Consider the highlights--or lowlights--of Interior's latest "plan" for Indian land "buy back." First, "the program will exclude reservations east of the Mississippi and in Alaska" according to Interior's appraisers. In addition, Western states with high concentrations of Indian lands, most notably California, are not on Interior's priority list for federal buy back funding.
Second, according to Interior's latest plan, "once fair market value determinations have been made, the Department will mail offer packages to individuals with ownership interests in those valued tracts and seek to acquire those interests that individuals are willing to sell."
In other words, Interior expresses no intention of consulting in person with individual Indian landowners to ensure they understand the proposed purchase and sale transaction. That despite a clear ruling in Cobell v. Norton, 225 F.R.D. 41, 45 (D.D.C. 2004) that such sales "require communication between individual Indian trust-land owners and agents of Interior.” Mass mailings are simply not the communication or consultation that is required to cause Indians to fully understand the consequences of signing boilerplate papers that will cause them to cede their ancestral lands.
Third, nowhere in the plan does Interior "respond to concerns about the conflict of interest it will face during either voluntary or forced sale—meaning how it will simultaneously fulfill its trust responsibility to both a tribal government buyer and a tribal member seller."
Indeed: "On the issue of fair market value alone, that conflict cannot be avoided. Even a willing member seller will want the purchase price to be as high as possible, while both the tribal buyer and Interior will want the price to be lower, in the interest of spreading as far as possible the $1.55 billion allocated for land consolidation." So much for the federal trust responsibility owed to tribal members, or the so-called "lessons learned" from Cobell.
Finally, Interior continues to feign that "the Buy-Back Program is strictly voluntary." It is not. As Buried towards the end of the plan is this cryptic disclaimer: "Under the terms of the Settlement and the Claims Resolution Act of 2010, all sales are voluntary...The Department has no control over the prerogatives of sovereign tribal nations to exercise whatever rights they may have regarding the purchase of land outside of the confines of the Buy-Back Program."
In more meaningful words, under 25 U.S.C. 2204 tribes have the right to force the sale of their members' land interests. "Make no mistake about it: while Interior’s plan now disclaims that it will facilitate forced sales under 25 U.S.C. 2204, the buy back program will catalyze controversial intra-tribal forced sales." It is sketchy to feign or suggest that it won't.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or firstname.lastname@example.org.