are locked into conditional single-purpose uses for which the lease and permit was issued. At present, uses may not be combined. 

A mobile home does not qualify as a farm building, and there has been at least one instance when a farm board has required a mobile home be removed or the permit holder be deemed non-compliant. 

While enforcement is different from chapter to chapter, and from land board to land board, the regulations prohibit arable land to be used for residential purposes. A loophole exists allowing homesites to be converted from portions of grazing permit land, which has resulted in numerous squats across rangeland. 

Permit law, traditional law, and Anglo law has become entangled to the extent that “use it or lose it” has given way to Anglo concepts of property ownership. Furthermore, there lacks baseline time and beneficial measures for non-use.

There is a widespread feeling that grazing permits, especially, have generational value because of a loophole that enables grazing permit portions to be converted to homesite leases. This is why off-reservation tribal members often fight hard to inherit permits upon decease of family members who pass without wills. 

The Navajo Nation Insurance Services Department directly provides coverage to certain LGA chapters and tribal enterprises. Very limited private companies otherwise provide private coverage. Insurance is limited due to issues of security (police, fire and lack of construction codes). Community-based locksmiths are next to none on the Navajo Nation, which require necessary locksmithing skills, state certification, background check and proper tools and equipment maintained in a secure facility. Carpentry business services with signage are also next to none. Otherwise, locksmith services via Navajo Nation facilities management are provided only for tribal governmental programs.

Only if individuals forming the cooperative already have existing individual land use permits which they are willing to pool in the name of the cooperative. Otherwise, a cooperative or collective is unable to obtain a farm or grazing permit in its own name. 

Conservation Plan Requirements

The purpose of a conservation plan is to identify goals and objectives and to prescribe specific management actions and conservation practices that address current resource concerns, and ensure sustainable and renewable forage and agricultural production.

For a grazing permit, a conservation plan is also important to modify range units, e.g., a conservation plan that includes the use of adjacent trust or non-trust rangelands not covered by the permit may allow for modification of the number of animals and/or season of use allowed on the permitted land. See 25 CFR 166.308.

Federal regulations call for conservation plans for agricultural leases and grazing permits:

Agricultural Leases

25 USC §162. 231 sets forth that “Appropriate stipulations or conservation plans must be developed and incorporated in all agricultural leases.” This regulation is intended to ensure the sustained use of renewable natural agricultural resources. 

This federal regulation applies only to leases, not farm permits, which may be independently issued by the Navajo Nation. This means that the Tribe may set its own requirements or even waive requirements for a conservation plan so long as other federal conditions for agricultural use are complied.

Grazing Permits

25 USC §166.312 makes this requirement for grazing permits: “A conservation plan must be developed for each permit with the permitee and approved by (the BIA) prior to the issuance of the permit. The conservation plan must be consistent with the tribe’s agricultural resource management plan (ARMP) and must address the permittee’s management objectives regarding animal husbandry and resource conservation. The conservation plan must cover the entire permit period and be reviewed by (the BIA) on an annual basis”. (At this time, the Navajo Nation does not have an ARMP).

25 USC §166.4 defines a conservation plan as “a statement of management objectives for grazing, including contract stipulations defining required uses, operations and improvements.”

A conservation plan considers the landowner’s and permittee’s management objectives, goals, and capabilities, if known, as well as prevailing economic conditions (commodity prices, production costs, etc.). Below are what should be included in a conservation plan: 

  • management goals and objectives;

  • land description for the management unit;

  • aerial photos or maps showing soil types, ecological sites, habitat types, and grazing capacity;

  • inventory of existing improvements that indicates condition, value, and improvement plans with cost estimates;

  • description of prescribed management and conservation practices and stipulations, if any; and

  • grazing capacity and season of use for pasture leases.

An Agricultural Resource Management Plan (ARMP) is more than a conservation plan. It is essentially an integrated resource management plan (IRMP) that places agricultural land use front and center and calls upon the Tribe and community to approach holistic planning, not only of resources, but of cultural and social processes. IRMP processes link the natural environment and social realities, creating resource policies that support the ecosystem and community’s cultural, economic, and social goals. So, ARMPs include conservation, but are much broader in scope. 

ARMPs are referenced in 25 USC §166.312 and defined in 25 USC § 166.4). The ARMP “means a ten-year plan developed through the public review process specifying the tribal management goals and objectives developed for tribal agricultural and grazing resources. Plans developed under AIARMA will govern the management and administration of Indian agricultural lands by the BIA and Indian tribal governments.”

Federal regulations at 25 CFR 166.311 state that conservation plans must be consistent with the Tribe’s ARMP and/or IRMP, if such an ARMP or IRMP exists.

The USDA provides assistance in completing a plan, but will first need you to provide soil samples and obtain specific land survey and record information from the BIA. Go to USDA Natural Resources Conservation Service (NRCS), and find and reach out to a local service center in your area. An NRCS service officer will assist you. 

From time to time, the Navajo Nation may also provide assistance, subject to availability of funds and filled positions designated for conservation planning, which are normally grant-funded for limited time periods. 

Below are steps performed by the BIA Agricultural & Range program office staff to develop a conservation plan:

1)  Receives notification from BIA Division of Real Estate Services staff that a conservation plan needs to be developed for an agricultural lease.

  • Notification should be made a year in advance of a proposed agricultural lease.

  • The proposed lease(s) may include an expiring agricultural lease, or a new lease proposed for lands currently not leased.

  • BIA encourages landowners/permittees to use USDA programs to promote conservation and maintain crop bases on Indian land. BIA approval is required when trust land is encumbered for conservation practices, whether prescribed by the USDA Natural Resources Conservation Service (NRCS), BIA, a Tribe, or others (see 25 CFR 166.314). Note: The NRCS and other agencies may be unaware of this requirement because their review/approval process may include only the Conservation District Board, and not BIA. A MOU can be helpful in establishing local processes for dealing with the requirement for BIA approval.

2)  Gather information necessary to complete the plan.

  • Conservation plans are specific to the land use, management unit, and term/duration covered by a lease.

  • Assemble or collect baseline natural resources information and relevant historical data for the lease area. This includes a review of previous conservation plans, compliance inspections, and on-site assessments to determine current resource conditions and needs.

  • If a lease contains more than one tract, calculate and assign grazing capacity for each tract. This step is necessary when income must be assigned to specific allotments/tracts.

  • Provide an opportunity for the lessee to discuss the management goals and objectives with agriculture management staff.

3)  Draft the conservation plan based on soil, ecological, cultural, and environmental information that considers past usage, topography, adjacent land use, and proposed use.

  • Develop a draft plan that is aligned with the Tribe’s ARMP, if available, and within the capabilities of the permittee/lessee.

  • Identify resource protection and management needs with input from resource specialists.

  • The plan should include or reference:

    1. management goals and objectives;

    2. land description for the management unit;

    3. aerial photos or maps showing soil types, ecological sites, habitat types, and grazing capacity;

    4. inventory of existing improvements that indicates condition, value, and improvement plans with cost estimates;

    5. description of prescribed management and conservation practices and stipulations, if any;

    6. grazing capacity and season of use for pasture leases; and

    7. conservation stipulations that are pertinent to the site-specific conservation needs, and the conditions pertinent to the lessee’s use activities.

4)  Finalize the conservation plan and conservation stipulations/provisions. i.e. ensure that the potential lessee acknowledges the terms of the conservation plan.

5)  Forward the conservation plan to the appropriate BIA Division of Real Estate Services office to have the plan included as a required part of the lease.

  • The lease approval process is the responsibility of the Real Estate Services program. The Real Estate Specialist ensures that conservation plans are incorporated into all agricultural leases.

  • The lease must make specific reference to the conservation plan and state that all provisions require lessee compliance.

  • Copies are retained in the BIA regional Natural Resources Office.

  • Copies of the conservation plan are provided to the landowners, if requested.

6)  Agriculture Specialists monitor land use for conformance with the plan.

  • Monitor resource conditions.

  • Keep records of contacts with the lessees.

7)  BIA conservation plan developers assist BIA Agriculture Specialists with amending the conservation plan as needed.

  • The lessee or landowner may have management goals they need conservation plan developers to have incorporated in a revised conservation plan.

  • Refer proposed amendments to the BIA Division of Real Estate Services office to secure consent from the lessee. The Line Officer reviews and approves the lease amendment. The amendment must contain the revised conservation plan.