The Small Trust Land User Research & Assistance ProjecT
Beneficial trust land management and use on the Navajo Nation as applied to individuals in Navajo Nation chapter communities is both an extremely complicated and obscure area of regulatory law. Encompassing leases and permits for homesite leases, business, grazing, and farming, as applied to communities these leases and permits regulate purpose, duration, preliminary requirements such as environmental and cadastral surveys and master planning, and the procedures and conditions by which the leases and permits are obtained, disputed, and subject to tribal probate. In 2018, surface leases and permits on trust land (excepting grazing permits) are regulated entirely under Navajo Nation tribal law. However, community members remain confused about the applicable laws, including the extent by which the Tribe can modify the land use management system to accommodate community needs. Most community members continue to believe that the Tribe is obliged to impose federal land management constraints that do not reflect how land needs to be locally managed according to custom and practical need.
The Small Trust Land User Research and Assistance Project examines the complex demands and hardships due to decades of unnecessary and exclusive reliance on single purpose, individual-based, and generationally carved up leases and permits for trust land management on small trust land users on reservation communities on the Navajo Nation. The project particularly focuses on surveying and providing solutions to land use-related pressures on familial relationships, community practices and the traditional Navajo sharing economy.
Implemented in 2015 to address a gap in knowledge concerning the
needs of small trust land users who are or will be affected by the
Navajo Nation
assuming leasing and permit administration under first the Navajo
Leasing Act of 2000, then all tribes exercising similar discretionary
trust land management control under the HEARTH Act of 2012.
Through this long-term project,
ICGS pursues and aids research into the needs and challenges
of community-based land users beginning on the Navajo Naiton, later on
other Indian reservations, including
stabilizing non-profits, providing workshops, and pursuing input and
legal reforms in regions whose tribes have
implemented, or are planning to implement, tribal regulations. The goal is to
suggest practical legal reforms that will simply and most easily benefit community land users
and support their land use farm, arts and business practices. “Community-based land user” means
tribal members who live in the reservation community on trust land, and
who possess or have an interest in plots for homes, business, farming or grazing.
ICGS
relies on community engagement for information on regulatory
challenges faced by small trust land users. Upon learning from the
community about their challenges, we research laws to find the legal
foundation of their problems and, from there, look into the roots and
sources of the laws to find out why they were enacted, whether the
reason still holds, if there may have been some prior misinterpretation,
and if relief is possible through the simplest and least disruptive
solutions. The goal is relief from the barriers through recommendations
for legal reform. This is a restorative approach because it involves all
relevant stakeholders in developing the plan. The solutions are
restorative, driven from within informed communities themselves.
We look to traditional principles within communities themselves to guide any recommended solutions, as the strongest communities, with the most sustainable development, are those that develop using principles and methods consistent with their tradition and culture. We are aware that in the past, lawyers and lawmakers have rushed in to communities with solutions that have worked elsewhere or which they believe is appropriate for the community involved without first obtaining and understanding local philosophies and practices. Our approach is to focus on relationships, as we strive to know traditional principles and local wishes and practices.
A Questions and Answers section will be
ready on this website by the end of 2018.
The HEARTH (Helping Expedite and Advance Responsible Tribal Home
Ownership) Act of 2012 amends the Indian Long-Term Leasing Act of 1955,
25 U.S.C. Sec. 415, authorizing tribes to administer their own surface
land use leases without needing to obtain further federal government
approval once tribal leasing regulations have been submitted to, and
approved by, the Secretary of the Interior. It is a discretionary law.
Tribes are not obliged to implement the HEARTH Act. However, once they
do exercise the discretion and enact the necessary tribal laws, tribes
take over previouely federally-administered lease and permit functions
that have been enacted as tribal law and duly approved by the Secretary
of the Department of the Interior, and tribes do so without federal
funding.
While the HEARTH Act is only now being rolled out to all tribes, the
Navajo Nation has had the authority to administer its own surface land
use leases and permits since 2000 under the Navajo Leasing Act of 2000
(25 U.S.C. § 415(e)). In 2012, Congress took the Navajo Leasing Act
language at 25 U.S.C. § 415(e) and extended surface leasing authority
previously given to the Navajo Nation to all tribes under the HEARTH Act
with an additional mandatory requirement for environmental review.
A Brief Background of Navajo Nation Self-Management of Trust Land Leases and Permit
In 2006, Navajo Nation Business Leasing Regulations were adopted by the
Navajo Nation Council and approved by the Secretary of the Interior;
since then, business site leases have been administered and managed by
various departments within the Navajo Nation Division of Economic
Development.
In 2014, the Navajo Nation General Leasing Regulations Act was approved
and adopted, covering all other surface land use leases including leases
for the development or utilization of natural resources, renewable
energy leases for wind and solar and agricultural leases,
telecommunications site leases, and leases for public, religious,
educational, recreational, or residential purposes. The GLRA provides
the framework for more detailed regulations to be established or amended
for each covered lease activity.
In this project, references to the “HEARTH Act” include the Navajo
Leasing Act. Discussions of HEARTH Act tribal regulations includes the
existing and very extensive Navajo Nation surface leasing and permit
laws promulgated under the Navajo Leasing Act, as well as approved and pending Navajo
Nation land use legislation.
In 2015-16, the project engaged in community engagement research on the Navajo Nation in the Shiprock Agency and surrounding chapters. Receiving sponsorship through a Shiprock Chapter resolution and obtaining a green light from the Navajo Nation Human Research Review Board, the project conducted 3 chapter presentations and engaged in-depth with 60 small trust land users in the following Navajo Nation chapters: Cove, Crownpoint, Kayenta Chapter, Kayenta Township, Sanostee, Sheepsprings, Shiprock, Toadlena, Tohatchi, Tsaile, Tse Daa Kaan, and Window Rock. Strong project partners were the Shiprock Chapter, Shiprock Planning Commission, and the Shiprock Regional Business Development Office. Support also came from DiscoverNavajo, the Navajo Nation Tourism Office. The Navajo Nation Land Department, Office of Navajo Government Development, and Navajo Nation "Title 26 Taskforce" invited comment and presentations, culminating in submission of a preliminary community enterprise hub plan emphasizing the need for land use reform, providing options for alternatives to leases and permits, and also disagreed with the Taskforce emphasis on eliminating chapters in favor of regionalized government.
Project 2016-17
In 2016-17, the project extends to the entire 27,000 sq. mile Navajo Nation reservation, partnering with the Dineh Chamber of Commerce and grassroots land and food sovereign groups in community engagement research and information distribution. Its work in the Shiprock Chapter also expands regarding land use reform needed to create the community enterprise hubs that the community has expressed would be not only a return to customary practice but a necessary healing of a community presently divided into land use "cages."
In September, 2017, the project and policy analysts from the office of its partner NNOGD met with leadership at the Navajo Nation Division of Economic Development to explore the impacts of the 2016 Homesie Lease Regulations on homebased businesses and what can be done to encourage hybrid business forms on the Navajo Nation that can attract social benefit or impact investment. NNDED is now looking into seeing how signage prohibitions on homebased permitted businesses may be removed, and how tribal majority non-profits may be included on Navajo Nation Business Regulatory priority lists. At this time, non-profits--being owned by no one--are excluded from the lists due to the "owner" language in the Navajo Nation Business Opportunity Act that limits first preference by tribal funders to entities on the list. The exclusion of non-profits from the priority list means both that tribal non-profits are at the back of the line in competition for Navajo Nation contracts, and tribal units are unable to benefit from low cost non-profit providers of significant beneficial services. Non-profits are heavily relied on to perform services that target social welfare and social and environmental development, but their exclusion from the regularly updated list means that non-profits are less supported by the tribal government than they could be and are unable to become self-sustainable using measures other than donations and grants.
Regular meetings continue to be held among project partners.
Project 2017-18
In 2018, the Project followed particular farmers from preparation for the planting season through harvest, and partnered with the San Juan River Farm Board and community groups in exploring how leases and permits in farming and grazing are being used. The project also worked with Western Agency chapters in understanding that customary land use principles need not be abandoned due to the impression that the federal government requires such abandonment. The federal government imposes no such requirement on reservation communities. In fact, tribes have the ability to design land management models that support community life. Since 2003, tribes have been encouraged by the federal government to seek integrated land management models that support communities more than the single-use, individual lease and permit system.
A law article on the application of the Navajo Leasing Act on the Navajo Nation was completed and is forthcoming from the American Bar Association Native Resources Committee Newsletter, Volume 24, Issue 1. A pre-publication draft has been presented to Navajo Nation lawyers.
The project presented its research on Navajo Nation caselaw in the area of customary land trusts, homestead settlements, and probate at the Annual Meetin gof the Navajo Nation Bar Association in Ignacio, Colorado, in June, 2018. A law article onthis presentation is presently being prepared.
Finally in 2018, a council of elders was formed to discuss and draft a preliminary statement of customary land use principles to be then taken to chapter communities throughout the Navajo Nation for adoption.