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December 12, 2005

The U.S. Congress has recently passed their Budget Reconciliation Bill, which contained a provision for altering current federal mining laws. This change in policy would result in decreased environmental controls over mining practices, and would also allow for easier purchase of lands by mining companies. This policy change would particularly affect Indian nations, whose reservations are often adjacent to federal lands.

In response to this bill, the Indigenous Environmental Network (IEN) is circulating a letter and a petition to Indian tribes and other interested parties. The letter is a draft to be sent into relevant senators, asking that the provision be stripped from the Budget Reconciliation Bill. The petition is also for stripping the mining provision, and it will be sent to all U.S. senators before they vote on December 14th.

In support of IEN’s efforts, the White Earth Land Recovery Project has signed this petition and sent in the letter to Minnesota senators Mark Dayton and Ron Coleman. Below is the draft letter supplied by IEN Indian tribes and other landowners across the country. For more information, go to the IEN website at: http://www.ienearth.org/

December 7, 2005

Dear Senator:

We are writing to express our serious concern with a provision the House passed in the Budget Reconciliation Bill that would effectively rewrite federal mining laws. This provision, if enacted, would have devastating consequences on lands significant to Native American people. We urge the removal of this provision.

We understand the provision lifts the moratorium on land patents, removes the requirement that mining claimants show a “discovery of a valuable mineral deposit” before purchasing the land, and allows “sold” public lands to escape federal environmental review and reclamation bonding requirements. This is a fundamental weakening of federal mining law and environmental protection for impacted communities in the West that are adjacent to federal lands. There are thousands of these communities-- towns, villages, cities and reservations throughout the west-- that could be profoundly affected. As written, this measure would eviscerate existing U.S. mining laws, sacrifice environmental safeguards, and wreak havoc with our traditional communities so real estate speculators and multinational mining corporations can profit from the sale of our public lands.

The measure affects approximately 270 million acres of land across the U.S., many of which are adjacent to Indian reservations or include areas in which federal title is disputed. These lands contain important historic and sacred sites and other culturally sensitive areas. Many of these areas are places where native people exercise their off-reservation hunting, fishing and gathering rights promised in their treaties. Other lands may be the subject of ongoing disputes over the validity of the U.S. claim that the lands somehow transferred from indigenous title to federal title. Examples of such ongoing disputes include: the Black Hills of South Dakota, the Western Shoshone lands of Idaho, Nevada, Utah and California, the San Francisco Peaks of Arizona, and lands in the headwaters region of rivers flowing into Bristol Bay, Alaska.

Additionally, mining and other forms of development that come with privatization could impact the ecological and human health of both Indigenous and non-Indigenous communities living downstream or downwind from the operations. Mineral extraction impacts ecosystems that sustain Indigenous tribal nations and communities and contributes to the quality of life that all Westerners enjoy.

This legislative maneuver has the potential to cause irreparable harm across the West. Yet, these proposed changes were included without one public hearing or the opportunity for public input. We are particularly concerned that there was no consultation with Indigenous tribal nations. The United States has a trust responsibility to consult with Indigenous tribes on proposed actions or development activities through government-to-government negotiations -- clearly this has not occurred.

In addition, the United States Government has a fiduciary duty and trust responsibility to Indian Nations, especially with regard to its management of federal lands that directly impact native communities. This legislation would seriously damage that trust obligation by transferring ownership of federal lands to U.S. or foreign corporations who owe no trust obligation to Indian Nations. This massive shift in policy and land ownership would occur without any consultation with Indian Nations whose ancestors are buried on these lands or who have special legal or cultural connection to the lands.

We are requesting your assistance to remove this proposal. At the very least, democratic principles of fair and open government require that such sweeping changes in federal land policy be debated in the open as free-standing amendments where all Americans, including Indian Nations, can express their opinions. The undersigned Tribal Nations, Traditional Councils, Native Organizations and individuals respectfully request that this proposal be repudiated when House and Senate conferees meet to finalize the Budget Reconciliation Bill.

Indigenous Nations and Traditional Councils

Land Acquisition (2003/2004)

For many years our tradtional big drum Midewiwin and Jiisakii ceremonies were outlawed on White Earth. Most of our teachings were hidden away and our people had to travel secretly to continue our most sacred spiritual practices. In recent years, these ceremonies have grown and with the passing of the 1978 American Indian Freedom of Religion Act, more of our ceremonies have come out of hiding. Many people from our community are involvoed in traditional religion, yet on White Earth, we did not have a place, which could be dedicated to support some of our ceremonies, and lodge some of the people. Our traditional spiritual practitioners needed a retreat center to host some of our longer ceremonies.

In 2002-2004, the White Earth Land Recovery Project acquired a 50-acre parcel of land located near White Earth Lake, with a small house. This purchase was made possible with generous donations, the late John O'Connor and his wife Carolyn Mugar and long-time supporters of WELRP, Don and Marion Hall.

Native Harvest Facility (2004)

Native Harvest Facility Acquisition (2004): With generous support from the Midwest Minnesota Community Development Corporation and the Bush Foundation, we have been able to make our new Native Harvest Production Facility, community center and Minwaijie Cafe a reality. Over time, the facility was renovated and now hosts the Native Harvest production and distribution center, as well as the retail store and café area. As well, the facility is used as a community facility, where we coordinate various workshops such as gardening and traditional agriculture workshops, Black Ash Basket making workshops, quilting workshops as well as other traditional crafts workshops.

Absentee Landholders

The Land- Akiing

Anishinaabeg Akiing: The Land of the People…..That is where we live. We are the Anishinaabeg of the region, and our neighbors within the borders of the reservation are from all parts of the world. This is land we share, and the question we are interested in asking is how it will be that we can care for this land in the future?

The many landholders on the reservation include federal, state, county and tribal governments, lumber companies, agribusiness, the Boy Scouts of America and thousands of individual landholders. It is common land, common watersheds, rivers, and forests. The White Earth reservation is host to some 47 lakes, and at least 500 bodies of water. The ecosystem of this reservation is incredibly diverse, perhaps denoted best by it’s historic name as the “medicine chest of the Ojibwe”, from the marshes and muskegs, to the deep forests and prairies. This is also the last stronghold of some of the vast maple-basswood forest system which once spanned much of central Minnesota. Endangered and precious species of prairie grasses, and plants, muskegs, and trees span the beauty of this reservation. We want to insure the generations ahead may also have a way of life which is related to the biodiversity of this land. To protect the land, and plan for the generations ahead, it is important that we work together- no matter where we come from.

Today, we are faced with complex regulations, and complex uses of land. Often landholders may hold adjoining properties, with little knowledge as to the proposals of their neighbor. Clear cuts now often abut other clearcuts, as property holders seek to generate income from the trees on the land. Ecosystems can be compromised by a lack of communication and a lack of planning.

The past one hundred years has challenged this land. Over 60% of the wetlands in Mahnomen County have been drained, most of the great white pines have been cut, and increasingly, an aspen monoculture is emerging in large parts of our forests. Many of our lakes and rivers have been altered, and some of our most significant fish, like the sturgeon have been obliterated on the reservation, gone with the buffalo.

We are turning the tide. Over the past fifteen years, the White Earth Land Recovery Program has worked with private landholders, state, federal and county agencies to begin some elements of recovery. With the White Earth Tribal Council, we’ve begun to restore the sturgeon , the namewag of this vast ecosystem. Through a relationship with the Manitou Rapids Band of Ojibwe (from Canada) we’ve placed 50,000 sturgeon back in Round Lake, Ice Cracking Lake and White Earth Lake. In the years ahead, we will be altering the dam structures on these lakes to insure that the sturgeon can migrate throughout the Ottertail River system. The White Earth Land Recovery Program works with local buffalo ranchers to support the restoration of this great animal into our ecosystem ( ie: the Buffalo River is named for their presence), and to insure that those who need the buffalo to eat the most, are able to get those buffalo. And, over a three year period, the White Earth Land Recovery Program convened federal, state, tribal, county and private landholders to complete a map of forest systems on the reservation called the Habitat Classification Project, with the hopes of a more integrated planning program to protect endangered species, and ecosystems upon which we all rely.

We’ve worked with landholders to protect areas with eagles nests, sacred ceremonial and grave sites, and we’ve worked with agencies and local groups to protect forests, maple sugar bushes, and the biodiversity of this land.

Join us. We have a chance to plan together as landholders on the White Earth reservation, to protect and restore this land. How can you get involved?

Conservation Easements: Many landholders nationally are looking to conservation easements to protect land, watersheds and forests. Conservation easements are legal documents which can protect land from clear cutting, large scale development projects, and even genetic contamination. The White Earth Community Land Trust seeks to protect these lands and is developing a community based membership.

Conservation Easements are Good For Hunters:

Some twenty seven organizations, including a host of hunting groups signed a letter to Congress supporting conservation tax incentives and highlighting the vital role these tools, including easements play in providing Americans with outdoor recreational opportunities.

The letter, sent to the Senate Finance Committee Chair, Charles Grassley (R-IA) and Ranking Member, Max Baucus (D-MT) arrived in time for disscussions of federal tax law for charitable giving and possible changes to tax incentives for land and water conservation. "Easements ensure that millions of acres of wildlife habitat across the country remain healthy and intact, benefiting deer, waterfowol and other game animal", the letter stated.

The letter was signed by some twenty seven organizations including: Trout Unlimited, Pheasants Forever, The Rocky Mountain Elk Foundation, Ducks Unlimited, the Outdoor Industry Association, the International Association of Fish and Wildlife Agencies, the Theodore Roosevelt Conservation Partnership and other groups.

The organizations supported legislation targeting reform of conservation easements to end tax abuses while preserving the core incentives which have encouraged private property owners to use conservation easements. In the last quarter of a century, more than thirty million acres of natural areas, fish and wildlife habitat and rural landscapes have been protected from development with the use of voluntary conservation tax incentives. That's an area the size of Arkansas.

"Many state and local economies are dependent upon open space and wildlife habitat which can generate millions of dollars in recreation and tourism...Often these valuable resources occur on private property and conservation easements frequently are the only way to conserve these lands, ensuring their long-term viability", the letter stated.

A conservation easement is legally binding but voluntary agreement which permanently limits certain types of development or uses from taking place on a piece of property, in short to protect the property's open space or ecological value. Conservation easements allow continued ownership by the individual landholder, and the land will be passed on to heirs.

Reference: Sports Afield, Page 36, September 2005.

Donation of Land: The White Earth Land Recovery Project has received several donations of land to our project by individuals who recognize our stewardship and community commitment to land preservation and sustainable relationships with land. We are happy to work with you on these possibilities, including donations of land, or “ bargain sale” of land to our project. In all cases, the federal tax exempt status of the organization can assist landholders in receiving certain tax benefits from this type of donation.

Restoring Ecosystems: Ask the staff at the White Earth Land Recovery Project about Forest Stewardship Council certification for forest systems on the reservation. The FSC systems enable landholders to manage trees for ecologically sound economies, and to allow members to have a potentially premium market for non-clearcut, carefully managed forest products.

White Earth Community Land Trust: The White Earth Community Land Trust is a newly comprised organization of landholders on the White Earth reservation who wish to preserve the beauty of our area. The Land Trust is comprised of individuals and families who own lakeshore, farm, and forest parcels, and wish to see protect that land for future generations from subdividing, clearcutting, and a diminishment of water quality. The Land Trust is the entity which will monitor and secure conservation easements on the White Earth Reservation.

What benefits do I get in a land donation to the White Earth Land Recovery Project?

You get the benefit of knowing that people who live in this community and have lived here for a thousand years or more, and intend to live here for a thousand years more will take good care of that land. We will insure that the biodiversity is preserved, will grow heirloom foods and crops on farm land, will preserve and enhance parcels which need restoration, will use land, if appropriate for purposes like wind energy generation, cultural teachings, and traditional sustainable harvesting of medicinal plants, basket materials, and other parts of this land.

You will get the tax benefit of your donation. Although the actual value of the land and the subsequent tax benefit varies according to the land, the market value, the value of any easements, and other elements, the general practice is to secure a value of a tax deductible donation to a non-profit charitable institution, which is set by assessment, and may be applied to one or more years of your federal income tax.

Bargain Sale: The practice of “ bargain sales” of property is an intersection of a tax deductible donation and a nominal compensation to the land owner who is “selling his or her property” to the tax exempt entity. The value of the tax benefit under present federal law is estimated on the difference between the value of the property at fair market value and the negotiated “ bargain sale price” of the property to the organization. Similar tax benefits over one to three years can be accrued for this practice.

What are Conservation Easements?

About Conservation Easements: Why would one put a conservation easement on private property? To preserve biodiversity, cultural and historical heritage sites, water quality, forest integrity, and the economic value of a larger parcel of land, or a line of sight from another parcel. To protect land and preserve it , as well as water and biodiversity for future generations.

Rights:

Land ownership includes a collection of rights- the right to lease, occupy, sell, develop, construct buildings, harvest timber, restrict access or farm, among others. A landowner can give up one or more of those rights for a purpose such as “ conservation” while retaining ownership of the remaining rights. In “ceding” these rights, or a single right, a landowner “eases” it to another agency or entity, in this case, the White Earth Community Land Trust.

Examples might include an owner giving up a right to build additional structures on the land, while retaining farming rights, or wood harvesting rights, and retaining the right to live on that land. Rights ceded could also include the right to subdivide, which , among other rights in a conservation easement, has been established in case law as having a real economic value.

Private Land:

Privately held property subject to a conservation easement remains in private ownership. Many types of private land us, such as farming, wind energy development, and hunting can continue indefinitely under such an easement. Other restrictions may be included as elements of a conservation easement , including a preservation of forest diversity ( and for instance a preclusion of clear cutting), or a limit on agricultural use on the land to protect riparian, or stream areas, or preservation from genetic contamination by genetically modified organisms. As well, a restriction on subdividing, would all be possible with conservation easements. Conservation easements do not mean that properties are opened to public access unless so specified in an agreement.

Flexibility:

There is no one size fits all in conservation easements. Conservation easements are best tailored for the individual parcel, and need to be negotiated as such. The White Earth Community Land Trust has a number of model conservation easements, including some which protect forest diversity and limit cutting to selective cutting of forest parcels, easements to protect land from genetically engineered food production, and easements to secure access to cultural areas or plant harvesting. Easements are designed to reflect both the diversity of parcels , and the needs of landholders. Some landholders may restrict certain future uses ( subdividing) but keep a provision for a descendent to build on one section of the land. Parcels may include easements which protect land for future agricultural use ( and subsequent family income), but limit management plans.

In Perpetuity:

Most conservation easements are added to the property title, and hence run with the land. This means that if the land changes owners through inheritance or sale, the conservation easement would remain on the property, protecting the land for future generations. The White Earth Community Land Trust, working with local landholders , will seek to monitor and defend the easements legally in the event that the easement is ever violated.

Many landholders have no intentions of subdividing their property, or developing, for instance a “ second tier” on the lakeshore, which many lakeshore owners note diminishes both the quality of lakeshore, and the water quality within the lake, as more boats, sewer systems, lawn care products and erosion impacts lake quality. A conservation easement offers present land owners the opportunity to protect the land beyond their own lifetime . An easement binds heirs and future owners to comply with the easement’s terms, giving present land owners “peace of mind” when worried about a beloved cabin, hunting parcel, stretch of lakeshore or family farm.

Tax Considerations:

Conveying a gift of a conservation easement to a non profit agency, like the White Earth Community Land Trust, may entitle the land owner to a number of tax benefits. The land owner may qualify for a federal charitable income tax deduction under IRC Section l70(h) if he or she donates or “ bargain sells” the conservation easement which requires that the easement l0 complies with state laws for easements in land, 20 be conveyed to a qualifying organization to hold the easement, ; and 3) be conveyed “ exclusively for conservation purposes” and in perpetuity.

Assuming requirements are secured, the value of the charitable contribution is based on the appraised fair market value of the easement, and whether it is donated or “ bargain sold”. The value is ascertained by calculating the difference between the value of the property today before the imposition of the conservation easement, and the value of the property if the conservation easement was attached. The latter value is determined by the nature of the restrictions and their implications for present and future land use and value. The resulting among is the value of the easement for tax purposes. Generally, a property’s value is based on its “ highest and best use”, which in the present real estate and commercial market often involves cutting of timber, and subdivision. Conservation easements in which these rights are relinquished often qualify the land for a substantial value for tax deduction purposes, as the parcel’s development potential is now non existent. Under IRS rules, the donor of the easement is responsible for obtaining an independent appraisal to substantiate the value of the easement for tax purposes, and the IRS has published rules as to what would constitute a qualified appraiser and appraisal for these purposes.

The tax benefits for a landowner in making a gift of an easement are much like those of other contributions to charity. If we assume that the easement is valued at $l0,000, a landowner with a thirty percent marginal income tax bracket would realize $3000 in tax savings from the gift. If the landowner has enough income from other sources to be able to use the full amount of the gift. The law allows a five year carry over period beyond the year of the gift for landowners to claim the unused gift value.

In addition to the income tax deduction value, under IRC 203l © , the gift of an easement can also entitle a landowner to qualify for an estate tax exclusion for a portion of the value of the underlying land that is subject to a conservation easement, thereby reducing the estate tax on the value of the landowner’s assets that pass on to the heirs.

Easement Terms:

This is a negotiated agreement between the Landowner and the White Earth Community Land Trust. This will involve us working with you in looking at development issues, tree cover, plant cover, water quality , and cultural significance of the parcels, as well as a clear understanding of all of your wishes for the future of the parcel.

Monitoring and Enforcement of Easements:
This is both based on trust between the landholder and the easement holder, in this case the White Earth Community Land Trust. Since the monitoring and potential legal enforcement issues involve a long term commitment, we plan on setting aside money to continue to work on this set of issues, and to keep the organization and the land owner compliant with all laws.