Today, Village Earth’s Lakota Lands Recovery Project launched the latest version of its Pine Ridge Land Information System (PRLIS) that now connects the Reservation Parcel layer with the Bureau of Land Management’s Land Patent Database. This new addition is valuable for members of the Oglala Sioux Tribe who are trying to figure out when their allotted lands were originally issued to their ancestors and in particular, when their allotted lands were converted to fee-simple status and liquidated. This is the first step to uncovering why certain lands were “fee-patented” and liquidated. Village Earth (2017) analyzed the distribution of fee-patented lands on the Pine Ridge Indian Reservation in South Dakota relative to prime agriculture lands as classified by the NRCS Land Capability Data and discovered that “even though fee lands account for less than 31% of lands on Pine Ridge they occupy over 53% of the prime agriculture lands (Bartecchi 2017).” Our data, consistent with (Carlson 1983), suggests that the issuance of fee patents prior to 1934 was not random but rather a mechanism to liquidate prime agriculture lands to white settlers. Village Earth and the LLRP believe the injustice and inter-generational affects of forced-fee patenting must be researched and exposed. This new resource is major step forward toward this goal.
To access the BLM Patent Database from the PRLIS simply turn on the Parcel Layer from the layers menu (top-right), search for the desired Tract ID or last name of original allottee in the search dialogue (top-left). Once located, open the pop-up window by clicking on the parcel and click on the Patent Database link. This will launch the BLM database listing all the land patents available for the selected section of land. Below is a sample land patent for a parcel on the Pine Ridge Reservation.
Background on the Status of Indian Lands
Today, the US Department of Interior’s Bureau of Indian Affairs (BIA) holds 56.2 million acres of lands in trust for various Indian tribes and individuals. Approximately 46 million acres (81%) of this land is used for farming and grazing by livestock and game animals, yet despite these vast resources, for the last 100 year, Native American’s have not been the primary beneficiaries of these resources. According to the 2012 USDA Census of Agriculture which collected data for 76 Reservations, Native Americans only captured 10% of the Agriculture revenue generated on their lands and if you exclude the Navajo Nation as an outlier, Native Americans control less than 40% of their land base. While Native Americans struggle with disproportionate levels of poverty, the majority of their lands are being leased by non-Natives for a fraction of their fair market value.
All of these contemporary issues can be traced back to the General Allotment Act also known as the Dawes Severalty Act signed into law February 8th, 1887 which partitioned Native American lands; 160 acres to heads of families, 80 acres to orphans and single persons over eighteen, and 40 acres to single persons under eighteen then living or born before the president ordered allotment (McDonnell 1991). According to the law, all lands remaining after allotment were then to be considered government surplus and were subsequently liquidated. In total, this amounted to approximately 86 million acres of land, 62% of their pre-Dawes Act land holdings.
For Henry Dawes and other self-proclaimed “friends of the Indians” the communal system of land management on Reservations was a barrier to “progress.” In the words of Henry Dawes referring to the Cherokee Nation; “There is not a pauper in that Nation, and that Nation does not owe a dollar. It built its own capital, in which we had this examination, and built its schools and hospitals. Yet, the defect in this system was apparent. They have gone as far as they can go, because they hold their land in common. It is Henry George’s system, and under that there is no enterprise to make your home any better than that of your neighbors. There is no selfishness, which is at the bottom of civilization. Till these people will consent to give up their lands, and divide them among their citizens so that each can own the lands he cultivates, they will not make much progress” [Senator Henry Dawes quoted in Janey Hendrix, “Redbird Smith and The Nighthawk Keetoowahs.” Journal of Cherokee Studies 8 (Fall, 19 ): 24]”
While the original intent of the Dawes Act may have been to encourage Native Americans to cultivate their lands, subsequent amendments to the Dawes Act had the exact opposite outcome by not only discouraging Native Agriculture but also dispossessing Native Americans of their allotments through massive cessions, sale and the mechanism of leasing. Numerous studies and government reports illustrate the connection between land sessions, sales and leases how this contributed to the poverty experienced by Native Americans, this relationship was pointed out as early as 1928 with the famous Meriam Report (Meriam 1928). And later in 1934 with D.S. Otis’ “The Dawes Act and the Allotment of Indian Land presented to hearings before the House of Representatives Committee on Indian Affairs (Otis 2014). Both of these studies contributed to the eventual demise of the Dawes act in 1934 with the passing of the Indian Reorganization Act (IRA). The extent of the damage would continue to be documented the most well researched and most brutal excoriation was in the 1935 National Resources Board: Land Planning Committee’s report (Wilson 1935) which called for the restoration of 25 million acres of land to make Native Americans self-sufficient. Despite this well researched recommendation, the Federal Government restored only 4 million acres – much of it marginal lands (Philp 1983). Furthermore, the issuance and fee patents and leases continued well into the 20th century leading the state of Native American Agriculture experienced today.
Background on Fee Lands on Native American Reservations
According to Section 5 of the Dawes Act signed into law February 8th, 1887, allotments that were issued to Tribal members were to be held in trust by the United States Government for a period twenty five years. This protected the land from taxation and sale. After this period, the Government would issue a patent to the allottee or their heirs. The act reads as follows:
United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period.
It took less than five years before this provision was amended to remove the restriction on issuing fee patents on inherited lands. The Act of May 27, 1902 (32 Stat. 245-275) otherwise known as the Dead Indian Act allowed the heirs of a deceased allottee to sell the inherited lands after being issued a fee patent by the Secretary of Interior. Five years later this authority was broadened again with the Burke Act of May 8th, 1906 (34 Stat. 182) which expanded the authority by adding the to sell the lands of deceased indians with the proceeds going to heirs. These acts, along with the act of May 29th, 1908 (35 Stat. L. 444) and the act of June 25th, 1910 (36 Stat. L. 855-856) were responsible for the sale of over 2,449,736 acres of inherited lands between the periods of 1903 to 1934.
The liquidation of allotted lands began with the the Burke Act of 1906 which authorized the secretary of Interior to remove trust protections and issue fee patents to Native Americans that are considered “competent”. The Act reads:
Provided, That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs, at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent:
Just one year later, the Act of March 1, 1907 (34 Stat. L. 1015-1018) expanded this authority by giving the Secretary the power to approve the sale of lands of allottees considered “non-competent.”.
That any non-competent Indian to whom a patent containing restrictions against alienation has been issued for an allotment of land in severalty, under any law or treaty, or who may have an interest in any allotment by inheritance, may sell or convey all or any part of such allotment or such inherited interest on such terms and conditions and under such rules and regulations as the Secretary of the Interior may prescribe.
The power of the Secretary of Interior was further expanded through the acts of May 29th, 1908 (Stat. 35 L. 444) and June 25th, 1910 (36 Stat. L. 855-856) and Feb. 14th, 1913 (37 Stat. L. 678-679). Combined, these acts accounted for the sale of over 1,280,526 acres of allotted land between 1908 and 1934. During this same period trust protections were removed from an additional 19,495,207 and were still held by their original allottees (Wilson 1935). At the moment, it is unknown how many of these lands have since been sold-off to non-natives.
Despite the original intent of the Dawes legislation to enable native americans to “own the lands he cultivates,” it was widely understood by government officials at the time that issuing a fee patent was almost a guarantee that those lands would be liquidated within a few years (McDonnell and 1952- 1991; Carlson 1983; Macgregor, Hassrick, and Henry 1946; Means 2007; Hakansson 1997; Wilson 1935). In his 1913 Annual Report, the Superintendent of the Pine Ridge Reservation writes:
It is still the conviction of this office that the issue of a patent in fee for a portion of an Indian’s land who is judged as being competent or near-competent, is the proper procedure in dealing with the land question among the Indians…Even if the proceeds derived from the dispossession of the land are squandered he still has plenty of land left and he may have learned a few lessons that will prove of value in the future.” (Department of the Interior, Annual Report of the Pine Ridge Agency, SD, August 1, 1913)
Axel Johnson, superintendent for the Omaha reservation noted that only 13% of those who received fee patents used their land productively; 7.1 percent of those who sold their land used the proceeds wisely and; 80% had “little or nothing to show for their lands” (McDonnell and 1952- 1991).
While the practice of forced-fee patenting was supposed to end with the Wheeler-Howard Act the secretary of interior still had the power to issue fee patents to individual land owners upon petition. During the post WWII relocation era where federal policy shifted to encourage Native Americans to move off Reservations and a fill the growing need for wage laborers in urban areas of the United States, the BIA approved almost all requests for fee patents. According to Philip (1983) between 1948 and 1957 federal protection was removed from over 2.5 million acres of individual trust lands (Philp 1983).
Research on the Impacts of Fee Patenting on Native Agriculture
It is not fully understood what impact fee-patenting had on the lives and livelihoods of Native Americans but there have been some scattered attempts. The most direct impact of fee patenting and leasing was the alienation of agricultural lands from allottees and the corresponding influx of white farmers and ranchers increasing compete over already scarce resources and markets (Means 2007).
Individuals who received fee patents for their lands often became the victims of unscrupulous land traders. (Means 2007) cites a 1917 report ordered by the Commissioner of Indian Affairs to investigate the sale of fee patented lands which found that despite the fact that the “best elements” of the Reservation had received fee patents, these same individuals often became victims of “mortgage swindles” and ended up losing their lands out of default.
Carlson (1983) looked at the relationship between the rate of the liquidation of Indian lands and the relative price of agricultural lands coming to the conclusion that “[t]he removal of restrictions on the sale of Indian land and the sale of actual allotments was closely tied to booms and busts in American agriculture, with the most land sold or made available for sale in periods of high agricultural prices.” he concludes that while the original intent of the Dawes may have been to support land ownership by Native Americans this policy was warped by the interests and pressure of white settlers seeking agriculture lands (Carlson 1983).
Using data from the BIA Natural Resources Information System (NRIS) and Agriculture Census, Anderson and Lueck (1992) compared agricultural productivity on fee-simple (fee-patented) lands vs. trust lands on 39 Reservations and found that productivity is 85-90 percent lower on tribal trust lands and 30-40 percent lower on individual trust (allotted lands). The control for differences in producers they did a similar study and compared native and non-native producers both operating on fee land. The data showed that native producers are generally more productive. They conclude that “the inability to use trust land as collateral, the transaction costs resulting from multiple owners of small parcels, and the inability to alienate trust lands all make it difficult to maximize land rents. On tribal lands, these problems are compounded by the public choice problems inherent in political decisions unconstrained by constitutional limits (Anderson and Lueck 1992).”
Village Earth (2017) analyzed the distribution of fee-patented lands on the Pine Ridge Indian Reservation in South Dakota relative to prime agriculture lands as classified by the NRCS Land Capability Data and discovered that “even though fee lands account for less than 31% of lands on Pine Ridge they occupy over 53% of the prime agriculture lands (Bartecchi 2017).” Our data, consistent with (Carlson 1983) suggests that the issuance of fee patents prior to 1934 was not random but rather a mechanism to liquidate prime agriculture lands to white settlers.