Washington’s Department of Natural Resources manages over 100,000 acres inside the border of the Yakama Nation. The lands are held in trust and managed to provide revenue for the state’s K-12 schools and prisons. A new investigation from High Country News and Grist found that nearly 2 million acres of state trust lands lie within the borders of 83 federally recognized Indian reservations. Anna V. Smith, associate editor of High Country News, joins us with more on the investigation.
The following transcript was created by a computer and edited by a volunteer:
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Washington’s Department of Natural Resources manages over 100,000 acres that are inside the border of the Yakama Nation. Revenue from that land goes not to the sovereign nation but to state coffers. It’s spent on Washington’s K-12 schools and on prisons. And Washington is not alone. A new investigation from High Country News and Grist found that there are state trust lands within the borders of 83 federally recognized Indian reservations. Anna V. Smith is the associate editor of High Country News, she joins us now to talk about this. Welcome back to the show.
Anna V. Smith: Hey Dave, thanks for having me.
Miller: What does it mean for land to be inside the boundaries of federally recognized Indian reservations to be “trust land”?
Smith: The first thing to understand is that land ownership within tribal reservations is really complicated. Because of federal policy and laws by Congress, tribes often don’t own all of the land within their reservations. For some tribes that looks like about half of the land, or other tribes even as low as 10%. So that looks like a combination of ownership between the tribe, the state, federal governments, and privately owned lands. That can really mean a patchwork that can make it harder for tribes to manage their own reservations.
Miller: I mentioned that there are 100,000 acres within the border of the Yakama Nation alone in Washington State. Can you give us a nationwide sense for how much land we’re talking about in these state trusts?
Smith: For this story, we found that 10 states own 1.5 million acres of surface and subsurface lands within those reservations. As you noted earlier, this was a story in collaboration with Grist, a climate justice news organization. And they’re also doing a larger project that looks at how public universities specifically benefit from the state trust lands. So I also highly recommend checking that out as well.
Miller: So 1.5 million acres in surface and subsurface state trust lands. What does subsurface mean in this context?
Smith: Subsurface just means underneath the surface. So that includes minerals or oil and gas, and anything like that that might be found there.
Miller: What do states do on these lands?
Smith: So there’s a range of activities. I just mentioned oil and gas and minerals. The mandate for state trust lands is to make money for public institutions, like you mentioned: public schools, universities, or penitentiaries. And that can look like extractive industries such as oil and gas or timber. But it can also look like leasing the land out for something like grazing or commercial leases or even rights of way.
Miller: Do tribal governments have any control over how these trust lands are managed? You mentioned some things that can be very dirty, can be very disruptive to the land all around them.
Smith: Not legally, no. In some cases, states do consult with tribes about activities on those lands. So you mentioned the Washington Department of Natural Resources. When we spoke with them, they said that they do consult with the Yakama Nation about the activities on those lands. But officials from other tribes that we spoke with in other states said that they don’t have that opportunity, and that there is just simply not a lot of transparency there.
Miller: How did it happen that 1.5 million acres of land inside federally recognized tribal nation reservations is owned by states?
Smith: So that was the big question that we had going into this. We could see from the data that states own land on these lands, and we wanted to figure out, how did they get there? So to explain that we have to do a little bit of a history lesson. When states entered the Union initially, they got millions of these state trust lands to help them make money and kind of get established. But tribal reservations were explicitly excluded from those land grants. So it didn’t happen then.
Instead, we found that it often had to do with the Allotment Era, which started around 1887. And for those listeners who aren’t familiar with that era, basically some members of Congress argued that the reservation system wasn’t working, and that Congress should force individual property ownership on tribal members, and essentially tried to break up the reservations. So after individual tribal members were assigned an acreage, and that varied, sometimes 160 acres each, then the rest of the reservation was open to non-Native settlers.
And obviously, this policy was absolutely devastating. Over the span of about 50 years, I think it was something like 90 million acres of land was taken out of tribal hands nationwide. And so it was legislation from this period that we found states were taking a cut as well. And we saw somewhat of a pattern of tribes reservations being created, then a state would enter the union, and then after that is often when a tribe’s reservation would be allotted. And one of the people that we quote in the piece called it “conquest by law,” which I think pretty much sums it up.
Miller: So just to understand this, some individual tribal members got some land. But that came at the expense of sovereign Indigenous nations?
Smith: Yeah, that’s correct. As I mentioned, it was an attempt to make it private property instead of this more communally-owned reservation. And also just to note, there wasn’t necessarily the same tribal government structures then as there are today. That came a little bit later in the 1930s. And a lot of tribal nations on one reservation are actually multiple bands or tribes, each with unique histories and cultures, that then figure out how to work together. So with that in mind, you can see how Congress’s decision to allot that land came at a really vulnerable time, which I think gets to the crux of why it’s so unjust that the state lands are on reservations to begin with. Tribes did not give their free prior and informed consent for that to happen. And I think it’s also important to note that it’s not just something from the past. This is an ongoing dispossession that has ongoing impacts on the tribe’s ability to manage their reservations today.
Miller: Just to zero in one example that’s actually close to us here in the Pacific Northwest, what happened with the Yakama Nation?
Smith: The Yakama Nation is a little bit of a different example than what I mentioned earlier of how these lands ended up on reservations, and it has to do with a border dispute. Essentially, right after the Yakama Nation ceded over 12 million acres of ancestral lands through treaty, the map that determined their new reservation was lost, it was misfiled. So there was an area that was disputed for about a century with the reservation, even though the map was found in the 1930s. And it wasn’t until a court case a few years ago that said that the area was indeed a part of the reservation. But during all those intervening years, the state had established trust land on that contested area. And so they’re still there today.
Miller: You note that despite the fact that we’re talking about more than 1.5 million surface and subsurface state land trust acres within the borders of Indian reservations, that many longtime policymakers and leaders on Indigenous issues that you talked to were unfamiliar with this history. How do you explain that?
Smith: That’s a great question, and it’s one that we had too. 1.5 million acres is a big number cumulatively, but it’s spread out over 83 different tribal reservations. And so I think the answer to that is, for some tribes, it may not amount to very much land and thus might not be a big priority for their individual circumstances.
But I also think that there’s not a clear idea about what to do about it, unless the state puts the land up for sale. Relationships between states and tribal nations are pretty complicated and in some cases, are pretty strained. So there might not be open communication about what’s going on with those lands and their future. There’s a lot of expertise and knowledge about the role of the federal government in upholding treaty responsibilities with tribes. But when it comes to the states, it’s just much more inconsistent.
Miller: And meanwhile, states, as I mentioned in the beginning, get money from say leases on these lands, or various extractive activities for so many things: K-12 schools, universities, prisons. Do they have any incentive to give this land up, to give this land back?
Smith: No, they really don’t. As I mentioned earlier, they are legally mandated to make money off of them. So unless the state legislature gets involved, I don’t know that it would be an easy thing to transfer the land back to tribes. In some cases, if a state trust land parcel isn’t making enough money, a state might decide to sell it. And so in the piece, we include the example of the Ute Tribe, which tried to buy back 28,000 acres of state land for $47 million just a few years ago. And they were the highest bidder, but the state decided to suspend the sale and didn’t really explain why. And then a whistleblower came out just like a year later and alleged that the state had hoped that its Department of Natural Resources would buy the land instead of the tribe. So the tribe has since sued over the sale, and now the Utah State legislature is about to vote on a law saying that if the state wants to sell state trust land, that the Department of Natural Resources should get right of first refusal, which could effectively keep these lands from being bought by the tribe in the future.
So that’s just an example of how difficult it can be for a tribe to get these lands back from states, even when trying to pay millions of dollars for them.
Miller: Are there any mechanisms for returning land to tribes?
Smith: There’s no systemic mechanism. The Biden administration’s policy is to help tribes consolidate their homelands. But these are of course state lands that we’re talking about, not federal. We did find one example of this happening. And it took the feds, the state, and the tribe all working together. So the Confederated Salish and Kootenai Tribes in Montana were heavily impacted by allotment. And at this point, they now own about 60% of the reservation again. Just a few years ago, they had a water right settlement that passed Congress. That legislation cleared the way for about 30,000 acres of state trust land on the reservation to return to the tribe. In exchange, the state will get federal land elsewhere in the state. So it’s a pretty unique arrangement, and it seems like it could be hard to replicate. But it does at least show that there is a way to get it done on a large scale if the will is there to make it happen.
Miller: Anna, thanks very much.
Smith: Thanks so much, Dave.
Miller: Anna V. Smith is the associate editor of High Country News.
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