If you look at a map of an Indian reservation, you will most likely see a pattern that looks like a checkerboard. It represents an alternating pattern of land ownership within the reservation. You may have assumed that Tribes owned all the land within the boundary of their reservation—that would make the most sense and was clearly what was originally intended—but they often don’t.
Why is this? From 1830 to 1887, the U.S. government created the reservation system and tried to force Tribes into these limited areas so that lands could be opened for westward expansion. But they did not stop there. Congress then broke up the lands within the exterior boundaries of reservations and sold off individual parcels.
These (bad) historical decisions have significant modern day consequences. Conservation, landscape and wildlife management are very challenging when the Tribe has jurisdiction over non-contiguous acres. For example, a Tribe may have one acre, not the one beside it, and then again own the acre on the other side of that one. How is a Tribe to manage lands like this?
The idea of managing land health on alternating acres makes no sense. Nature does not understand or abide by our imaginary lines.
While some of the lands within reservations are privately held, many are also federal lands scattered throughout reservations. It is the latter that this essay addresses.
We must make it easier to return these lands from the federal government to Tribes. There are many aspects to the larger picture of land return that need to be discussed (and they will), but this essay focuses on just one piece of low-hanging fruit: the return of federal lands within the boundaries of reservations.
Congress has tried to fix the checkerboard problem before, but their solution has proven too cumbersome to implement, or at least the agency tasked with returning lands to Tribes has often not done so for one reason or another. As a result, the federal government may be supportive of a transfer and agree to it, it may make perfect sense, and yet it does not happen because of a bureaucratic or technical issue.
What happened to Indian Lands
Indian Tribes have lost about 97% of their lands since the arrival of Europeans. “Lost” is not the right word; they were taken by force, coercion, theft and broken promises. Tribal lands were in fact taken by treaty, as Tribes ceded lands in exchange for promises of safety, peace, medicine, or other things they wanted for their people. All of these treaties were eventually broken by the federal government in one way or another. Some Tribes, like mine—the Chickasaw Nation—were forcibly walked out of their homelands on the Trail of Tears.
This is the origin of the term “reservation.” Tribes were forced onto a small portion of their former lands (or in the case of my Tribe, removed to lands far away), thus “reserving” some of their ancient, aboriginal territory.
Not content to confine Tribes to reservations, Congress then passed the General Allotment Act of 1887, a law that divided reservation land into parcels for individual Native Americans. All lands not allotted to individuals were considered “surplus” and sold to non-Indians and even corporations. Congress somehow made this problem even worse by giving railroad companies alternating square-mile sections of land to encourage construction of railroads out West.
What Tribes have left today are about 56 million acres, mostly in reservations. Within these reservations, individuals and corporations still to this day own parcels, often in an alternating pattern,creating the checkerboard of landholdings. This makes it very difficult for Tribes to exercise criminal, civil and regulatory jurisdiction over their reservation lands. It also makes it very hard for them to protect the health of these lands. The idea of managing land health on alternating acres makes no sense, as key features of land health are the interconnectedness of the landscape and the balance of the ecosystem. Nature does not understand or abide by our imaginary lines.
We must make it easier to return these lands from the federal government to Tribes.
This very solvable problem has persisted for more than 100 years, yet here we are, still not having implemented the solution. The Department of the Interior owns the majority of these federal lands. Many Tribes have come to Interior over the years asking to have acreage within the reservation that is not being actively used or managed by the agency (sometimes called excess or surplus lands) returned to the Tribe. It sounds simple but is in practice very difficult, and unnecessarily so.
We have been here before. So why didn’t it work?
The Federal Land Policy and Management Act (FLPMA) was passed by Congress and made law in 1976. It declared that it is the policy of the United States to retain public lands in federal ownership and created a framework for “land use planning” that guides federal agencies. Because of this policy in FLPMA, there are limited ways to remove lands from federal ownership, and they usually involve public sale at fair market value or dedicating it to a use that will be available to the public.
Recognizing that Tribes should not have to buy back their own reservation and aboriginal lands (and that the cost to do so would be prohibitive), Congress included provisions in the General Property Act that permitted “excess” property within reservation boundaries to be transferred to Tribes. The law set out a seemingly simple solution: an agency must first declare property excess, then the General Services Administration (GSA) must transfer the property to Interior, which will then put it into trust for the Tribe. This seems like a good solution and indicates that Congress intended to solve this problem. However, there are three main problems with this excess property section of the General Property Act that have prevented it from being implemented effectively.
First, the procedures necessary to transfer the property are best described as byzantine. In 2022, the GSA issued a Guide to Using GSA Solutions for Tribes and Tribal Organizations. They were trying to simplify this process but ended up providing so little information on the crucial process for on-reservation lands that it all fit on one page.
In January 2025, on the final day of the last administration, the Bureau of Indian Affairs (BIA) issued a more detailed Handbook that sets out the steps of the process depending on whether the excess property is held by the BIA or another agency. However, the BIA process remains needlessly complex. The agency’s interpretation of “necessary” procedures, grouped into seven parts, consists of 24 steps (22 for lands held by agencies other than the BIA). This provides 24 opportunities to hold up the transfer process.
Here is one example: we discovered that interagency requests to transfer a piece of land back to a Tribe were being sent to an email address for someone who had long since left one of the agencies, leaving those emails sitting unopened. Excess property requests had been languishing as a result.
A more general example is that some Tribes would send a resolution that they are interested in receiving excess property (step two in the original BIA Handbook) and then wait years.
The true chokepoint however is probably step one, where the agency or bureau decides “property is no longer needed for its mission.” It is not in a federal agency’s DNA to decide that it no longer needs a building, a piece of land, a process, a form or a regulation.
This brings us to the second major issue with the excess property statute: the issue of what counts as “excess property.” The agency disposal process is the way in which it identifies and transfers or sells the property it no longer needs. Once an agency makes this determination, it submits a Report of Excess to the GSA. The basis for making the determination is that the agency “no longer has a mission need for” the property. This entire process depends upon a bureau or agency first declaring lands to be excess. If they don’t do this for any reason, the land won’t go back to the Tribe. End of process.
Successfully navigating the federal process should be easy and it should be common until all the lands within reservations have been restored.
This is where the necessary policy shift comes in: the agencies need to be directed to declare federal lands within reservations to be excess. Barring some conflicting use or entitlement, all lands within reservation boundaries should be restored to the Tribes. They should not be dependent on the benevolence of federal agencies to volunteer by way of the excess property statute.
The third major problem with the excess property statute is what is called “the special requirement for Oklahoma.” Although the full story is beyond the scope of this essay, Oklahoma Tribes were especially targeted and decimated post-Civil War in the search for oil, the land rush, and numerous other designs. Recognizing this, Congress created in the General Property Act a “special requirement” for Oklahoma Tribes that allowed the return of not just lands within current reservation boundaries but also lands within “former reservations” and contiguous to their trust lands.
This requirement for Oklahoma should be extended to all Tribes in the United States. Such parity is important to the government-to-government relationship, and there is even a federal statute requiring that Tribes be treated the same under law. At the very least, Congress must look at making this “special” requirement a requirement in general.
The cumbersome 24-step process, as well as the fact that Tribes are wholly dependent on federal agencies declaring property “excess” in the first place, are the reasons why these transfers are not common. The Congressional Research Service indicates that this process has been used twice by Tribes in South Dakota in 2020 and Alaska in 2021. There have been others, but we should not have to look so diligently for examples. Successfully navigating the federal process should be easy and it should be common until all the lands within reservations have been restored.
The problems with the process for transferring lands back to tribes are so fixable.
What do we do now?
The problems with the process for transferring lands back to tribes are so fixable. Here are some suggestions:
- Start by significantly streamlining the process to effectuate what Congress actually meant. Their message was “give it back.” Agencies love their processes but they are getting in the way of the mission. It can be fewer steps: notify Tribe of excess determination, Tribe accepts or declines, transfer.
- Another way to remove delays may be to make transfers automatic once the Tribe accepts, like the 638 contract process under the Indian Self-Determination Education and Assistance Act, in which a proposed contract goes into effect within a specific time period unless the agency objects.
- In accordance with the government-to-government relationship, a higher-level official should be made responsible for the return of property under the excess property statute.
- Agencies should declare all their property within reservations to be “excess” since they are in truth not essential to their mission; within a reservation they are the Tribe’s mission, unless the Tribe declines of course.
- Congress can and should make this happen with simple amendments, and they should expand the special requirement for Oklahoma to all Tribes.
There is so much to be said about giving land back to Tribes—as well as the significant benefits to the environment and landscape that come when the original managers of the land return to their place. While this essay discussed one critical tool, there are other statutes and ways to transfer land back to Tribes. Congress was headed in the right direction when it passed the excess property statute, but as a tool it has been blunted by misuse and disuse. It can and should be made better so that we can use the tools we have to work toward some semblance of land back.
