How to give the land back

It’s common to feel a deep sense of injustice for what happened in history and to hunger to create a better future by doing good work today. But what does that good work look like? In an economy and legal system filled with structural injustice, how do groups of people build a better world?

In the lands commonly called Humboldt, Calif., the Wiyot tribe and settler-colonizer organizations are working together to do this. At the intersection of land justice, language justice, and ecological restoration they are creating a legal framework for how to give the land back to First Nations so that healing of, and on, the land can both happen.

Members of the Wiyot Tribe in Northern California’s Humboldt Bay region receive the deed to 200 acres of their native land after nearly 160 years of fighting to reclaim it, Oct 2019. Credit: Wiyot Tribe

To do this, the Wiyot Tribe and Cooperation Humboldt are working together to form a type of Community Land Trust (CLT), Dishgamu Humboldt, the first of its kind, to structurally ensure that the Wiyot tribe will maintain decision-making power in this land trust, forever.

An Indigenous-Led CLT

Property is often considered to be a ‘bundle of rights’ that defines who gets to use or alter a space. A CLT legally and financially separates the two bundles of property rights we usually think about together: the ownership of buildings and the ownership of the land that those buildings are on.

Under a CLT, buildings can be bought and sold based on their value. The difference is that the land beneath those buildings gets held by a type of nonprofit in perpetuity—which is as close to “forever” in legal terms as you can get. In this way, the financial value of the land gets separated from the buildings, effectively de-commodifying the land and preventing it from being bought up by those who only see it as a financial asset.

Wiyot Tribal Administrator Michelle Vassel and Cooperation Humboldt Co-founder and Executive Director David Cobb, Credit: Mark McKenna

Like other nonprofits, a CLT is governed by a board, which in this case ensures that control of land use stays in the hands of the Wiyot. The first of its kind, this CLT locks in a tribal majority to the structure itself: four of the seven board members will always be appointed by the Wiyot Tribal Council. Dishgamu won’t just exist to hold and manage land; it also aspires to foster cooperative ventures and solidarity economics. “We’re not just looking at projects. The projects are the building blocks. But we are committed to truly re-Indigenizing this place,” says David Cobb, a lawyer, activist, and former Green Party presidential candidate. Cobb has been working closely with Wiyot Tribal Administrator Michelle Vassel in forming the CLT. 

Cobb is also on the board of Cooperation Humboldt, a solidarity economy organization that pays an honor tax (1% of their annual revenue) to the Wiyot Tribe as a tangible way of honoring the sovereignty of the Native Nations on whose land they operate.

Slow and Steady Healing

Like anything pioneering, re-tooling legal structures is not always clear-cut. “One of the things we’re struggling with is to [form the CLT] under Indian law, rather than California State law,” says Cobb. “That gets very tricky because there are all sorts of questions or conflicts of jurisdiction.”

“We’re not just looking at projects. The projects are the building blocks. But we are committed to truly re-Indigenizing this place.”-David Cobb

The process of re-Indigenizing land and healing has not been quick either. In a webinar, Vassel gave an overview of the decades-long struggle to have land returned. In the 1970s, one tribal chairman asked for the land back, but the city refused. About two decades later, another tribal chairwoman and three partners  started hosting candlelight vigils, in honor of the Wiyot tribe’s sacred World Renewal Ceremony. 

This is because Tuluwat Island—much of which had come into the ownership of the City of Eureka—was the site of a brutal massacre of women and children at the hand of white settlers in 1860. It took place during the Wiyot’s World Renewal Ceremony, and the island was, and still is, sacred to the Wiyot. By the 1990s, the vigils began, allowing Indigenous and settlers alike to come to terms with that history. “It was at these vigils that real change started happening in our community, because it wasn’t just Wiyot people, it wasn’t just Indian people. It was also people that were from all over Eureka and all over Humboldt County,” explains Vassel. “We were able to gather in this space at night by candlelight and look history in the eye.” The vigils continued for 20 more years.

Community members gather for the final Wiyot Candlelight Vigil, Feb. 2014. The discontinuation of the gathering coincided with the tribe’s resurrection of their World Renewal Ceremony. Credit: Nick Adams

Many years later, the tribe fundraised $200k to purchase 1.5 acres on Tuluwat Island. The area was environmentally degraded when they purchased it, so they began restoring the island by removing trash, debris, and hazardous chemicals, then remediated the soil, ultimately getting Environmental Protection Agency approval for human habitability.  “We spent fourteen years doing that work. It began with a lot of people that had attended our vigils,” explained Vassel.

“Our tribal chairwoman in 2004 went back to the city of Eureka and she put in a request to transfer that land to the tribe. That time in 2004, the City of Eureka unanimously approved it,” added Vassel. It was the first time a municipality had returned land without being legally obligated to do so, largely in part because the City had understood the mutual benefit of giving the land back and ecological restoration.

In 2019, the City of Eureka returned an additional 200 acres of land on Tuluwat Island to the Wiyot, marking the  first time in US history a city returned land to a tribe with absolutely no legal strings attached. 

Building a New World Within the Shell of the Old

Dishgamu Humboldt, with its Indigenous-led board structure, may be able to further the same spirit of cooperation between settlers and Indigenous peoples. By using existing legal structures to outline how to do something radical—giving the land back— this action can be replicated by many others from coast to coast. An important feature of this CLT is that it will be able to accept land donations, enabling tribes to gradually regain territory that was taken from them. Since the core innovation of Dishgamu is its structure, its founders see it as a pioneer that others can learn from. “We’re only doing projects in Wiyot Territory,” says Cobb, explaining that Dishgamu will refuse to take on development projects in areas historically stewarded by other tribes. “But what we will do is help other groups and other entities replicate this model.

“By using existing legal structures to outline how to do something radical—giving the land back— this action can be replicated by many others from coast to coast.”

”Although many are familiar with how Indigenous land was stolen through violence or by the federal government signing hundreds of treaties with Indigenous nations, then failing to honor most of them, some are less familiar with how it was also stolen through legal trickery and by jeopardizing the finances of members of Indigenous nations so that they were forced to sell their land.

The 1887 Dawes Act kicked off the policy of allotment which broke up reservations into smaller parcels and transferred ownership to individual Indians instead of tribes holding land in common. Those parcels were then taxed, chopped up into physically disparate pieces, and declared ‘surplus’, allowing white settlers to buy, squat on, and claim the land when Indians were unable to access it. This resulted in a loss of approximately 90 million acres of tribal land.

Aerial view of Humboldt Bay and the City of Eureka, all once considered Wiyot land. Credit: Robert Campbell

This policy of law-based land theft continued in 1953 when the federal government began terminating the federally-recognized status of many tribes. Framing it as a way to assimilate American Indians into settler society, a real outcome of termination policies was the removal of the protected status of over a millions of acres of Indian land. This made it significantly easier to wrestle land out of the hands of individuals, rather than a recognized tribe. In fact, it was impossible before, as a Supreme Court case had ruled that private individuals were barred from buying land from federally-recognized tribes. By dissolving the federal recognition, settlers were then able to purchase or take land that was previously not available for sale.

This caused the Wiyot to lose their recognized tribal status in 1961. After suing the Federal Government for unlawful termination, the Wiyot won and had their status reinstated—20 years later.

Members of the Wiyot tribe kayak on Humboldt Bay. Credit: Nick Adams

In past centuries, legal tools have repeatedly been employed to transfer land ownership to settlers. Today, Dishgamu Humboldt is using similar legal structures to transfer land back to tribes. The CLT returns the land to communal ownership, and communal stewardship.

According to Cobb, “You have to build the new society within the shell of the old,” and Dishgamu Humboldt can provide a blueprint for what a better world—the one being born—might look like. As parts of the world flood and burn, perhaps projects like this can show us how the land and the people can heal from the wounds of the past, and grow a better future, together.

Check out these related articles and resources:

New report explores community land trusts and the commons
How land trusts can counter new urbanism’s gentrifying tendencies
Why CLTs and city land banks should work together to create permanently affordable housing

 

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