The case for transferring federal lands back to Native Americans

The case for transferring federal lands back to Native Americans
© Greg Nash

A proposal by Sen. Steve DainesSteven (Steve) David DainesHouse punts on FISA, votes to begin negotiations with Senate House cancels planned Thursday vote on FISA Pelosi pulls vote on FISA bill after Trump veto threat MORE (R-Mont.) to transfer the National Bison Range – 18,800 acres – to the Confederated Salish and Kootenai Tribes (CSKT) has run into opposition on the grounds that it is simply another part of the Republican Party’s federal land “give away” program. Such claims are nonsense.

Start with the fact that the 18,800 acres were a tiny part of 22 million acres that were once the territory of Flathead Indians, as they were called by the European immigrants. Under the Hellgate Treaty of 1855, the Flathead tribes ceded over 20 million acres to the federal government and were left with a 1.3 million-acre reservation. Then in 1908, Teddy Roosevelt created the National Bison Refuge out of grazing land purchased from the CSKT for $807,000 (today’s dollars).

The term “Indian giver” comes to mind. In the early years of contact, Europeans viewed gifts from generous Native Americans as gifts, while the Indians saw this as an exchange for which they expected something in return. Seen in terms of original territory of the Flathead tribes, Daines’ proposal to transfer the land to the Indians seems more like a give-back than a give-away. Moreover, if the transfer happens, the land will still be under the trusteeship of the Bureau of Indian Affairs.

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Most of the opposition to the transfer comes from Public Employees for Environmental Responsibility (PEER). It filed a lawsuit in 2016 to stop then interior secretary, Ryan ZinkeRyan Keith ZinkeTrump official violated ethics rules in seeking EPA job for relative, watchdog finds Killing bear cubs and wolf pups in their dens on National Park Service lands in Alaska is wrong Overnight Energy: Biden campaign says he would revoke Keystone XL permit | EPA emails reveal talks between Trump officials, chemical group before 2017 settlement | Tensions emerge on Natural Resources panel over virtual meetings MORE, from transferring the land to the CSKT. PEER mainly contended that Zinke’s proposal did not follow administrative procedures, but Senior Counsel Paula Dinerstein also complained that bison management “would be difficult to do if it weren’t part of the refuge system.” In other words, Indians would not know how to manage bison as well as bureaucrats. Then, in her next breath Dinerstein admitted that “The Bison Range has been pretty sorely neglected.”

It is useful to compare how well the CSKT manage their timber lands with the federal government. Since taking control of forest management on the Flathead Reservation in 1988, CSKT have earned more than $2 for every $1 spent compared to the U.S. Forest Service simply breaking even. Moreover, CSKT lands had better species and age distribution of trees, making them less prone to wildfires, better wildlife habitat and better water quality. As law professor and tribal member Robert Miller points out in his book “Reservation Capitalism,” “tribes are making profits and creating economic development and jobs from their forests and they are striving to preserve their ecosystems and sustainable growth for years to come.” CSKT could do the same with the National Bison Refuge. 

The case for transferring other federal lands to Indian tribes applies to national monuments. In early February, the Trump administration finalized its plan to downsize Bears Ears National Monument by more than 1 million acres and open them to grazing and mineral development. Instead, it should have transferred Bears Ears to the tribes who claim it as part of their heritage. 

Just as CSKT have demonstrated with timber management, the Navajo Nation has shown that it is fully capable of managing cultural sites. Canyon de Chelly National Monument is owned by the tribe, held in trust by the federal government and managed cooperatively by the tribe and the National Park Service. Hence, “administration of the park requires the National Park Service and the Navajo Nation to work together to protect and preserve the park resources.” 

Following the Daines proposal, Trump should have given Bears Ears to the Bears Ears Inter-Tribal Coalition (the Hopi, Navajo, Ute Mountain Ute, Zuni, and Ute Indian Tribes). Surely those tribes can do as well or better than federal agencies at determining what is best for Native American cultural assets.

Opposing tribal land management harkens back to the Burke Act of 1906 that locked Indian lands into the trusteeship of the federal government until and unless the government ordains Indians to be “competent and capable.” To this day those words underpin federal Indian law. Transferring federal lands back to Native Americans would be a good first step toward expunging that racist notion from our national policies. 

Terry L. Anderson is the John and Jean DeNault Senior Fellow at the Hoover Institution.