Abstract

Excerpted From: Alida Pitcher-Murray, Landback and the Case for Land Restitution: How the South African Land Claims Court and Restitution Programme Can Inform the Return of Indigenous Land in the United States, 28 U.C. Davis Social Justice Law Review 1 (Winter, 2024) (218 Footnotes) (Full Document Requested)

“Our land is more valuable than your money. It will last forever. It will not even perish by the flames of fire. As long as the sun shines and the waters flow, this land will be here to give life to men and animals. We cannot sell the lives of men and animals; therefore we cannot sell this land.” -Crowfoot, Chief of the Blackfeet, circa 1885

We are on Indigenous land. Since the first contact with European settlers, Indigenous people have urged the return of this land. In the United States, the latest iteration of this legacy is the #LandBack (Landback) movemen, an Indigenous-led collective struggle for the return of ancestral land and for Black and Indigenous solidarity. The movement is best captured by the phrase: “The Black Hills are not for sale!” Landback also demands recognition of Indigenous communities as sovereign nations. As Arthur Manuel, a Secwépemc leader in Canada describes, Landback means “Indigenous authority ... over their own territory; the restitution of actual lands, resources and wealth; and the revitalization of Indigenous culture.”

The return of Indigenous land by the United States government has precedent. The 1970 return of Blue Lake to the Taos Pueblo in New Mexico is considered “one of the first modern Landback victories.” In 1906, the federal government illegally seized 48,000 acres from the Taos Pueblo, converting them into national forests. For decades the Taos Pueblo advocated for the return of their lands, securing meetings with the Senate Indian Affairs Committee, and eventually with President Richard Nixon in 1970. This presidential meeting was significant not only because it provided a forum in which the Taos Pueblo could voice their arguments, but it also suggested the federal government believed itself to be engaging in “government-to-government relations.”

The Landback movement reveals the inherent tension in federal Indian policy: while federally recognized tribes are sovereign nations, they remain “wards” of the United States government, beholden to its “trust responsibility.” Thus, the return of Indigenous land requires the willing participation of the federal government.

This Article assesses the conditions under which the United States government could honor and ultimately legally legitimize the Landback movement. It considers whether the creation of a land restitution program by the government to provide a forum in which Indigenous communities could bring land claims is feasible. This Article draws for comparative purposes on the experience and record of the South African Land Claims Commission, Land Claims Court, and Restitution Programme, which were adopted following the end of Apartheid. Large-scale land transfers under the Restitution Programme provide examples of analogous claims to those that might be brought in the United States. However, were a large-scale land restitution project undertaken, the United States would need to overcome certain obstacles encountered by the Programme. Moreover, such a project would only be effective if it were to explicitly acknowledge, honor, and include the priorities and expertise of Indigenous communities.

Whereas there is a strong case for a land restitution program in the United States, this Article acknowledges arguments in opposition. Scholarship examining slavery and segregation reparations provide insights into such disputes. Relying on this literature, the arguments against land restitution may as such include (with counterarguments in the  (1) the members of tribes whose lands were stolen are no longer alive today, and thus current claimants lack standing to bring claims; (2) the statute of limitations has run on claims for land unlawfully taken via theft or treaty violation hundreds of years ago; (3) there is potential for all land in the United States to have a claim attached to it, given that Indigenous people occupied the entire nation before settler colonialism; and (4) because tribal entities are co-managing or cooperatively restoring certain public lands with the federal government, the return of land is unnecessary.

In examining the feasibility of creating a land restitution program in the United States, this Article proceeds as follows. Part II provides a brief history of settler colonialism in the United States. Here, the Article examines the United States Court of Claims and Indian Claims Commission, which attempted, and failed, to provide adequate redress to Indigenous communities whose lands were stolen via treaty violation--excluding those communities and claims whose lands were stolen in myriad other ways--by the United States government.

Part III introduces the South African Land Claims Commission, Land Claims Court, and Restitution Programme, situating them within the context of Apartheid and the Native Lands Act of 1913. This Part discusses large-scale land restitution projects implemented under the Restitution Programme, which are analogous to claims brought under a restitution program in the United States. Additionally, Part III outlines the Restitution Programme's deficiencies and assesses how the United States could implement a land restitution program given these concerns. Part IV provides an examination of additional international land restitution programs which further inform the adoption of a land restitution program in the United States. Finally, this Article concludes by reiterating the value of a land restitution program in the United States.

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The fight for land restitution by Indigenous communities in the United States has spanned multiple generations, comprising a broader goal of self-determination. The United States government has thus far failed to provide adequate redress to Indigenous communities, whose lands were taken by force, coercion, and/or treaty violations. As this Article demonstrates, international models of nationalized land restitution contribute to an imagining of a land restitution program in the United States.

One particularly salient model is the South African Land Claims Commission, Land Claims Court, and Restitution Programme. These programs not only created a legal forum in which individuals and communities dispossessed of land during Apartheid could, and still can, bring their claims, but also provided for restitution of those same lands, sometimes on large scales. Despite its deficiencies, the Programme offers a feasible model for the implementation of land restitution on a national scale in the United States. Were the United States to establish a well-funded restitution program, it would need to understand and address the critiques of the South African model to avoid similar deficiencies.

Central to a land restitution program in the United States would be the expertise, advocacy, and engagement of Indigenous people and communities. Most importantly, a land restitution program would have to adopt the tenets of the Landback movement, which demands the return of ancestral lands as redress for the legacy of land theft while explicitly rejecting financial compensation. In the nineteenth century, Crowfoot, the Chief of the Blackfeet, elucidated the relationship between land, Indigenous people, natural resources, and animals, concluding that: “We cannot sell the lives of men and animals; therefore we cannot sell this land.”

The Landback movement also expounds that land restitution concerns the relationship between Indigenous communities and the United States federal government as sovereigns. Therefore, the return of ancestral lands is crucial to the ability of Indigenous people to achieve complete sovereignty and self-determination. Only if the United States honors these demands might the land wrongs of the past begin to be addressed.

Alida Pitcher-Murray is a graduate of Northeastern University School of Law, where she dedicated her academic career to Indigenous justice and housing law. Alida is an incoming law clerk with the Massachusetts Land Court. The author is a non-Native scholar of Indian law. She does not represent or speak for any Tribe or Indigenous community.

This Article uses the terms “Indigenous” and “Native” to refer to the Indigenous people of the United States, but “Indian country” to refer to Indigenous land. These terms are used regularly by scholars and activists. The Article uses the term “Indian” only when quoting other sources. This is a legal term of art used in legal decisions, federal statutes, and treatie