Private Law Theory

ABSTRACT
This Article describes the emerging role of private institutions in returning land and land access to Indigenous peoples. Indigenous peoples have long advocated for the return of Indigenous lands, including through the Land Back movement. While many calls for Land Back have focused on public lands and government actors, this Article describes how private institutions, private lands, and private law can support Land Back. Based on original research, including interviews and review of private land documents, this Article examines private, non-profit conservation organizations (land trusts) as a case study of the role of private institutions in returning private land and land access to Indigenous peoples. This Article makes several contributions to the literature. First, this Article categorizes private law tools currently being used in collaborations between land trusts and Indigenous peoples to return land and land access: fee simple land return, easements and profits, and licenses and contracts. This is the first Article to examine novel private law tools including cultural access easements and agreements, harvest permits for culturally significant plants, and land invitations. Second, this Article argues that private law can support decolonization and describes how private law tools for land return and land access can reflect decolonization principles. Third, this Article describes that there are no major legal barriers for land trusts to return land and land access to Indigenous peoples. It then suggests two areas of public law reform to support the return of land and land access: tax incentives and changes to state and federal funding programs for land conservation. Overall, this Article encourages private institutions and landowners—under the direction of and in collaboration with Indigenous peoples – to return land and land access to Indigenous peoples.

White, Alisa, Private Law for Land Back (March 5, 2024), NYU School of Law, Public Law Research Paper Forthcoming; 51 Ecology Law Quarterly (forthcoming 2025).