V. Indigenous Nations & Public Lands

This HISTORY is an ongoing personal project that has evolved from a number of volunteer presentations. It is a draft and not for attribution. All comments and corrections welcome.

 14.INDIGENOUS NATIONS/First Peoples

This history has touched on state and federal rights and their role in fish and wildlife conservation. Tribal Nations represent a third entity that must be recognized for the acknowledgment of their first people’s status, for their sovereign rights, and for their vital role in conservation of natural resources. 

The Columbian Exchange

The Columbian Exchange references the widespread exchange of plants, animals, disease, ores and metals, culture, ideas, technologies, and human populations between the Old World (Afro-Eurasia) and the New World (the Americas) following Christopher Columbus’ voyage in 1492. The exchanges ranged from purposeful (crops such as potatoes, maize, tobacco) to the accidental and unintended (e.g., earthworms, rats, and diseases). European contact with New World indigenous populations brought smallpox, measles and other communicable diseases that resulted in an 80-95 percent reduction in the number of Indigenous peoples of the Americas from the 15th century onwards.[98] 

As Roxanne Dunbar-Ortiz notes “the institutions of colonialism and methods for relocation, deportation, and expropriation of land had been practiced, if not perfected, by the end of the fifteenth century.” Prior to 1492, European peasants were commonly forced off the land and had only their labor to offer in return for food and shelter. The nations of Ireland, Scotland, Wales were forcefully held under the rule of English monarchies. Much of Europe suffered from scarcity and famine, a driving force for the emigrations from Europe to North America. In the decades and centuries following 1492, the vast amount of wealth acquired through the removal of indigenous peoples and extracted by the forced labor of Africans gave rise to western Europe’s nation-states.[99] 

The first European explorers and settlers considered the Americas the “New World” but in fact they were stepping foot onto lands that were well settled and culturally rich. In 1492, some 75 million people lived in North and South America, 15 million more than in Europe at the time. In 1503, Amerigo Vespucci observed, “I have found a continent more densely peopled and abounding in animals than our Europe or Asia or Africa.”[100]

Unfortunately for the indigenous nations residing in North America, the Spanish, French, Dutch, and English came to see their own prosperity and good health and the terrible sicknesses suffered by the natives as signs from God, as evidenced by the following two quotes recounted by historian Jill Lepore: “Touching these savages, there is a thing that I cannot omit to remark to you,” one French settler wrote: “it appears visibly that God wishes that they yield their place to new peoples.” And John Winthrop, newly arrived on the Mayflower to New England in 1630, “The natives, they are all dead of small Poxe, the Lord hathe cleared our title to what we possess.”[101] 

"Just" War or Voluntary Consent?

During earliest colonial days, the Spanish, French, British, and Dutch dealt with the newfound "Indians" in North America in different ways depending on their own perceived advantage.[102] Theologian Francisco de Vitoria (1493-1546) suggested that native peoples were the true owners of the land, and the Europeans could only claim title to their lands with a “just” war or voluntary consent.

Any such principled relationships with Indigenous Nations, as espoused by Vitoria, were totaling eclipsed by European and colonial political and economic interests. By the mid-1700s, dozens of bounty proclamations had been enacted, encouraging white colonists to kill Indians. In 1755, for example, Spencer Phips, lieutenant governor of the Province of Massachusetts Bay issued a proclamation declaring the Penobscot people enemies, rebels, and traitors to King George II, and offered a bounty for every scalp of a male Indian presented and lesser amounts for those of women and children.[103] Later, the policies shifted to the wholesale removal of all Indigenous people that stood in the way of “progress.”[104] These efforts intensified in the 19th century, including the forced migration of tens of thousands of tribal members in the southeastern U.S. to Oklahoma along the “Trail of Tears.”

Today Indigenous people in the United States have lost nearly 99 percent of the land they historically occupied. In addition, 42.1 percent of these tribes have no present day federally- or state-recognized tribal land base. Of the tribes that still have a land base, those lands are an average of 2.6 percent the size of their estimated historical area. Further, many tribes were forced onto new lands shared by other, often culturally dissimilar, tribes. Lastly, many present-day tribal lands lie far from their ancestral lands.[105]

Sovereign Nations

The 574 federally recognized Native American tribes possess distinct governance powers, separate and apart from federal or state governments.[106] These tribes also possess extensive property rights in land and natural resources, both on-reservation and off. These rights arise from legal sources apart from rights held by non-Indians. The government-to-government relationship that exists between tribes, states, and the federal government imposes duties of good faith and requires state and federal agencies to interact directly with tribal nations on a governmental basis, not merely as a segment of the public. The precise scope of the tribal rights and how they mesh with state and federal powers has been a source of conflict that continues today.[107]  

Today, even given the forced diasporas, Indian tribes retain significant landholdings that represent a rich cross-section of North America’s ecosystems. In the United States, tribal nations manage aquatic resources and habitats on 56 million acres of tribal trust lands, 44 million acres of Alaska Native lands, and particularly in the Great Lakes and Pacific Northwest regions, large areas outside of reservations where tribal hunting, fishing and gathering, rights are guaranteed by various treaties with the United States. These lands include valuable fish and wildlife habitats that support flora and fauna that are integral to the physical, social, cultural, economic, and spiritual well-being of tribal communities as well the larger geographical region.[108]

Reserved Rights

Consistent with the reserved rights doctrine and numerous federal treaties, laws, and court decisions, tribes retain natural resource management responsibility on tribal lands and elsewhere where treaty or similar rights exist. This responsibility is exercised consistent with the goals and priorities set by tribal communities themselves. Despite many continuing challenges and unmet needs, the majority of tribal natural resource management programs are based upon a sound foundation of culturally appropriate principles, as well as upon sound biology and science.[110]

The Department of the Interior is the primary trustee regarding the assets and resources that the United States holds in trust for tribal governments and their members (e.g., reservations and ceded territory fishing and hunting rights). The U.S. Fish and Wildlife Service provides a wide range of assistance to more than 200 tribes across the United States in support of Native American management of tribal lands and treaty/traditional use areas. Each tribal obligation represents a unique set of responsibilities and interests.[111]

The vested rights held by specific tribes to take fish and game off their reservations has resulted in recurrent disputes that have led to confrontation, legal actions, and occasional violence. In the late 1980s, for example, tribal members exercising their treaty fishing rights in northern Wisconsin became the targets of heated protests. Tribal members were subjected to name-calling, rock-throwing, harassment, and assault. The issue was tribal members being allowed to fish and spear walleye outside of existing state fishing regulations and disagreement on the status of the walleye fishery. To resolve the conflict, a joint fishery assessment was undertaken by federal, state, and tribal agencies in 1990 to determine if tribal treaty rights were harming the fishery. In its 1991 report, “Casting Light Upon the Waters,” the committee concluded that the tribal treaty fishing was well-managed and well-regulated, and caused no harm to the overall fishery. 

SIDEBAR- Casting Light Upon the Waters

The CSKT Compact

The CSKT Compact is a water rights agreement between the Confederated Salish & Kootenai Tribes (CSKT) of the Flathead Indian Reservation, the State of Montana, and the United States. In 1908, the Supreme Court’s decision in Winters vs. United States upheld that when the United States reserves a piece of land for a specific purpose (an Indian reservation or a wildlife refuge, for example), the amount of water required to fulfill that purpose is implied.[112]  These "reserved rights" are based in Federal law.

In 2015, the CSKT Water Compact was approved by the Montana Legislature. In exchange for the CSKT relinquishing legal claims to thousands of off-reservation water rights, the compact allocates $1.9 billion to a trust fund dedicated in part to rehabilitating the Flathead Indian Irrigation Project and transfers ownership of the National Bison Range back to the tribes. With state approval, federal action was next required as the compact was an agreement between two sovereign nations (U.S. Government and the CSKT). Notably, failure to ratify the compact would entitle tribes to file additional water right claims both on the reservation and within their aboriginal territory and the adjudication of thousands of tribal water right claims would be opened up across the state.[113] Congress approved the compact in 2020 and Secretary of the Interior Deb Haaland formally executed the compact in September 2021.

Funding Woes

A lack of funding is the most commonly identified barrier to improving fish and wildlife conservation on tribal lands. Tribal environment and natural resource management programs are particularly vulnerable to budget reductions or reallocation of federal funds. In addition, tribes are not eligible to directly receive P-R and D-J funds.

The loss of what might be considered a small amount of funding to other agencies can have a major impact and amount to de facto elimination for tribal programs. Jamie Dolan, University of Arizona, surveyed 37 western United States tribes, finding that 86 percent managed their own fish and wildlife programs, 73 percent reported healthy fish and game populations, and 66 percent were meeting program goals; but only 16 percent had adequate funding.[114] Not only does this undermine treaty responsibilities, but it also has an impact on natural resources whose benefits extend beyond reservation boundaries.

To gain a fuller understanding of tribes and their role in fish and wildlife conservation, one needs to determine the legal status of each individual tribe, as they are sovereign entities that cannot be lumped together. The term “Native American” or “Indian” defines little, but rather the tribes recognize themselves as Assiniboine, Sioux, Blackfeet, Salish, Chippewa, Kootenai, or dozens of other tribal cultures. There is no single approach to all tribes, but rather a recognition that each tribe is its own country and its own culture.

This history just barely scratches the surface of the history, culture, and fate of Indigenous Nations in the United States. For a greater understanding and appreciation consider these: Dee Brown, Bury My Heart at Wounded Knee; Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United State; Patricia Limerick, Legacy of Conquest, and David Treuer, The Heartbeat of Wounded Knee.

SIDEBAR- Tribes and wildlife conservation

We now turn to the acquisition, disposal, and reservation of the Public Domain.

15. THE PUBLIC DOMAIN

A total of 1.8 billion acres was acquired the United States with two-thirds granted to individuals, corporations, and the states and the remaining one-third set aside for national forests, wildlife refuges, national parks and monuments, and other public purposes. An understanding of the history of our public lands is essential to their present and future management. Their history is best summarized in three stages: acquisition, disposal, and reservation.[115]

Acquisition

In total, the federal government “acquired” 1.8 billion acres in North America. The term “acquired” must be understood in the context that the vast majority of North America was already occupied by one or more indigenous nations whose lands were subsequently colonized by European nations and expansion of the United States. In this context “acquisition” was accomplished by the relocation and deportation of indigenous peoples, and expropriation of their lands by European Nations. In turn, these lands were “acquired” by the United States through purchase, treaties, and wars and then settled with little to no regard as to the property rights or tenure of Indigenous people and long-resident Hispanics.

Federal land acquisition was accomplished in eight major phases from 1781 to 1867. The resulting 1.8 billion acres of land comprise the public domain lands whose disposal and reservation have profound impacts on today’s landscape.

 Disposal

With the cession of the western lands, the federal government had one resource in abundance – land. Congress now had to grapple with how best to administer this land, organize settlement, form new states, provide for public education, and repay the burgeoning national debt. Over the coming decades, of the 1,840 million acres in the original public land domain, 1.275 million acres would be distributed to individuals, states, veterans, railroads, and others.

Beginning with the state western land cessations the cash-strapped federal government began immediately to attempt to sell off its public lands. The Land Ordinance of 1785 required all lands to be surveyed and sections of 640 acres sold at auction. Revenues from these land sales helped reduce the nation’s debt and tax burden though the resulting land rush led to a great deal of land speculation, economic panics, and continuing debate on who should benefit from the land sales (e.g., land companies or cash poor farmers).

At the outbreak of the Revolution, the Continental Congress and states offered land bounties to recruits who joined the army and navy. The federal government offered the same incentives used to raise an army for the War of 1812. Over 61 million acres of public domain lands were granted to veterans as compensation for their service.

Responsibility for disposal of these lands fell to the General Land Office (GLO) charged with preparing the lands for sale, selling them impartially to the highest bidder at public auction, collect the monies, giving good and clear title, and keeping complete records. Disposals were governed by literally thousands of laws whose administration was complex, messy, and commonly marked by fraud and speculation.

Grants to States. A total of 328 million acres of land were granted to the states. In exchange for giving up all claims to federal public domain lands within its borders, each new state that joined the Union received large land grants of public domain. These lands were to be sold or leased by the state to help raise funds for public schools, colleges, universities, and other state public institutions. The grants were of two types: 1) quantity grant lands where the state could select lands from the public domain within its boundaries, and 2) designated school sections in each surveyed township. Depending on the date of statehood and the state’s size, grants to western states ranged from 2 million to 10 million acres.[117]

Homesteading. To encourage the settlement and development of the public domain west of the Mississippi River Congress began passing a series of laws, including the Homestead Act (1862), Mining Law of 1872, Timber Culture Act (1873), and Desert Land Law Act (1877). Under the Homestead Act of 1862 heads of households, widows, and single persons over 21 years old could apply for 160 acres of public domain. A land patent would be issued after five years of cultivation and residence or, alternatively, a cash payment for the minimum price per acre. Subsequent homestead acts expanded the size of land grants to as much as 640 acres and more than one-quarter of the public land domain was disposed of under the various homestead acts.

Grants to Railroads. To help finance railroad construction and to generate economic activity, Congress authorized dozens of land grants to railroad companies (Map). The companies typically received odd-numbered sections of federal land along each side of the rail bed extending out 10 to 80 miles on each side of the tracks. The railroad companies were expected to sell the land, which would boost the economy of the area.  Railroad land grants also commonly included “indemnity lands,” providing an additional grant of lands beyond the primary grant, from which a railroad could select land to substitute for any land within their grant found to be deficient, often due to prior settlement. From 1862 to 1871, Congress granted nearly 128 million acres to corporations for the construction of railroads.

In 1864, just months after Montana became a territory, the Northern Pacific was granted 20 sections for each mile of railroad constructed in a given state, and 40 sections for each mile constructed in territories. In Montana—15 million acres plus an “indemnity band” of 26 million nonrailroad grant acres fanning out 50 miles in both directions from the railroad, totaling nearly 50 percent of Montana.

In 1869, a grant of land was made to the Oregon and California Railroad Company and the Coos Bay Wagon Road Company comprising a 60-mile-wide swath of checkerboard public domain lands in western Oregon. The grant specified that the lands were to be sold to actual settlers—160 acres for $2.50 an acre—with the resulting revenues used to finance road construction. When it became apparent that the companies violated the terms of the grants, the federal government sued for repossession and in 1916 2.5 million acres of these lands returned to federal ownership.[118]

As Marion Clawson observes, “the process of land disposal was a lusty affair—a headlong, even precipitous process, full of frauds and deceits, but one which transformed a great deal of land into valuable private property—and one that built a nation.”[120]

Reservation

Mistreatment of public rangelands and the loss of timberlands led to increasing calls for reform. In response to rapid destruction of timber and rapacious private interests destroying the public domain, Congress began to reserve select lands rather than dispose of them. The excesses of the disposal process began to lead to the permanent reservation of public lands to provide a larger public benefit.[121]

While the efforts of outgoing president John Quincy Adams to conserve live oak trees as a future source of timbers for U.S. Navy ships in Pensacola Bay, Florida failed, a trickle of reservation would turn into a flood. In 1832 the United States established the Hot Springs Reservation, Arkansas—the first time land is set aside by the federal government to preserve its use as an area for recreation. In 1864, the U.S. Senate granted a tract of federal land to the State of California “known as Yosemite Valley… with stipulation that the premises shall be held for public use, resort, and recreation… for all time.” Up until that point, Congress and the federal government had viewed the federal estate, amassed by purchase, treaty, or conquest, as land to be conveyed or sold to individuals for their own economic use.[122]

In 1872, Yellowstone is established as the country’s first national park “for the benefit and enjoyment of the people,” eventually leading to the National Park Organic Act and to the National Park System. In 1891, the Forest Reserve Act provided the president the right to reserve public domain forestlands to ensure a future supply of timber--President Benjamin Harrison created the 1.25 million-acre Yellowstone National Timberland Reserve, the first national forest which eventually led to the creation of the National Forest System. In 1903, President Theodore Roosevelt began the practice of withdrawing federal lands to protect wildlife habitats, which led to the National Wildlife Refuge System.

The presidency of Theodore Roosevelt, 1901-1909, would an apogee of public domain reservations with a total of 148 million acres. While president, President Roosevelt created or enlarged 150 national forests; designated 16 national monuments (including Devils Tower in Wyoming and Grand Canyon, Arizona), and established 51 wildlife refuges in 17 states and three territories across the map, beginning with Pelican Island Federal Bird Reservation in Florida.

Much of the remaining public domain was set aside as “Multiple Use Lands” where logging, livestock grazing, mining, water development, wildlife conservation and recreation were all objectives of land management. In practice commodity-orientated used historically predominated, often to the detriment of wildlife and recreation. In 1934, Concern over the overgrazing of western rangelands led to the Taylor Grazing Act and ultimately to establishment of the Bureau of Land Management. Additional withdrawals have been made for Department of Defense military reservations, public works, and for other federal purposes.

Today, the National Park Service, the U.S. Forest Service, the U.S. Fish and Wildlife Service, and Bureau of Land Management manage 619.7 million acres in the United States, largely in the 11 western states and Alaska. 

While the Homestead Act and similar laws have been repealed, the federal government is still in the leasing business, and to lesser extent the disposal business. Lands are still patented under the General Mining Law of 1872, and the Bureau of Land Management manages some 25.7 million acres under oil and gas leases and 458,669 acres for coal mining.[123]

Today the nation’s public lands are managed by a number of land management agencies, each created or assembled individually with a complex history of authorizing statutes, organic acts, and other laws and regulations.[124] A summary:

National Forest Service

The Forest Service (FS) was established in 1905 under the Department of Agriculture. The Forest Service (FS) was established in 1905 under the Department of Agriculture. The agency is charged with managing the 193 million acre National Forest System, conducting forestry research, and providing assistance to nonfederal forest owners. In 1905 and. The National Forest System includes 154 national forests; 20 national grasslands; and various other federal land designations in 43 states, Puerto Rico, and the U.S. Virgin Islands. Most NFS land is in the West, although FS manages more than half of all federal lands in the East. The first forest reserves were established under the Forest Reserve Act of 1891 to protect the lands, preserve water flows, and provide timber.

The Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. §§528-531) expanded the purposes of national forests to include livestock grazing, wildlife and fish habitat, and recreation. The act directed that these multiple uses be managed in a “harmonious and coordinated” manner and “in the combination that will best meet the needs of the American people.” The act also directed FS to manage renewable resources under the principle of sustained yield, meaning to achieve a high level of resource outputs in perpetuity, without impairing the productivity of the lands. In addition, Congress directed FS to conduct long-range planning efforts to manage the national forests. Balancing the multiple uses across the National Forest System has commonly led to conflicts and lawsuits regarding management decisions and priorities.

National Park Service

The National Park Service (NPS) was created in 1916 under the Department of the Interior. Its mission is to preserve unique resources and provide for their enjoyment by the public. 

There are some 432 units and 80 million acres in the NPS System including national parks, national preserves, national historic sites, national battlefields, and national recreation areas, located in all 50 states and the District of Columbia. NPS laws, regulations, and policies emphasize the conservation of park resources in conservation/use conflicts, and the system’s lands and resources generally receive a higher level of protection than those of BLM and FS. The tension between providing recreation and preserving resources has produced many management challenges for NPS.

The Antiquities Act of 1906 is one important conservation tool used to safeguard and preserve federal lands and cultural and historical sites. Since its passage, 17 presidents have designated 158 national monuments under its authority with the majority managed by NPS.

U.S Fish and Wildlife Service

The Fish and Wildlife Service (FWS) was created in 1940. Its ancestry, however, dates back to the U.S. Commission on Fish and Fisheries (Department of Commerce, 1871), the Division of Biological Survey (Department of Agriculture, 1896) and the first national wildlife refuge (Pelican Island, Florida) established by executive order in 1903. In 1940 the Bureaus of Fisheries and Biological Survey merged into Fish and Wildlife Service. In 1966, selected FWS-administered lands were aggregated into the National Wildlife Refuge System (NWRS) which includes 89 million acres of wildlife refuges, waterfowl production areas, and coordination areas in the 50 states (of which 77 million acres are in Alaska).

In addition to administering the NWRS, FWS enforces various wildlife laws, protects endangered species, and manages migratory birds. In contrast to the multiple-use missions of FS and BLM, FWS manages the NWRS through a dominant-use mission—to conserve plants and animals for the benefit of present and future generations. Wildlife-related activities (hunting, fishing, bird-watching, education, etc.) are considered “priority uses” while other uses (timber cutting, grazing, etc.) may be permitted, to the extent that they are compatible with the NWRS mission and purposes.

The Bureau of Commercial Fisheries was transferred to the Department of Commerce as the National Marine Fisheries Service in 1970. FWS shares management authority with NMFS on certain marine mammals, anadromous fish, and species listed under the Endangered Species Act.

Bureau of Land Management

The Bureau of Land Management (BLM) was formed in 1946 by combining two existing Department of the Interior agencies, the Grazing Service and General Land Office. 

BLM currently administers more federal lands than any other agency—258 million acres. BLM lands are heavily concentrated in the 12 western states. As defined in the Federal Land Policy and Management Act of 1976 (43 U.S.C. §§1701 et seq.), BLM management responsibilities are similar to those of FS—sustained yields of the multiple uses, including recreation, grazing, timber, watershed, wildlife and fish habitat, and conservation. For instance, about 155 million acres are available for livestock grazing, and about 34 million acres are managed by BLM as National Conservation Lands. In addition, BLM administers onshore federal energy and mineral resources, covering approximately 710 million acres of federal subsurface mineral estate and the Wild Free-Roaming Horse and Burros Act (1971).

The majority of BLM lands were the arid left-overs from earlier Homestead acts and other withdrawals. Up until the 1934 passage of the Taylor Grazing Act no statute governed the unreserved and unappropriated public domain. The act sought to “stop injury to the public grazing lands by preventing overgrazing and soil deterioration, provide for their orderly use, improvement, and development” and “stabilize the livestock industry dependent upon the public range."  

Land Grants and School Lands

The General Land Ordinance of 1785 established policies that governed the survey and disposal of the public domain. At the urging of Thomas Jefferson, a rectangular cadastral survey was adopted to map the public domain from Ohio westward. The survey divided the public land domain into townships comprising 36 one-mile square blocks (640-acre sections) that are still easily discerned today in the layout of roads and land ownerships. It is literally the squares that one views while flying over much of the western U.S.

The Northwest Ordinance of 1787 created a system of territorial governments and a process for transitioning territories into statehood. It also provided for the system of granting land to new states to support public education--granting section 16 in each thirty-six-square mile township “for the maintenance of public schools within the said township.” In 1803, Ohio was the first “public domain” state admitted to the Union, and the first to receive a section 16 land grant in support of schools. With the admission of California (1850) and Oregon (1859), Congress began to grant two sections out of each township to the states (sections 16 and 36). Utah, Arizona, and New Mexico (1896-1912) were granted four sections (2, 16, 32, & 36) on their admission as states. [125]

The Morrill Act of 1862 provided each eligible state within the Union 30,000 acres of public land to finance public education. The land was then sold by the states and the proceeds used to fund public colleges that focused on agriculture and the mechanical arts. In 1890, the Act was extended providing additional land grants to support higher education, including an additional 100,000 acres to Montana.  In all, 69 “land grant” colleges have been funded by these grants including Montana State University and the University of Montana.

Montana was admitted to the Union under the Omnibus Enabling Act of 1889. Upon admission, Congress granted the state sections 16 and 36 in each township for support of “common schools.” The Enabling Act required Montana place land sale revenues in a permanent fund set up solely for the benefit of the institution for which the lands were granted and required the state to obtain “full market value” for the disposal of any estate or interest in trust lands. Of the original land grant of 5.7 million acres, Montana has retained 5.2 million acres as state trust lands, managed by the Montana Department of Natural Resources & Conservation, to produce revenues for trust beneficiaries. They also provided significant wildlife habitat and recreational opportunities.[126]

General Mining Law of 1872

While not a major method of deposals, at least in terms of overall acreage, the impact of the General Mining Law of 1872 has left its mark on today’s landscape.

The California Gold Rush of 1849 and discovery of other lode (hard rock) and placer (gravel) deposits in the western United States lead to conflicts over access, ownership, and water rights. In response miners developed their own governance. This informal governance became more-or-less universal in the West and was commonly supported by state and territorial governments. However, much of the mineral deposits in the West were found predominantly on federal lands and there was no law governing the transfer of rights to these minerals from public ownership to the miners. One side of the debate viewed miners as illegal squatters robbing the United States of valuable assets (i.e., gold and silver) while the other side argued that miners and prospectors were performing valuable services by promoting commerce and settling new territory.

The General Mining Law of 1872, signed into law by President Ulysses S. Grant, codified the informal system of acquiring and protecting mining claims granted free access to individuals and corporations to prospect for minerals in public domain lands, and allows them, upon making a discovery, to stake (or “locate”) a claim on that deposit. A claim gives the holder the right to develop the minerals and maintain the claim by satisfying an annual work requirement; in 1992 Congress began to require an annual holding fee for each claim. Claimants enjoy the “right to mine,” regardless of any alternative use, potential use, or non-use value of the land.

Equally important, the land can be “patented” to convey full title to the claimant. Once a claimed mineral deposit is determined to be economically recoverable, and at least $500 of development work had been performed, the claim holder may file a patent application to obtain outright title to surface and mineral rights in exchange for payment of relatively small filing and per acre fees.[127]

Not surprisingly, the Mining Law has been at the center of a continuing debate that largely centers on two central issues. First, the right to enter the public domain and freely prospect for and develop minerals is considered a giveaway of publicly owned resources because of the small amounts paid to maintain a claim and to obtain a patent. The Mining Law has no royalty provisions and the patenting process allows federal resources to pass into private hands for a pittance. Further, patent holders are under no obligation to mine, and can use the land in any manner they choose. Second, current structure of federal, state, and local laws and regulations do not provide adequate environmental protection. The Mining Law itself contains no environmental provisions and the western U.S. is littered with hundreds of thousands of abandoned mines. Loose regulations have allowed mining interests to enter public lands, mine the resources, and leave the reclamation to someone else. There are at least 140,000 abandoned hardrock mine features—such as the tunnels or toxic waste piles—cataloged on federal lands, and there may be more than 390,000 additional abandoned mine features on public lands yet to be identified.[128]

Legacy of the Public Domain

Alaska and the western conterminous United States, with the exception of Texas, are considered public land states. Not surprising when the federal government is the largest landowner in many of these states—30 percent of Montana, 42 percent of Wyoming, 85 percent of Nevada. The importance of public lands and how best to manage them is a common theme in these states. But the most valuable lands in terms of soils, water, and biodiversity are found on private lands. This is the legacy of historical settlement patterns in the mid- to late 1800s as ranchers and homesteaders claimed the best soils, best access to water, and most favorable climatic locations. Beginning in 1872, Yellowstone National Park, the first forest reserves and other public lands were carved out of the unclaimed remainder, not from the whole of the public domain. This pattern is clear today as private lands generally occupy the West’s valleys and river bottoms while the higher elevations and most arid lands are commonly the public lands.

A History Written on the Land

The following map of Park and Gallatin counties, Montana and northern boundaries of Yellowstone National Park graphically illustrates the lasting influence of 230+ years of federal land policy.

• Federal public lands: Forest Service, including designated wilderness (green), National Park Service (purple), and Bureau of Land Management (brown)

• State school lands (blue) arranged by township and other state lands (blue)

• The “railroad checkerboard” created by the Northern Pacific Railroad grant.

__________

ENDNOTES

[98] Nathan Nunn and Nancy Qian, “The Columbian Exchange: A History of Disease, Food, and Ideas,” Journal of Economic Perspectives (vol 24(2), 2010), 161-162. See also Charles Mann, 1493, Uncovering the New World Columbus Created, Alfred Knopf (2011): 6-7, 10-11.

[99] Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States, Beacon Pres (2014), 33-34.

[100] Jill Lepore, These Truths: A History of the United States, W.W. Norton & Company (2018), 14.

[101] Jill Lepore, These Truths: A History of the United States, 20.

[102] On the whole, indigenous individuals and peoples in North America do not consider “Indian” a slur but do prefer their Tribal Nation name in their own language, such as Diné (Navajo), Roxanne Dunbar-Ortiz, An Indigenous Peoples’ History of the United States, xiii.

[103] J. Axtell and W.C. Sturtevant, “The Unkindest Cut, or Who Invented Scalping,” The William and Mary Quarterly 37(July 1980): 452.

[104] Brian Czech, “American Indians and Wildlife Conservation,” Wildlife Society Bulletin (Vol. 23, No. 4, 1995), 568-569.

[105] Farrell et al, “Effects of land dispossession and forced migration on Indigenous peoples in North America,” Science 374 (6567, 2021).

[106] 86 FedReg 18552.

[107] Eric Freyfogle and Dale D. Goble, Wildlife Law, A Primer, 164.

[108] Sport Fishing and Boating Partnership Council, Programmatic Evaluation Activities of the U.S. Fish and Wildlife Service Fisheries Program, FY 2005-2009 (U.S. Fish and Wildlife Service, 2012), 46.

[109] Recognized December 2019 as the 574th federally recognized tribe in the United States.

[110] Sport Fishing and Boating Partnership Council, Programmatic Evaluation Activities of the U.S. Fish and Wildlife Service Fisheries Program, 46.

[111] Sport Fishing and Boating Partnership Council, Programmatic Evaluation Activities of the U.S. Fish and Wildlife Service Fisheries Program, 47.

[112] Winters vs. United States (207 U.S. 564 (1908)). Montana DNRC, The CSKT Water Compact has been enacted, https://storymaps.arcgis.com/stories/4faba73d1eca46678cf091f2636329ec.

[113] Visit http://dnrc.mt.gov/divisions/reserved-water-rights-compact-commission/confederated-salish-and-kootenai-tribes-compact for more information.

[114] Sport Fishing and Boating Partnership Council, Programmatic Evaluation Activities of the U.S. Fish and Wildlife Service Fisheries Program, 56.

[115] For detailed history: James Muhn and Hanson Stuart, Opportunity and Challenge, The Story of the BLM, Bureau of Land Management (1988).

[116]Data from: Bureau of Land Management, “Public Land Statistics, 2020” (2020), 3; Kristina Alexander and Ross Gorte, “Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal, and Retention,” Congressional Research Service (2007); Marion Clawson, The Federal Lands Revisited, Resources for the Future (1983), 26.

[117] Public Lands Foundation, “America’s Public Lands: origin, history, future (2014), 4-5.

[118] Marion Clawson, The Federal Lands Revisited, 19-20. Known as the “O&C lands,” they are managed by the BLM.

[119] James Muhn and Hanson Stuart, Opportunity and Challenge, The Story of the BLM, Bureau of Land Management (1988), 21.

[120] Marion Clawson, The Federal Lands Revisited, 25.

[121] Holly Fretwell, Who is Minding the Federal Estate, 7-8; Marion Clawson, The Federal Lands Revisited, 27.

[122] Chris Madson, “Why We Have Federal Land, the citizens and leaders behind our public land heritage.” Western Confluence, University of Wyoming (Fall 2018): 6.

[123] Congressional Research Service, Federal Land Ownership: Constitutional Authority and the History of Acquisition, Disposal and Retention1 (2007): 9.

[124] Information gleaned from Congressional Research Service, The Federal Land Management Agencies (2021), and other resources. 

[125] Peter Culp et al, Trust Lands in the American West: A Legal Overview and Policy Assessment, Sonoran Institute (2005), 6-9.

[126] https://dnrc.mt.gov/TrustLand/

[127] George Daffran, “Taking Back Our Land: A History of Railroad Land Grant Reform” (1998), in E. Alston and S.M. Smith, “Development Derailed: Uncertain Property Rights and Asset-Specific Investment“, Perc.org (2019): 8.

[128] Cody Nelson, “The dizzying scope of abandoned mine hazards on public lands,” High Country News, January 28, 2020.

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