Landback through Land Reform

For centuries, indigenous people in North America have been violently oppressed, subjugated, and discriminated against by settler colonialists in what can only be described as a comprehensive physical and cultural genocide. This has left indigenous populations today a small fraction of what they once were, with their traditional rights and access to the land essentially eliminated outside of a few, relatively impoverished reservation areas. In recent years, it has become increasingly common to acknowledge the original indigenous inhabitants of land on which current activities take place. However, these rhetorical land acknowledgments are meaningless without concrete steps to address and rectify the theft and expropriation of land that took place.

A policy approach of returning control of land (“landback”) is a critical component of wider reparative program to address and redress the harms inflicted on indigenous communities. Already, some progress has been made in returning public and private lands to indigenous control. However, this process can and should be accelerated in various ways.

 Roughly speaking, there were two ways indigenous people lost their land in what would become the United States. One was simply outright theft, where settlers would use violence to displace indigenous communities and then enclose the land for private ownership and use. This was very common and violated even Western norms of jurisprudence. Given that settlers wanted to steal this land and dispossess the native people, illegality was no deterrent. 

The other way was when treaties were signed which gave settlers certain rights over the land. However, even in these cases, the concept of land rights was quite different between indigenous communities and European settlers. There was enormous diversity in cultural practices and conceptions across so many different indigenous peoples in terms of how land fit into their societies. Often land rights represented hunting rights or other usufructuary rights but did not represent permanent exclusive rights to land ownership in the Western conception of land ownership. Often the treaties signed with colonial and settler polities were signed under duress, and consent was not freely given. In short, essentially none of the current land in the United States has a title which is free and clear. Thus, in the interest of justice, a program of landback must be implemented to right this wrong.

One of the few modern examples of a landback program concerns South Africa. Like the United States, South Africa has its origins as a brutal, racist, settler-colony. Land was stolen and expropriated from the indigenous African people living there by white colonists and a legalized system of discrimination and segregation called “Apartheid” was enacted. After the end of apartheid in the early 1990s, a land reform commission was set up to transfer land from white landowners, who controlled almost all of the land in the country, to the Black population. The program largely relied on a “willing buyer-seller” model, in which any white farmer who sold their farm would sell it to a Black buyer (who was willing to buy it). However, this program has been a disappointment due to a lack of willing sellers and the general paucity of financial resources amongst the Black population (a legacy of Apartheid and colonialism). Similar problems would hinder or limit a “willing buyer-seller” model in the United States, so a different approach will be needed effectuate and accelerate land transfer to indigenous communities (Lahiff 2007, 2008).

First and foremost, land owned by public entities should be returned to indigenous communities free of charge wherever possible. In cases of land owned by private individuals or businesses where there was no original legal sale, any future sales of the land (and or property on that land) would have a right of first purchase by the indigenous communities with the best claim to the area. Land would be purchased based on the assessed value from property taxes to ensure that indigenous buyers do not overpay. Since land was taken with no legal basis, non-indigenous buyers would not be allowed to make offers, so there would be no new non-indigenous owners of that property. In the case where there are no interested indigenous buyers, the government would take over the land and hold it in trust until an indigenous buyer can come along.

This might seem unfair, but it's a much more generous treatment of stolen property than in most other contexts. In order to facilitate these purchases, the federal government would operate grant, loan, and tax credit programs (with generous terms) for indigenous groups and individuals. In areas where land was taken with some legal basis – and in cases of where land has already been returned to indigenous communities (either through this or other processes) – non-indigenous people could bid if the indigenous choose not to purchase the property. 

However, one of the biggest obstacles to landback is inheritance. Inheritance is a major reason why land reform has not been more successful in South Africa, as white landowners simply pass the land on to their heirs, leaving most land in the hand of the descendants of white settlers. Thus, in cases where land is passed down through inheritance, a 100% inheritance tax would be levied for non-indigenous heirs, while standard inheritance taxes (0% for most heirs) would be levied for inheritances of other forms of wealth (e.g. if a landowner or estate passes down a $300,000 property, the heirs would be required to pay $300,000 in taxes; however, if the landowner or estate sells the property, the heirs would receive $300,000 tax free).

This would encourage the sale of land by non-indigenous landowners so they could leave an inheritance of cash wealth to their heirs. This mechanism is crucial to ensure inheritance doesn't provide a loophole to block landback. This loophole must be closed for landback to work, and it would preserve the inheritance system while addressing historic wrongs. Exemptions to this program could be made for Black families, who in general have been losing land over the generations since emancipation, as well as indigenous communities from elsewhere in the United States, Canada, or Latin America and the Caribbean.

In order to address cases in which land is owned by corporations and businesses that do not often sell the land or pass it down to heirs, an additional property tax should be assessed on non-indigenous corporate/business land holders. The proceeds of this tax could help fund the government program which would provide grants, loans, and other financial support to indigenous land purchasers.  

This proposal might seem radical, but this simply reflects a status quo bias. In our long-established system of jurisprudence, when property is taken illegally it must be returned to its rightful owners by either the thieves or the fences (those receiving the stolen property). For instance, art and other property stolen by the Nazis is regularly returned to its original owners (and their descendants). In that regard, this this program is simply the equal application – after hundreds of years of discriminatory treatment -- of the nation’s laws. However, recognizing the social and economic impact simply expropriating and returning land would have on many families and communities, in this program no one is coerced and property is not returned without compensation. Indigenous communities will have a clear path to obtain ownership of the land which was taken from their ancestors by force, while families and individuals currently residing on indigenous land will not adversely economically affected. 

References: 

Lahiff, E. 2007. ‘Willing buyer, willing seller’: South Africa’s failed experiment in market-led agrarian reform. Third World Quarterly, 28(8), 1577–98.

Lahiff, E. 2008. Land reform in South Africa: a status report 2008. Cape Town: Institute of Poverty, Land and Agrarian Studies, University of the Western Cape.

The views and opinions expressed in this post are those of the author(s) and do not necessarily reflect those of The Democracy Collaborative.