Property and Authority in Lands Without Lights
Meghan Morris October 16, 2014
Last week, the U.S. government announced it would pay the Navajo Nation $554 million to settle a protracted lawsuit by the tribe. The settlement resolves claims that the U.S. government mismanaged tribal funds and natural resources, including revenue from leases of the Navajo Nation’s land for oil and gas development, cattle ranching, mining, and farming. This is the largest settlement with a single Native American tribe in the country’s history.
In the press announcing the settlement, Ben Shelly, the president of the Navajo Nation, announced that the tribe would host public meetings with members of the Navajo Nation to discuss how to best use the funds proceeding from the settlement. An advisor to Shelly stated that the funds could help deal with shortages of housing, water, electricity, roads, and other infrastructure across the Navajo Nation. An estimated 16,000 families on the reservation have no electricity, and many more lack telephone, gas, and water services.
The settlement is a landmark in the history of tribal claims against the U.S. government. But it is also striking in terms of the clear disjuncture it highlights between tribal resources and the needs tribal leaders have identified on the reservation. The Navajo Nation has fourteen million acres of trust lands used to produce revenue for the tribe. The Navajo reservation, at 27,000 square miles total, is the largest in the country, and is larger than ten of the fifty U.S. states. And yet this wealth of land and resources stands in stark contrast to the fact that thousands of tribal members lack the most basic of public services.
As I read this news, I was reminded of the situation in northwestern Colombia, where I conduct research in rural communities, some of them Afro-Colombian. Many of these Afro-Colombian communities hold collective title to their territory (which is a distinct legal relationship to land from that of the Navajo, whose land is held by the U.S. government in trust for the tribe). Some of these Afro-Colombian territories are enormous, extending over hundreds of thousands of acres of land. In this particular area, however, a significant portion of their territory is occupied by large-scale cattle ranches. Community members often see little to nothing in terms of proceeds for this use of the territory, though much of the land is rich in natural resources.
During a recent visit to this area in August, local residents were on strike. The strike had begun in the banana and plantain-growing region further east, where plantain farmers were demanding back payments for shipments of their product. But the primary demand of local residents was not for plantain payments – rather, it was for electricity. The main road within an enormous area collectively titled to Afro-Colombians has electric posts all along it, wires stringing for miles past dozens of communities to provide service to the river town at the end of the road. And yet not one of these communities along the road has electricity. They have no public water service. And the road is so poorly maintained that in my latest trip down it (thankfully for me, on a motorcycle), I passed multiple stranded vehicles, stuck in the mud.
How is it possible for communities such as these to be so rich in land, and yet lack the most basic of infrastructure? It is clear that having formal title to land is important, but it is not enough. What, exactly, is missing?
Ben Shelly provides a clue to this. In a statement hailing the settlement, he declared that it had been a long battle, but “in the end, it was a victory for tribal sovereignty.” Similarly, Afro-Colombian communities in northwestern Colombia consistently push for respect for their maximum authority within their territory, amidst incursions by state and private actors who use resources within the territory without approval or equitable economic relationships with the community. In the end, both Navajo and Afro-Colombian leaders are making claims not just to the benefits that should accrue to them as landholders, but to respect for their authority within and over their territories. They are also making specific claims on their respective national governments to hold up their end of the bargain – in the Navajo case, with respect to their responsibility to be an effective trustee, and in the Afro-Colombian case, to provide basic services in communities that have historically been neglected.
Early legal realist Morris Cohen, in “Property and Sovereignty” (1927) pushed for a collapse of the distinction between dominium (the rule over things by the individual) and imperium (the rule over individuals by the prince), finding that “[i]n a regime where land is the principal source of obtaining a livelihood, he who has the legal right over the land receives homage and service from those who wish to live on it.” In both the Navajo and Afro-Colombian situations, however, the coexistence of dominium and imperium is not so clear. This is precisely the source of these communities’ demands. Yes, they have land. What they don’t have is adequate respect for their authority to decide what to do with it, to influence how resources and revenues from it will be invested and allocated, or to enforce concurrent government responsibilities with respect to it. The result? Communities with immense, richly resourced territories, whose members have no water or electricity in their homes.
As we applaud the U.S. government’s settlement with the Navajo Nation, it is important to consider the light it sheds on similar relationships across the globe. And remember that, as we consider whether or not communities have rights to their land and territories, we should pay equal attention to whether or not they have the power to keep the lights on.