The lower 48 States of America is made up of around 1.9 billion acres of land. From 1776 to 1887, the U.S. government seized over 1.5 billion of those acres from Native American ownership by conquest, treatises, and purchase. Since then, Native Americans have continued to lose land, but in a different way.

A 2016 journal article by Rebekah Martin from the American Indian Law Review critiques the recent Cobell Buy-Back program as a means of reclaiming Native lands. It is important to note that this article was written before the start of the Trump administration—there are threats to the outcomes of this program since this piece was published.

The Cobell Buy-Back Program stemmed from a 1996 lawsuit against the Department of the Interior; it was accused of mismanaging Native land trusts and funds. After a lengthy legal battle, the Cobell settlement, which led to the buy-back program, became the most recent solution to modern Native land loss.

The $3.4 billion Cobell settlement passed in Congress in 2010 promised $1.9 billion in Trust Land Consolidation. This means that over a 10-year period ending in 2022, there is a multi-billion dollar fund devoted to reforming fractionated land for Native American tribes.

Fractionation developed in tandem with assimilation policy. The Dawes Act of 1887 assigned native tribes of America to designated land plots, separating tribes from their traditional lands and forcing them to assimilate to western culture. All allotted lands were owned and controlled by the Department of the Interior, and land transfers went through the Secretary of the Interior. The Department of the Interior’s land inheritance system led to fractionation.

Simple Fractionation Diagram

Fractionation of land ownership refers to the federally-controlled transfer of land from an owner to all descendants in equal parts. Since the Dawes Act, one piece of allotted land might have over 1,000 heirs claiming ownership of the land, some non-Native, with shares growing exponentially smaller each generation. With too many owner claims, tribes posit that use of the land—cultural, agricultural, religious, or otherwise—is essentially impossible.

Though the Dawes Act was over a century ago, there have only been a few movements to address this problem—one in the 1930s, the 1980s, and early 2000s. Each attempt had some benefits, but they largely failed to ease fractionation. Most were overgeneralized policy for a large range of unique tribes with limited interaction with Native leaders and governments.

Table 1. Major Federal Land Legislation since 1887

The Cobell program aims to pay heirs to turn over their land holdings to tribal nations to form larger tracts of Native-owned land. The mission of the program is to, “allow individuals to receive monetary benefit from their land and allow the tribes to retain ownership of land as a whole,” explains Martin. Consolidated land allows tribes to reconnect with culturally important lands and have autonomy over land use.

However, this program has drawbacks. There is a noted lack of trust in the U.S. government due to a history of forced land seizures, poor legislation, and the trust ownership system—tribes today are wary government collaboration. More recently, President Trump has cut back on tribal aid, and has no plan to continue this program after 2022.

Moreover, the process of buying and selling land under the settlement has a limited time-frame before the Department of the Interior will claim the land. Plus, at the end of the 10-year Cobell program, all remaining money will return to the U.S. Treasury. Martin writes that this looming government control hinders progress and patronizes tribes.

Even so, this program has been successful. By September 2016, the Department of the Interior was working with 25 tribes and had bought more than 850,000 acres of land for tribal ownership. The program also raised $30 million towards an education scholarship fund, and  increased social programs to assist tribes with ownership rights.

Martin ends her critiques on the Cobell Buy-Back program with  suggestions about future solutions that the Cobell program does not cover.  She writes that while unlikely, the best solution would be “to remove the U.S government from its role as a trustee entirely, allowing indigenous landowners and tribes to finally obtain actual independence and autonomy”.

The Cobell program has been effective thus far, with land sales and scholarship funds far surpassing expectation. However, this program isn’t perfect; and unluckily, the strides made under the Obama administration will likely not be continued under Trump. In her article, Martin ends with a message of hope—and hopefully, the success of the Cobell program will help to drive further successes, even under an ever-difficult government system and conservative administrators. If Trump works against funding or tribal aid, it may just be time for protests, campaigns, and more federal lawsuits. The administration needs to know that this success is just the beginning.

Fractionation diagram source: http://www.srstbuyback.com/fractionation.html

Featured image source: http://users.humboldt.edu/ogayle/land_transfers.jpg