Tribes as Conservation Easement Holders: Is a Partial Property Interest Better than None?

Abstract:     
Conservation easement use is growing rapidly, as is the number of organizations looking to the tool to meet land conservation needs. Until recently, tribes had not been involved in conservation easement transactions. This book chapter examines the most common way tribes have become involved in conservation easement transactions — tribes as conservation easement holders.

The chapter examines why tribes decide to hold conservation easements, looking at the choice to use conservation easements generally and then situating the decision in the evolution of property law in the United States both on and off tribal land. Conservation easements are a uniquely American form of property that emerge from Lockean roots and embrace a libertarian notion of property rights. In that light, tribal embrace of the tool may seem surprising as these notions of property have done harm to tribal sovereignty and may be at odds with some traditional tribal practices.

The chapter concludes by asking whether tribes should use conservation easements. Wrapped up in this question is an assessment of the conservation easement tool generally as a vehicle for long-term land protection. The strength of the conservation easement tool is that it gives government entities the ability to extend their land conservation and environmental stewardship roles beyond their jurisdictional boundaries. Tribes may not have the power to regulate land use in nearby communities, but they can acquire conservation easements over such land and obtain similar results. Thus, despite some discordance due to the anticommunitarian sentiments at the heart of conservation easements, the conservation easement tool may provide tribes with an avenue for furthering tribal goals of conservation and intergenerational equity.

Keywords: conservation easements, sovereignty, tribes, Indians, Klamath, Locke, statutory interpretation

JEL Classification: H7, K11, K32, Q15, Q2, Q24, R52

Accepted Paper Series