Restoring access and cultural rights to Indigenous tribes is a hugely important endeavor to start correcting the historical wrongs inflicted on the Indigenous community in this country. Outlined below is a spectrum of options that innovate traditional legal real property agreements to restore Native Americans’ access to land. While the access conversation is new and still developing, this article provides an overview of some of the transactional structures that are currently manifesting in this space. More secure solutions include fee title transfers, cultural conservation easements, and cultural use easements, while less secure solutions include naming cultural rights in the language of a conservation easement or developing voluntary license agreements between landowners and users. More on each of these solutions below:
1. Land Ownership Transferred to Indigenous Tribe.
On the far end of the spectrum is a transaction where fee title ownership to land is transferred to the tribe. This is part of what is known as the “land-back movement” and is picking up steam. There are examples of this in Big Sur, where the Esselen Tribe of Monterey County purchased 1,199 acres , in Oregon, where a timberland owner sold 3,200 acres to the Coquille Indian Tribe, and in British Columbia, where a rancher donated half of his ranch to his Indigenous neighbors, Esk’etemc First Nation. You can read more about the Essalen project here, the Coquille Indian Tribe project here, and the British Columbia project here.
Land trusts and other nonprofits can facilitate these types of deals by convening discussions, helping to obtain grants, providing due-diligence expertise, garnering public support, and serving as bridge funders with the tribe positioned as the eventual “take-out” owner, among other possible roles.
2. Conservation Easement | The Tribe as Grantee of the Conservation Easement.
Conservation easements can also be used to grant access and cultural rights to Native American tribes. Under the California conservation easement enabling act (Cal. Civ. Code section 815 et seq.), certain tribes are eligible holders of conservation easements (see Cal. Civil Code section 815.3(c)[1]). Mid-Peninsula Open Space District recently completed one of these transactions, in which they continue to own fee title to the land—a sacred site for the Amah Mutsun Tribal Band—but have granted a cultural conservation easement to the Amah Mutsun Tribal Band to allow cultural and ceremonial access and other use rights, such as the creation of a native plant garden and other land-management activities. You can read more about the Amah Mutsun project here. Conservation Partners also completed such a project in eastern Humboldt County, where a group of investors purchased land and proposed a commercial cannabis operation that would create potential impacts on Indigenous cultural sites. As mitigation, the landowners agreed to convey a conservation easement to the Tsnungwe Council over a 6-acre portion of the land that was the original village site of the Tsnungwe people at the confluence of the Trinity and South Fork Trinity Rivers. The easement contained typical subdivision and development prohibitions, but also allowed for cultural, ceremonial, gathering, restoration, and research uses for the tribe. The cannabis company continues to own fee title. You can read more about the Tsnungwe Council’s conservation easement here.
In this type of transaction, land trusts and other nonprofits can also facilitate by convening discussions, helping to obtain grants, providing due-diligence expertise, and garnering public support, among other possible roles. As in the fee-conveyance context, the land trust could again play a supporting role rather than a primary one.
[1] A federally recognized California Native American tribe or a non-federally recognized California Native American tribe that is on the contact list maintained by the Native American Heritage Commission to protect a California Native American prehistoric, archaeological, cultural, spiritual, or ceremonial place, if the conservation easement is voluntarily conveyed.
3. Cultural Access Easement | Separate Easements Provide for Cultural Access and Land Conservation.
Here the conservation easement grantee is a land trust or other eligible entity, and the cultural use rights are granted directly to the tribe through a separate cultural access easement. Conservation Partners worked with a landowner and Save the Redwoods League to structure cultural access rights in this way when the League granted a conservation easement to Sonoma County Open Space District and concurrently granted a cultural access easement to the Kashia Band of Pomo Indians tribe. The property was later sold subject to these perpetual easement rights. You can read more about the Kashia cultural access easement here.
4. Conservation Easement | Land Trust and Tribe Named as Co-Grantees.
In this type of transaction, the land trust and tribe would serve together as joint grantees/holders of the conservation easement and the easement would address cultural rights in addition to the typical conservation easement restrictions. The parties could act as partners in all aspects of the conservation easement monitoring and enforcement or could opt to bifurcate the roles where the land trust takes on the traditional role of monitoring and enforcement of the development and land-use provisions while the tribe utilizes and upholds the cultural rights conferred. The two easement holders would agree to collaborate on the entire transaction and would be involved throughout the development of the transaction, the conservation easement itself, due diligence, and closing. Much like the first three approaches, the joint-grantee approach allows for the tribe to obtain and hold these access and cultural rights in perpetuity, whereas the next few options have the potential to limit the perpetual nature of the tribe’s land access.
5. Conservation Easement | Land Trust Serves as Grantee but the Easement Provides for Cultural Rights
Unlike the earlier options along the spectrum, this option would be landowner-specific and may not provide the same level of perpetual and legally binding access as the earlier options. This approach offers two possibilities:
i. Grantee rights – Easements do not typically grant affirmative rights to the easement grantee other than monitoring, enforcement, and protection of the protected property’s conservation values; however, some easements do grant additional rights to the grantee, such as the right to conduct ecological restoration or scientific study or facilitate public access. For this type of solution, additional rights to facilitate cultural access can be built into the conservation easement, allowing the land trust to engage with a tribe upon landowner consultation and reasonable approval. This option would allow the land trust to initiate cultural access arrangements, but would still require extensive discussion, planning, and landowner input and approval.
ii. Landowner rights – In this situation, the easement could explicitly reserve to the landowner the ability for the landowner to grant cultural rights to the Indigenous community. This may include adding “cultural activities” as part of the recreational use paragraph as well as clarifying that the section in the conservation easement related to granting easements, licenses, and other interests in land also applies to cultural use rights. The landowner’s granting of cultural use rights would probably not be forbidden without the specific language we are describing, because a cultural access grant likely would already be consistent with the stated purposes of the easement—akin to inviting friends, a school group, or others to come onto one’s land. However, including the ability for the landowner to provide cultural access may set the stage for the development of future relationships between the landowner and the local tribe. This solution is limited because the suggested language permits the landowner to grant cultural access rights in the future if they so choose, but does not obligate the landowner to do so. Furthermore, all such activities and agreements with the tribe would still be required to be consistent with the preservation aspects of the easement.
While specifying grantee rights in a conservation easement to facilitate cultural access is still subject to reasonable landowner approval, and retaining the landowner’s right to grant a cultural access easement does not obligate the landowner to provide that access, either of these two approaches provides benefits greater than simply being silent on the issue of cultural resources. Even without explicit rights in the easement, the land trust could always approach a landowner and request the right to undertake these activities; however, including one or both of these options in the conservation easement opens dialogue on this important issue and plants a seed for the future.
6. No Fee or Easement Transfer.
Of course, parties can always make arrangements without granting a perpetual real property interest like an easement. For example, landowners and Indigenous tribes can enter into license agreements or leases to allow access to land, subject to zoning or other applicable laws.
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This menu represents just a few initial thoughts on how we might craft easements and other agreements to afford cultural access and ceremonial rights to Indigenous peoples. There is a great deal of interest in these types of arrangements and transactions and the field will inevitably develop as more parties participate and discover additional solutions. Hopefully, grant-makers will show interest and leadership in funding these efforts going forward.