Republican congressional proposals to sell off huge swaths of public land for housing could threaten tribal nations’ constitutional and treaty rights to access hunting and fishing grounds, as well as their cultural and ceremonial sites, experts say.
The latest proposed text, obtained by E&E News, from the Senate Committee on Natural and Energy Resources would allow the sale of Bureau of Land Management lands within 5 miles of a “population center.” A previous version included Forest Service lands, and federal lands within reservation boundaries. The legislation would also conflict with current procedures that allow tribes to obtain nearby public lands at no or low cost, instead requiring that such lands be purchased at “fair market value.”
“This is a frontal assault on tribal treaty rights and the exercise of those,” said Cris Stainbrook, Oglala Lakota and CEO of Indian Land Capital Company, which assists tribal nations in regaining land.
The proposed legislation — which has not yet passed out of committee — repeatedly puts states and local governments ahead of tribal nations. For example, the bill gives state and local governments the “right of first refusal” when land is put up for sale but denies tribes that same right. The bill would also prioritize land nominated for sale by states and local governments but not land that is nominated by tribes. While the legislation does include a requirement to consult with tribes as well as with states or local governments affected by land sales, it’s not clear how such proposals would be weighed should they conflict with one another. The state of Montana and federally protected lands are exempt, though tribal nations do not appear to have been consulted on the legislation.
“Today, we raise our voices in firm opposition to the Senate’s proposed sale of federal lands with the Lake Tahoe Basin,” said Serrell Smokey, chairman of the Washoe Tribe of Nevada and California in a statement Wednesday, urging elected leaders and the public to reject the legislation. “To sell these lands without full consultation and consent of the Washoe people is to once again erase our presence and violate our rights.”
As of press time, spokespeople for Republican Sens. Mike Lee of Utah and John Barrasso of Wyoming, who both sit on the Energy and Natural Resources Committee, had not responded to questions about tribal exclusion from the draft bill or whether tribes were consulted on its creation.
“It is unacceptable and downright appalling that Donald Trump and Republicans are pushing to include a provision that limits Tribal involvement in decisions about public lands in the reconciliation bill,” said New Mexico Sen. Martin Heinrich, the Democratic ranking member on the committee in a statement to High Country News. He was not involved in crafting the legislation. “Tribes must be consulted independently, sincerely, and with the full weight of government-to-government respect they deserve. To date, Trump and his administration have failed to appropriately consult with Tribal Nations regarding protections for public lands.”
The bill raises the possibility that lands that tribal members use for cultural purposes, hunting or fishing could be privatized. “Assuming the premise that we should be considering selling public lands, why would we do it in this way that can take from Indian people without their consent?” said Bryan Newland, former assistant secretary for Indian Affairs under the Biden administration. “Why would we prevent them from participating in this process the same way we’re letting townships and counties, which aren’t sovereign?”
Newland added, “So many of these questions can be answered by just bringing tribes and Indian people to the table and having us participate.”
“Why would we prevent them from participating in this process the same way we’re letting townships and counties, which aren’t sovereign?”
The legislation conflicts with existing constitutional and treaty rights, as well as recent court decisions that affirm tribal nations’ rights to access federally managed lands. Many tribal nations have settlement agreements or court rulings that secure their right to access off-reservation lands. Newland pointed to his own tribe, the Bay Mills Indian Community where he was formerly president, which signed an agreement with the federal government about 20 years ago as a result of a court case. The agreement ensures that tribal members retain fishing access to Hiawatha National Forest, which borders their reservation. If tribal access and rights are going to be diminished, “you have to have consent, not just morally, but legally,” Newland said.
Tribes must have greater input when it comes to decisions of this magnitude, Newland said. “Consultation isn’t enough. It says, ‘All right, we’re going to talk to you before we take something from you.’ That was federal policy in the 1800s,” he added. “That shouldn’t be federal policy today.”
For decades, tribal nations have advocated for the return of lands taken through government policies and outright seizure. Federal lands have been an important part of this strategy: A 2020 analysis of lands within 10 miles of a reservation boundary by researchers at the Harvard Project on American Indian Economic Development found that about a quarter of that land was managed by a federal agency, often by the BLM or the Forest Service. Tribes might support legislation that would make it easier for them to regain ancestral lands, but not like this, Stainbrook said.
The new legislation would also conflict with how federal agencies currently offload public land they deem “excess.” Right now, if the land falls within a reservation’s boundaries, the Bureau of Indian Affairs initiates a transfer at no cost to the tribe. The land is then held by the BIA “in trust” for the tribe. In some cases, tribes can also seek to acquire such land outside their reservations. But the Senate Republican bill requires that all land be sold at “fair market value,” meaning that tribes might have to pay for lands they normally wouldn’t have to purchase, or else risk losing out to the state or a private developer.
The legislation is the second major push in Congress to sell off public lands during the second Trump administration. In May, Republican Reps. Celeste Malloy of Utah and Mark Amodei of Nevada introduced language that would sell off 500,000 acres of public land in their states, some of which are near the Pyramid Lake Paiute and Shivwits Band of Paiutes reservations. “These are not excess acres. These are Native lands,” said Taylor Patterson, citizen of the Bishop Paiute Tribe and executive director of Native Voters Alliance Nevada in a statement at the time. “This is the same story our people have lived through for generations. Erase us, sell what is left, and pretend it was never ours.
“But it was. And it still is.”
Mapping by Branden Rishel/Western Watersheds Project
Photo illustration credits: Carson Valley, Nevada, including Stewart Community, which is part of Washoe Tribe of Nevada and California lands. Ken Lund/CC via Flickr; A map showing Stewart Community, near BLM and USFS lands. BLM National Public Lands Access Data; A postcard from 1865 shows the eastern shore of Lake Tahoe. Public domain
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