Abstract

Excerpted From: Devin Nicole Barbaro, Taking the Land Back: How to Return Stolen Land to the Indigenous People of New York State Through Eminent Domain, 32 Journal of Law & Policy 37 (2023) (247 Footnotes) (Full Document)

Land Back. Two simple words. Without context, these two words seem straightforward, but behind these words lives a movement that is far more complex. Land Back is a centuries-long battle fought by the Indigenous people of the United States to regain control of Indigenous lands.

From the moment European colonizers arrived on the shores of North America in the seventeenth century, Indigenous people who had lived there for hundreds of years were robbed of their land rights. In New York State, the Dutch colonizers were the first Europeans to settle in what is present-day Manhattan. At the time, this territory was occupied by the Lenape Tribe. According to history from the Dutch perspective, the Lenape sold their land on the island of Manhattan to the Dutch in 1626 for about $24 in today's currency. From the Native perspective, it is much more likely that the Lenape never saw this transaction as a sale that would relinquish their land rights. Instead, descendants of the Lenape contest that the Tribe viewed this “sale” as an exchange of gifts to share the land. But from that point on, European colonizers callously forced the Lenape out of their land and pushed them further and further west, leaving a miniscule population of Lenape in their native New York City. The rest of the Native American Tribes throughout New York followed a similar story. Today, there are only eight federally recognized Tribal Nations present in New York State. The territory owned by these Tribes makes up a very small portion of all the land in New York. These Nations have been fighting and advocating to regain land rights across the state for hundreds of years, and the fight is ongoing.

In June 2022, the United States government and the Onondaga Nation of New York State signed a historic agreement. In this agreement, the federal government promised to return over 1,000 acres of ancestral land to the Onondaga Nation, making it one of the largest land returns to a Tribal Nation in history, and the largest return in the state of New York. While the Onondaga people see this return as a historic win, they also view this agreement as just one step in regaining their land rights in New York State.

A major land return such as the Onondaga's exemplifies just one success of the Land Back movement. At its core, the goal of Land Back is to regain land rights and re-establish the sovereignty of the Tribal Nations. The Land Back movement has gained momentum in name within the last decade, but the idea behind the movement has existed for generations. “#LandBack” began trending as a hashtag across social media platforms in 2016 during the Standing Rock protests against the North Dakota Access Pipeline on the Sioux Reservation. This hashtag helped bring attention to the movement itself, as well as the challenges faced by Indigenous communities. The term “Land Back” continued to spread, next becoming a rallying cry during the July 2020 protests at Mount Rushmore. Soon after these protests, an Indigenous rights organization known as the NDN Collective created a formal campaign centered around the “Land Back” slogan. The momentum continues to grow, and the movement has even been given exposure in Hulu and FX's hit television series Reservation Dogs.

While the priority of Land Back is to regain land rights, the movement also seeks climate justice, cultural preservation, and liberation from white supremacy. The injustices done to Tribal Nations and their people for centuries by the United States government calls for reparations in the form of land rights. As Sid Hill, Tadodaho (chief) of the Onondaga, describes it, the recent return of the 1,000 acres in New York “begins to redress the unjust dispossession of the Onondaga Nation from their ancestral lands.” Further, Indigenous land ownership is vital in the fight to combat climate change. In 2019, the United Nations' Global Assessment on Biodiversity and Ecosystem Services published a report which found that negative environmental impacts were either not as severe, or avoided entirely, in places that were owned or managed by Indigenous communities. For the Onondaga people, their Land Back victory in the Onondaga Creek area will allow them to apply their ecological expertise to the land and water. Their stewardship in caring for the land in this region is rooted in tradition, and will allow the environment to be restored and preserved after suffering from years of pollution by industrial waste.

The idea of Land Back should be as simple as the term itself. The United States should return the tens of millions of acres of land that it stole from the Indigenous People of North America. Of course, the solution is not that simple. There are 1.9 billion acres in the United States, nearly all of which can already be accounted for, owned either privately or by the government. There is no clear-cut solution to regaining land rights, and Tribal Nations have used different methods to reclaim their land.

One method that Tribal Nations could use in their fight to regain land rights is eminent domain. Eminent domain is a legal method of land acquisition which allows the government to take control over private land by forcing the owners to sell it. An exercise of eminent domain often results in the government selling the newly acquired private land to another private entity, so the government could use eminent domain to acquire privately owned land and transfer that land to Tribal Nations.

This Note examines how the Tribal Nations of New York State have been stripped of their land rights over the past 400 years, why it is necessary and important to re-establish those land rights, and the ways in which Tribal Nations can win their land rights back. Part I of this Note scrutinizes the history of the Tribal Nations in New York State and how the law has deprived these Nations of their land and property rights for hundreds of years. Part II discusses the reasons why returning stolen land to Tribal Nations is a necessary action that must be taken, both for the fight against climate change and for reparations. Part III will explore the methods that are currently being used to return land to Tribal Nations. Finally, Part IV proposes an amendment to New York State Eminent Domain Procedure Law to empower Tribal Nations to utilize a government taking of private land in order to return that land to their communities. New York State should amend its Eminent Domain Procedure Law to include a definition that allows takings to be exercised for the purposes of returning land title to Tribal Nations to right the wrongs of the past and to bolster the state's fight against the climate crisis.

[. . .]

Land Back is not a movement that can achieve its goals with just one solution. As Krystal Two Bulls, the director of the Land Back campaign, puts it, “[W]e are no longer asking permission.” Cl Asking for land back has not been effective enough for Indigenous communities to regain land rights. Instead, Indigenous communities need tools to take their land back, and one way to take it back is through takings. To facilitate the ability of Tribal Nations to regain land via takings, New York State should amend its Eminent Domain Procedure Law by expanding the definition of “public use” to include the acquisition of land rights for Tribal Nations. If New York State took this step to return more land to Tribal Nations, it would be an investment in the fight against climate change and would mitigate some of the damage the climate crisis has already caused. Returning land would also be a major step in rectifying the wrongs of the past, as a form of reparations for the land, lives, and wealth of Indigenous people that has been compromised by New York State. It is the right thing to do. For these reasons, returning land to the Tribal Nations of New York is a benefit to the public, and should be explicitly defined as such in the New York State Eminent Domain Procedure Law as a means to achieve the goals of the Land Back movement.

“We organize our lives around the belief that what we do today is designed to benefit those seven generations into the future, as we build on what was left for us seven generations into the past.”

--Sid Hill, Chief of the Onondaga Nation

J.D. Candidate, Brooklyn Law School, 2024. B.A., Marist College, 2015.