This Article describes the emerging role of private entities in returning land and land access to Indigenous peoples.
Indigenous peoples have long advocated for the return of Indigenous lands, including through the Land Back movement. While many calls for Land Back have focused on public lands and government actors, this Article describes how private entities, private lands, and private law can support Land Back. This Article examines private, nonprofit land conservation organizations (land trusts) as a case study of the role of private entities in returning private land and land access to Indigenous peoples. Based on original research, including interviews and a review of private land documents, this Article makes several contributions to the literature.
First, it categorizes private law tools currently being used in collaborations between land trusts and Indigenous peoples to return land and land access: fee simple land return, easements and profits, and licenses and contracts. This is the first Article to examine novel private law tools for Indigenous land access, including cultural access easements and agreements, harvest permits for culturally significant plants, and land invitations. Second, this Article argues that private law can support decolonization and describes how private law tools for land return and land access can reflect decolonization principles. In the process, private law tools for land return have the potential to support a stewardship model of property law. Third, this Article describes the absence of major legal barriers for land trusts to return land and land access to Indigenous peoples. It then suggests two areas of public law reform to support the return of land and land access: tax incentives and changes to state and federal funding programs for land conservation. Overall, this Article encourages private entities and landowners—under the direction of and in collaboration with Indigenous peoples—to return land and land access to Indigenous peoples.
