Abstract

Excerpted From: John D. Leshy, Public Lands and Native Americans: A Guide to Current Issues, 47 Public Land & Resources Law Review 1 (2024) (131 Footnotes) (Full Document)

America's more than 600 million acres of public lands, shown on this map, comprise, as a congressionally-established blue-ribbon commission titled its comprehensive report more than a half-century ago, “One-Third of the Nation's Land.” Almost all are in the care of four governmental agencies--the National Park Service, the U.S. Fish & Wildlife Service, the U.S. Forest Service, and the Bureau of Land Management. These forests, deserts, plains, mountains, wetlands, and shorelines are generally open to all and managed mainly for environmental conservation, recreation, and education. Opinion polls consistently show they are revered by most Americans across the political spectrum, which is why I called them a political success story in my keynote address to the 40 annual Public Land Law Conference.

Like all lands now found in the United States, they once belonged to Indigenous Peoples, who were dispossessed from nearly all of them over the four centuries following Columbus's landing in the Americas in 1492.

Especially in recent years, Native entities who have maintained strong cultural ties to places on public lands have sought greater consideration of these connections. This movement may be grouped into three somewhat overlapping categories. The first encompasses campaigns calling for the U.S. government to strengthen protections for particular public lands. This can be done by Congress, through legislation to establish protected areas like national parks, or by executive action, as when presidents use authority Congress provided in the Antiquities Act of 1906 to establish national monuments. The second category is where Native entities seek to become directly involved in the U.S. government's administration of these lands--often called “co- stewardship” or “co-management.” The third category is where Native entities seek to obtain a legal ownership interest in particular public lands--often called “land back.” Each of these is explored in more detail below.

I have long been involved in such matters, especially while serving in the Interior Department in the Carter and Clinton Administrations. My federal service, which also included a stint as special counsel to the Chair of the Natural Resources Committee of the U.S. House of Representatives in 1992-93, has allowed me to closely observe how the legislative process operates in this context. Finally, for many years I taught Federal Indian Law and Public Land Law and have co-authored several editions of a federal public land and resources law text.

My objective in this essay is to draw on that experience and provide an overview of key policy issues raised by this modern political movement. I do not seek to suggest what a just or sound outcome should be on these issues. Instead, I focus on the process by which they will be decided and the factors that bear on their resolution. Along the way, I will address the real-world challenges the movement poses to Native entities, federal policymakers, and public land managers.

Let me begin with a caveat: the history of Indigenous peoples in relation to America's public lands is both complicated and highly variable from place to place, making generalizations about such matters somewhat hazardous.

[. . .]

The public lands offer many opportunities for broadening cross-cultural understandings, redressing past injustices, and healing societal wounds. Considered against the long sweep of history, in recent decades Native Americans have made numerous important advances to protect their interests in lands that are now in public ownership. The president's recent use of the Antiquities Act is just the most prominent example.

Other such campaigns supporting more protection for more public lands, aimed at both executive and legislative branch decisionmakers, are underway. Even more are likely in the future. Co-stewardship will likely be a part of many such efforts. As all this shows, Native American influence is being felt as never before in decision-making regarding public lands. The appointment of Deb Haaland as Secretary of the Interior--the first Native American to lead a cabinet department--underscores this trend.

But progress on “land-back” and advancing co-stewardship at the ground level will likely not come as fast as many advocates want. Given the complications and complexities I have described, in many cases it could require much discussion, negotiation and deliberation. That could test the patience of advocates and tempt them to pursue swifter and more generic solutions.

In this connection, it is worth considering, as a kind of cautionary tale, what happened recently in Australia. Indigenous Australians inhabited that continent for an estimated 65,000 years before the British arrived in 1770 and thereafter dispossessed them from nearly all of the continent's land. Australian law gave little recognition to Indigenous Australians until the early 1980s, when some limited progress began to be made toward redressing past injustices. Today Indigenous peoples make up about 4% of Australia's population, a somewhat higher percentage than in the United States.

In October 2023, a proposed constitutional amendment was put before the nation's voters that would have established a body called the Voice to address proposed policies that affect Indigenous Australians. Although the role of the Voice was to be advisory only, the campaign leading up to the election revealed deep fissures in the electorate. Supporters, including Prime Minister Anthony Albanese, saw the measure as a step toward healing that would lead to better legislation to address the needs of Indigenous people. Opponents, who included some prominent Indigenous Australians, asserted that it would be divisive and ineffective. The proposal was rejected by a 60-40 margin. Every state and territory except the National Capital Territory (comparable to our District of Columbia) voted decisively against it.

While Indigenous Australians have made significant advances in recent years regarding management of specific lands, the result of the national referendum was a powerful reminder that--to invert a saying often invoked by Martin Luther King, Jr.--while the arc of the moral universe bends toward justice, it can be long.

Emeritus Professor, University of California College of the Law San Francisco, former Solicitor, U.S. Department of the Interior, 1993-2001, and Associate Solicitor, 1977-80.