Possibilities for Stewardship
This page continues to be developed with the assistance of law students.
Tribal Authority to Design Diné Land Stewardship
Authority to Independently Contract Under Tribal Law & Custom
Tribes may independently make decisions on contracts expressly listed at 25 C.F.R. § 84.004, which include the right to make instrumentalities created under tribal law or custom.
Tribal “Assignments” and Other Instrumentalities
25 CFR Part 162 Subpart A § 162.006 allows “tribal land assignments and similar instruments authorizing uses of tribal land which are covered by tribal laws” to be excepted from lease and permit regulations. (“Assignments” here is a loose term that may be taken to mean instruments of land use that a tribe may invent, that do not yet exist in the colonized system. The instrumentalities need only be enacted in tribal law, and need not be based on custom). Historically a settlement-oriented tribe with no individual land ownership, tribal assignments have potential to provide large stewardship-settlement tracts combining homes, businesses and agriculture. Costly and difficult conservation plans that are done on individual permittee basis now each time a permit changes hands could be planned more widely and permanently. The traditional Diné approach to land stewardship by groups can be given official tribal sovereign support through innovation of new models that spring from existing federal encouragements.
Temporary Conveyances to Tribal Members
25 C.F.R. § 84.004(d) empowers tribes to independently “convey to tribal members any rights for temporary use of tribal lands . . . in accordance with tribal laws or custom.” Such “conveyances” need only contain some condition to show that the land is not privatized, and by no means exclude communal, cooperative, kinship or other kinds of cultural stewardships.
Authority to Envision Integrated Land Uses
The 1988 BIA Integrated Resource Management Planning (IRMP) Initiative expressed through its Indian Affairs Manual and IRMP Guidelines, encourages each tribe to assert its own cultural imperatives and envision unique flexible, self-renewing, and multi-use management approaches that encompass natural, cultural, economic and social resources according to the tribal community vision for the future.
In 2019, the BIA-Navajo Region received $2,618,330.68 from BIA Central Office to implement an Agricultural Resource Management Plan (ARMP) on the Navajo Nation reservation-wide that must support a tribal vision. In support of a tribe’s vision through an ARMP, conflicting regulations may be waived in agriculture and conservation.
IRMPs and ARMPs encourage tribes themselves to create balance through whole systems that include management participation of tribal members. However, the Navajo Nation continues to lack an encompassing tribal vision on what the reservation will look like for future generations, nor has it envisioned specific government and land use structures that support Diné ways of life. The Tribe’s inherent powers as a sovereign, recognized by the federal government and federal statutes, enables it to do so.
Authority to Elevate Traditional Ecological Knowledge
A November 2021 Presidential Memorandum (Nov 15, 2021) aspires that indigenous traditional ecological knowledge (TEK) inform all federal agency decision-making, elevating TEK to the same level as scientific inquiry. The memorandum describes TEK as “responsible stewardship of natural resources through relationships between humans and environmental systems, applied to phenomena across biological, physical, cultural and spiritual systems.” Without compromising its core functions, traditional land stewardship can be given modern life. Planned with vision, tribal assignments can give birth to a true stewardship model, one that may fill the existing resource gap in local conservation and resource management and restore the Diné way of life.
Restraints on Tribal Trust Land Authority
Restraint on contracting unless excepted
Tribes need federal approval on contracts that are not expressly listed at 25 C.F.R. § 84.004.
Navajo Nation Self-Restraint – Leases and permits chosen by Tribe as sole option without considering other instrumentalities and exceptions
Under the Indian Long Term Leasing Act of 1955 at 25 U.S.C. § 415(h), a system of leases and permits may be used by tribes for the management of land for agricultural, business, renewable energy, public purpose, religious, educational, recreational, and residential purposes. In 2000, the Navajo Leasing Act extended to the Navajo Nation the option of self-managing such leases, but without any federal funding. In pursuit of tribal sovereignty, the Navajo Nation chose to do so after voluntarily adopting tribal leasing regulations that are “consistent” with current federal leasing regulations at 25 C.F.R. part 162 and obtaining approval of those tribal regulations by the Secretary of the Interior. For an unexplained reason, the Navajo Nation has made leases and permits the sole option on the reservation, even for community tribal members, without necessity to do so.
Leases and permits are not the sole land use management method for tribes under federal laws. The individually-issued lease and permit system was originally designed to limit the footprint of human beings on federal public lands, not for permanent tribal communities. However, the Navajo Nation has used the lease and permit system exclusively without distinguishing when they are mandated, and when they may be dispensed with. There are many exceptions, including land agreements under tribal law and custom. For immediate reference, see 25 C.F.R. Part 162 (leases and permits); § 162.005 (when they are needed); § 162.006 (when they are excepted).
Please see The HEARTH Act of 2012 and the Navajo Leasing Act of 2000: Financial and Self-Determination Issues.
Restraint against Privatization
Tribes may not give land title to tribal members outright. The 1834 Non-Intercourse Act (25 U.S.C. §177), still in full force, forbids tribes from conveying land title to anyone without ratification of Congress. Under 25 C.F.R. § 84.004(d), the instrumentation must be “temporary” which simply means the tribe must include some kind of conditions that would show that the land is not privatized.
Restraint Against “Encumbrances” of 7 Years or More
25 U.S.C. § 81 (as amended 2000) requires that the BIA must give its approval for any contract that encumbers land for 7 years or more. There is little agreement as to what an encumbrance of Indian land means. Off-reservation, the term means allowing a third party, like a bank, to have claims on a property that restrict full control, or the property can be seized. Some conservation easements may be encumbrances; but economic use restrictions and a right to enter to retrieve personal property may not be.
Restraint against running livestock on Navajo Nation rangeland without a grazing permit
Since the Great Dust Bowl of the 1930s, the federal government has strictly regulated grazing on all public lands. The effect of grazing regulations on Navajo Nation tribal communities are profound. The federal Navajo Grazing Regulations (25 C.F.R. § 167) requires issuance of grazing permits for all livestock that feed on Navajo Nation rangeland. Section 167.8(c) limits individually-held grazing permits to only one district, but does not limit the number of permits that nay be held by any individual within that district. See also Navajo Partitioned Lands Grazing Regulations, 25 CFR 161 added in 2005. Permits are otherwise not required for other community surface land uses.
Restraints created by Acts of Congress incrementally
As Congress has added to the Navajo Nation land base incrementally over time, it has each time often imposed specific special conditions on the new land bases. Please read more at our Land Base Formation, Navajo Nation page.
Alternatives to leases and permits used by other tribes
Duck Valley Reservation, Nevada (1961)
For tribal member homesites and farms, the Shoshone-Paiute Tribes of the Duck Valley Reservation rejected the lease and permit system. They opted for a simplified “tribal assignment” solution separate from the federal trust regulatory system. Their solution allows its community to define itself, provides for individual and flexible community-benefit income options, and distributes large enough tract sizes to encompass family settlements and income-generating farming.
In 1961, its Business Council made ordinances that bypass leases, permits and federal approvals, and provide for Homesite and Agricultural Assignments for its tribal members, with the below very simplified requirements:
- Self-defined domestic unit. “Family” may self-define itself so long as it is a single domestic group living together and dependent on someone considered a head of family.
- Use Requirement. A “Standard Homesite Assignment” on tracts up to 5 acres may last a full life so long as it is used.
- Cancellation and Reassignment. Assignments abandoned for 2 years may be reassigned to a tribal member in need. Otherwise when a head of family dies, the Assignment is simply canceled, then reassigned according to the decedent’s written preference, or to the surviving spouse with minor children; or by probate when there is none of the above.
- May be Rented to Others. If an Assignee needs to leave the reservation for a justifiable reason such as military service, making a living, education or medical treatment, the homesite may be rented to others for up to 5 years.
- Agricultural Assignments. Duck Valley provides for Agricultural Assignments of up to 40 acres that last as long as they are used.
- Community Income from Unassigned Land. The Shoshone-Paiute Tribes’ Land Code otherwise provides for leases and permits in other cases, and also for the Tribe to create community income from lands that are neither assigned or leased. The reservation, on the border of Idaho and Nevada, consists of a total of 289,820 acres.
Alternatives to leases and permits used by other tribes
Chemehuevi Indian Tribe of the Chemehuevi Reservation
In the 1940s, the 10-mile valley floor of the 32,000 acre Chemehuevi reservation in San Bernadino County, California was condemned by the federal government in order to construct Parker Dam and Lake Havasu. The lovely valley, with sheer walls 420′ high, had been home to all its members, who now dispersed to Phoenix and other southern California cities. When flooding subsided, the Tribe reconstituted its government and began innovating instrumentalities that would encourage its dispersed members to come home. (The highly restrictive lease and permit system was a discouragement and would not do). In 2001, the Tribe began its experiment with “Assignment Deeds,” which gifted members with 5-acre parcels as close to privatization as federal law would allow. Proactively, the Tribe sought to push the limits of privatization that “tribal assignments” could accomplish for its members. The Tribe took the question first to the BIA Regional Director, then to the Interior Board of Appeals, the California District Court, and finally to the Ninth Circuit Court of Appeals in 2014 which gave some regretful clarification that Congressional laws almost 200 years old continue to prohibit tribes from assigning land in any manner that looks like fee simple ownership. (Alaska, Arizona (within which 2/3 of the Navajo Nation is located), California, Guam and Hawai’i are 9th Circuit states).
The 9th Circuit noted that the Tribe had “taken reasonable steps to return its members to the reservation and restore the Tribe,” but “the Tribe’s future lay in Congress, not the courts.” Since then, the Chemehuevi Tribe has amended its ordinance, and continues to assign parceled subdivisions that are surveyed and recorded by the Tribe. The present ordinance imposes limited conditions, and adds a right for tribal members to approach the federal government individually for approval of their Assignment Deeds. More than 80 parcels have now been filled, constructed and built upon by returned tribal members. The Chemehuevi Tribe continues pushing against federal limitations in other areas of tribal governance through litigation in California courts.
(It was noted in a phone call from the Tribe to one of our project researchers that Chemehuevi is, unlike the Navajo Nation, reversing dispersal and intently focused on restoring its physical community rather than pushing limits on traditional cultural governance.)
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.
