Land Back

New Student Scholarship on Land Back, Land Grab Universities, and the Morrill Act

Matthew L.M. Fletcher

Melissa Fergusson has published “#Landback to Indigenous Peoples from “Land-Grab” Universities” in the Cornell Law Review. PDF

Here is the abstract:

The Morrill Land Grant Act of 1862 (Morrill Act) was the first federal legislation to fund public higher education in the United States, funding fifty-two land-grant universities (LGUs) that still exist today. While the purpose of the Act was to “democratiz[e] . . . education” focusing on the study of agriculture and mechanical arts, it created LGUs by taking Indigenous land. In 2020, High Country News issued an investigative report, “Land-Grab Universities,” documenting how LGUs were established both on occupied Indigenous land and through the sale of Indigenous land taken by treaty, land cession, or seizure, which provided seed money for the universities. While some LGUs have increased support for Indigenous students through tuition assistance or increased funding for Indigenous studies, none have implemented land return to Indigenous peoples.

This Note analyzes potential remedies to redress the taking of Indigenous lands by the Morrill Act in the context of the #LandBack movement. Part I discusses the Morrill Act provisions and impact as well as the historical context. Part II discusses the modern-day #LandBack movement and past #LandBack actions at the federal and state levels. Part III provides a survey of current responses from LGUs to their Morrill Act legacy. Part IV explains why #LandBack is needed to make amends to Indigenous peoples for the taking of their lands via the Morrill Act. Part V identifies #LandBack remedies that LGUs can take to recompense Indigenous peoples and provides an implementation framework. It also proposes legislative reform, including creating a cause of action for land claims, to compensate Indigenous peoples for the taking of their lands via the Morrill Act.

Kevin Washburn on Landback as Federal Policy

Matthew L.M. Fletcher

Kevin K. Washburn has published “Landback as Federal Policy” in the UCLA Law Review.

Here is the abstract:

Demands for the return of land to tribal nations have become much louder and more compelling in recent years. While “landback” has been part of federal policy for nearly a century, lawmakers and presidents from both parties have embraced landback initiatives more firmly in the last half century. But the quantity of lands returned is almost insignificant in comparison to the vast lands taken. Landback efforts are based in compelling moral claims. This Article summarizes the moral claims for landback by briefly recounting the widespread loss of land by Indian tribes through the nineteenth and twentieth centuries and highlighting the unique role of the federal government in this tragedy. It also showcases some of the tribal and federal counterefforts to the loss of land, including existing federal landback efforts that have returned millions of acres to tribes. The federal government has many tools available, and it should deploy them more effectively. Advocates must also be more strategic. Landback can be viewed in context with related federal initiatives, including renaming, comanagement, and costewardship, as well reservation expansion, retrocession, and other federal efforts to restore and expand tribal selfgovernance. These numerous related federal and tribal initiatives can support tribal landback and restorative justice efforts.

Arcoite and Johnson on Land Back Reduces Indigenous Poverty

Matthew L.M. Fletcher

Brigette Arcoite and Daniel K.N. Johnson have posted “Land-Back to Move Forward? The Measurable Relationship between Land-Back Movements and Economic Outcomes in Indigenous Communities within the U.S.” on SSRN.

Here is the abstract:

The land-back movement in its current state began in 2018 and has rapidly gained traction since. The main call in this movement is for the return of government owned ancestral lands to their Indigenous stewards. This paper quantifies the economic impacts of land-back movements on income and employment for over 1,700 Indigenous communities, using both panel data instrumental variables and endogenous treatment techniques. We find uniformly promising results (reductions in the percentage of citizens living on low incomes, and reductions in the unemployment rate) that recommend continued return of tribal lands not only for racial justice reasons, but as a catalyst for economic stability of populations living in proximity to Indigenous peoples.