Doable Reparations for Native Americans | Opinion

The government of Australia recently returned over 400,000 acres of rainforest to the Aboriginal people who have lived in the region for more than 50,000 years. According to a Queensland environmental minister, doing so "recognizes their right to own and manage their country, to protect their culture and to share it with visitors as they become leaders in the tourism industry." The United States government should follow suit.

As a landowner—2.3 billion acres or 28 percent of all land—the federal government is an abject failure. Mismanaged forests lead to devastating wildfires. Obstructionist management policies inhibit reasonable resource extraction. At the same time, government bureaucrats enter into corrupt sweetheart deals with other extractive industries.

We should recognize, as the Australians have, the right of Indigenous people to own and manage what was once their land, to protect their culture as they see fit and to share the bounty of that land with others who wish to trade with them. In short, the federal government should divest itself of all its landholdings—except military bases and national parks—and transfer ownership to Native American tribes.

This proposal raises significant questions, most pressingly, who gets what land?

History suggests an admittedly imperfect solution to such allocation questions—a deliberative process, merging something like the 9/11 compensation fund with a truth and reconciliation process.

An Anishinaabe tribal community member greets people
An Anishinaabe tribal community member greets people. KEREM YUCEL/AFP via Getty Images

An administrative body would assess the value of all federal lands to be divested and allocate those lands to the tribes. The administrator would weigh several factors in deciding the allocation of formerly-federal lands. These include proximity to historical lands, inter-tribal relations and equitable resource distribution.

These changes would yield far better land management. Private ownership, coupled with reasonable environmental regulations and tort liability, lead to better long-run stewardship of resources. This is particularly true when the private owners have Indigenous peoples' millennia-long relationship with the land. Dealing with newly-empowered private owners, rather than entrenched and protected bureaucrats, logging and mining companies will have to invest in cleaner extraction techniques, so that the new owners will be willing to license extraction.

Once the tribes receive their lands, the federal department in charge of managing tribal resources—the Bureau of Indian Affairs (BIA)—should be entirely eliminated. The history of relations between the tribes and the federal government is complicated, but it is undeniable that the tribes suffer under incompetent and corrupt management of the BIA to this day. Having appointed itself as trustee for Native American land, the government has utterly failed in its obligations. For instance, the U.S. government promised Native Americans that the proceeds from the leasing out of Indian land to mining or ranching businesses would be held in individual accounts for each land owner. When asked for the money in a lawsuit filed in 1996, the government could produce no adequate accounting of the $150 billion allegedly owed to Native Americans. In 2009, the government finally settled the case, Cobell v. Salazar. Native Americans should never again have to yield control over their destinies to inept government agencies as they have for over 100 years.

To aid the tribes in their transition to landowner status, the government could provide part or all of the BIA's annual budget—$3 billion in 2020—in payment to the tribes. Similarly, because the federal government would no longer be a landowner, part or all of the budgets of the Forest Service and Bureau of Land Management—a combined total of over $10 billion requested for FY 2022—could also be provided.

One might wonder what the political status of the tribes will be post-transition. We propose simplifying what has long been a complicated and uncertain relationship between the tribes and the government. Upon receiving their lands and initial payments, and the abolishment of the BIA and other federal agencies, the tribes would be freed from the treaties they were forced to sign with the United States government. Every tribal member would enjoy the same freedoms as all U.S. citizens, including the freedom to associate themselves together in whatever way they choose. They would be some of the wealthiest landowners in any locality or state, with the possibility of enriching those states and localities through meaningful trade.

Todd Henderson is a professor at the University of Chicago Law School. He teaches American Indian law and runs a clinic that works with various tribes.

Jeremy Kidd is a professor at Drake University Law School.

The views expressed in this article are the writers' own.