Michael C. Blumm and Adam Eno have posted “Tribal Co-Management in the Biden Administration: Affirming a Commitment to Honor Tribal Voices on Ceded Lands” on SSRN.

Here is the abstract:

Native American Tribes transferred to the United States more than two billion acres of land over a century-and-a-half, as the federal government acquired land for white settlement. The land cessions left the Tribes with just 2.6% of the homelands. Most of the land ceded was eventually settled, but a significant portion was not and is now managed as federal public lands under supervision of a variety of federal agencies. Today, the U.S. has some 640 million acres in federal land ownership, about 28% of the total lands of the country. The Biden administration has taken significant, unprecedented steps to involve tribes in the management of their ceded lands. Implementation of the Biden initiatives may revolutionize public land management, although the process of instituting Tribal consultation and co-management is still underway. This article explains the Biden efforts at co-management, highlighting several on-the-ground initiatives. The article maintains that a proper interpretation of the land cession agreements-consistent with the judicial canons of construction for federal agreements with Tribes-would conclude that the tribal conveyances to the U.S. included an implicit promise that ceded lands that failed to achieve the settlement purpose would be managed with Tribal participation, in order to ensure the protection of important Tribal cultural, subsistence, and economic resources. Although the Biden initiatives are a welcome beginning to fulfilling this neglected promise, since they are merely implementing what should be seen as an implicit servitude demanding a Tribal voice in their unsettled, ceded lands, they should not be reversible by a subsequent administration.