Estate planning for the Land Back Movement is here — it's complicated

Philanthropically-inclined clients' interest in the Land Back Movement is opening new realms of estate planning for financial advisors and tax professionals.

The Land Back Movement revolves around the mission of returning territorial assets seized from indigenous nations so that Native Americans reclaim ownership and stewardship of them. It is already playing out in various forms of land-transfer efforts in states such as California, Minnesota, Oklahoma, Alaska and Maine. 

Individual estates' bequests of land pose complicated planning questions begging the need for more collaboration among advisors, tax pros, attorneys and other professionals, experts said.

Land Back "should be on our radar" as, "at some level, a subset of charitable giving," said Alma Soongi Beck, counsel with Lathrop GPM's Private Client Services unit focusing on estate planning, trust and probate law. Although financial professionals of many types are familiar with the concept of a real estate transaction, leaving the assets to a beneficiary in a position to manage them entails an array of historical and legal complexities, Beck said.

"Clients will just raise it. We talk about where you want to leave your stuff. I've had clients say they want to give their house back to the local indigenous tribe," she said in an interview. "There has been a huge, almost exponential, awareness-raising in the last five years, and what I expect in the next five years is, it's going to keep growing."

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Discussions of returning land to Native people often come up in environmental justice and sustainability circles. But that rhetoric is "sometimes utopian" and "often just jumps right over the legal issues," according to Jo Carrillo, professor of law and the faculty director of the Indigenous Law Center at University of California College of the Law, San Francisco (formerly UC Hastings). Financial planners and others assisting landowners should keep in mind that the transfers require thinking about a donor-advised fund or another means of providing a further layer of resources to support the beneficiaries' management of the land, she said.

"What I would like them to know is, if land is transferred, there should also be money transferred to maintain that land," Carrillo said. "Land requires money to support owning it, and that's a very important part of the gift."

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Furthermore, advisors and other professionals facilitating the transaction must avoid "creating unnecessary legal battles" with the discretion that they give to any trustee to select tribal nations as the beneficiary and conduct careful research as to which ones previously lived on the land and have the capacity to supervise it, Beck said. The federal government formally recognizes 574 tribes, but every state has as many as several hundreds of other nations, bands, pueblos or villages. A Canadian website, Native-Land.ca, can aid in the search, but any given address or area will list up to a dozen or more tribes who once populated the land.

"The 'why' of Land Back is not hard for clients to wrap their minds around," Beck said. "The harder question — even for those of us who have done some Land Back work — is the 'who' and the 'how.'"

That speaks to the necessity for fiduciary planners and trustees to "know better what you're doing than just being generous" and for donors "to get comfortable with the 'how' question," Carrillo said. Those inherent dilemmas won't solve themselves.

"We're at the start of Land Back. In 10, 15 years, we'll be at the litigation phase," Carrillo said. "We have a very small group of experts. It's almost like working in the high-end art market where you have a very small group of agents, galleries and potential purchasers simply because of the price point."

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In that regard, Carrillo and Beck are seeking more connections in the wealth management and tax professional fields to move the conversations forward, they said. Beck participates in a study group of practitioners who meet every one to three months to discuss the most pressing estate-planning topics surrounding the Land Back Movement.

"Definitely talk about it with clients and raise it, but go slowly enough that you're not creating more problems than you're trying to solve," she said. "What we can figure out in community will benefit the work that everyone does. Like Jo says, we're in the early stages. We want to get ahead of the issues and not have to clean it up afterwards."