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While I was reading up on the Dakota pipeline issue and Standing Rock, I thought I read somewhere that Native American Trust Land (aka reservations that are held in a trust by the US government) can just be taken away by the state/us government if they decide that they need it for something, and don't need approval by the Native Tribe.

I can't find that article anymore and that question has become relevant in an essay I am writing about public transportation in Native American Reservations. I tried to find another source or anything, but I can never find anything that confirms or contradicts this.

Can someone help me with this question, or just point me towards sources where I could find info on this?

  • I don't know the particulars of Native American Land Grants, but my guess is that the land is still subject to Eminent Domain. – IllusiveBrian Jan 15 '17 at 21:05
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    @IllusiveBrian That is certainly true for the Tribal Land that is private property, but most Tribal Land is not private property, but in a trust, and therefore not affected by the Eminent Domain, since it is already owned by the US government. – Nik Rawlins Jan 17 '17 at 16:15
  • We have a really long history of breaking treaties with the native nations and, as such, this could be a really muddy topic as what is 'legal' historically often came down to opinions. That said, there definitely should be some documented laws regarding this (and whether they are obeyed or not is another issue). – user1530 Feb 4 '17 at 19:29
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No.

The Acquisition of Easements over Native American Lands For Transportation Project provides an excellent summary that includes:

... when lands are held in trust for Native Americans ... the recourse to use eminent domain is not available, except in rare instances and then only through the Federal courts. This places an emphasis on resolving and negotiating all settlements with Tribal and individuals holding an interest in the trust lands required for the highway or other transportation improvement.

Within 25 CFR Part 169 the provisions related to obtaining a highway easement clearly state that obtaining easements over Indian lands requires the prior written consent of the Tribe and owners of such lands. This applies to securing permission to survey and for the specific terms and conditions of use required for the proposed project.

25 CFR 129 clearly indicates the Federal government requires tribal permission for use of the land, and that tribes are not subject to state governments.

Having said that, there are always end runs. The worst were late 19th and early 20th century assimilations. The current game is called consolidated condemnation, which is likely not going to work out. Fortunately. The linked article provides an in-depth position review of both historical motivations for, and current failings with, the condemnation tactic.

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This may be a bit of an odd view, but if you look at the totality of agreements made between the United States government and the Native American tribes, I can't imagine there is an arguement that those agreements or laws hold any real weight.

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    To clarify, I mean the US has used any pretense to reneg on treaties made with the tribes. To think they can't do so again goes against quite a precedent – Brad Ford Feb 4 '17 at 18:25
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    Not sure this works as an answer, but it's a very valid comment. – user1530 Feb 4 '17 at 19:30
  • That was exactly the problem that I ran into while researching, because it felt like all laws around it where basically saying : "If we want to, we can take it away, b/c technically it still belongs to us." – Nik Rawlins Feb 6 '17 at 12:01
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    Also has alot to do with whether the government, depending on the era, viewed the natives as 'soverign' or potential citizens that just needed to be assimilated. There have certainly been times in history where 'reformers' saw reservations as the last barrier to 'civilizing' them. Very complex, and depressing, line of research. – Brad Ford Feb 6 '17 at 19:37

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