#Teachgiving Week

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November 15

Rematriate the Land | How to Return Land in Lisjan Territory to Sogorea Te’ Land Trust

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November 18

12:00pm - 1:30pm PST

Radical Real Estate Legal Cafe

Agenda

12:05 Grounding and Introduction, Yeji

12:10 Sogorea Te’ Land Trust and Rematriation, Inés

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12:20 Real Estate, Commodification/Decommodification, Cassandra

12:30 Relations in Land Return, Maija

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12:40 Estate Planning, Alma

12:50 Conservation Easements, Ellen

1:00 Non-Profit Compliance, Alejandra

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1:10 Q & A, Yeji + All

1:30 Close

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Sogorea Te’ Land Trust

Inés Ixierda

Creative Director

Panelists

Alma Soongi Beck

Attorney, Lakin Spears

Cassandra Ferrera

Real Estate Agent, Green Key Real Estate

Panelists

Ellen Fred

Attorney, Conservation Partners

Maija West

Mediator, Maija West Consulting

Sustainable Economies Law Center

Alejandra Cruz

Staff Attorney

Yeji Jung

Law Student Intern

Indigenous Land

Lisjan

Lisjan

Cassandra Ferrera

License # 01495283

Green Key Real Estate

Land Bridge Center

What is the role of real estate and real estate agents in the Land Justice Movement?

Full Transparency: I am a white, euro-descended queer woman living in unceded Coastal Miwok and Southern Pomo land. I offer the following from 16 years of real estate practice serving cooperation and tracking patterns. I live and learn in the awkward in between spaces in which I actively and humbly seek to contribute to more diverse and equitable land projects. I do not represent Sogorea Te’ nor do I claim to be an expert in rematriation. I welcome feedback.

In our current legal fiction, land is:

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• Privately Owned

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• Property, Asset, Commodity

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• Transacted by sales agents paid through commission

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Ethics are regulated by Real Estate Associations, State Department of Real Estate, Federal Department of Justice

Consider how we build the bridge to a future in which land is:

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• Listened to, commonly held, regarded as sacred
• Un-ownable, stewarded in trust
• Land transitions are supported by facilitators

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Ethics are rooted in values of liberation, repair, cooperation and kinship. We are accountable to the future.

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Sellers/

Owners

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Property

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Buyers

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Listing Agent

Selling Agent

Sale Transaction

The Basic Relationship Structure of Real Estate Relationships

Pays for both agent’s commissions through the sale price

When we objectify the land, we objectify ourselves.

Often white people

Native tribe or group, BIPOC group

Sometimes the real estate process can protect native and BIPOC groups by providing a relationship buffer and a clean break from the possibility of lingering control.

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Sellers/

Owners

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Property

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Buyers

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Listing Agent

Selling Agent

Sale Transaction

Shelterwood Collective

• BIPOC reunion project
• Paid full price or “ransom” *Rachel Bagby
• Found “on market” after many months spent on a potential “reparations” transfer

We made progress on a new real estate model transitioning from sales to service and including a 100% transparent accounting of commission. This allowed the two real estate agents to work on both stages of the project and at closing, credit $34K to Shelterwood Collective.

The benefit of dealing with the real estate market:

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BIPOC groups have the opportunity to choose which location and infrastructure are going to serve them.

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Transactional “arms length” relationship can buffer racism and “well meaning white people” during the real estate process.

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A conventional transfer can provide a clear closure to past relationships and prevent lingering control.

The cost:

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Often have to pay market price

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The relationships are transactional and embody the enduring legacy of colonialism.

The benefit of working with a real estate agent:

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Having an ally who understands the multiple stages of a real estate transition.

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The process is supported by someone trained in the due diligence aspects of

• physical inspection
• financial capacity
• title and insurability

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Having a professional who can help understand value based on the real estate market.

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The cost:

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The system is set up for them to be paid by commission at the end of a sometimes complex and tenuous process.

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Land, Home,

Place of Belonging

Title holders

Reunion/

Rematriation

Facilitation: Supported by Real Estate

Consultants & Attorneys

Transition

Reframed relationships and language:

• Try to find ethically aligned real estate agents.

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• Have a small team of 2-3 people to interface with the real estate agents.

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• Regularly meet as a team and with attorneys to support ongoing complexities of the real estate transition.

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• This is a relational journey so address issues and build trust.

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• Depending on the situation, use strategic positionality when interfacing with the real estate industry.

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Best Practices to Ethically Transition Land while operating within the Current Real Estate Market

landbridge.center

What if we all had nowhere to go but down and into the land beneath our feet? What stories would we find there? Who would we be sharing them with? What would our responsibility be to these relationships?

Due diligence in land return

Relations in land return

• Family readiness
• Land readiness
• Tribe/Nation readiness
• Time

Due diligence with both the land and the relationships

• Templates for success
• Stories of challenges

Due diligence relations resources

• http://nahc.ca.gov/ [CA Native American Heritage Commission]
• Use of mediators/peacemakers

My email: maija@maijawest.com

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Estate Planning Considerations

Thoughtful Land Return to Sogorea ‘Te Land Trust:

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• Intake Form on the website

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• Recommended Reading

https://sogoreate-landtrust.org/recommended-reading/

Estate Planning Considerations

When property is not Lisjan Ohlone land:

•Should you still give it to Sogorea ‘Te Land Trust?

•If not, who should receive it back?

•What if there is more than one group with a claim to the original land?

•Is there a community-based track record of the Indigenous organization(s)?

•Who else in that geographical area might have insight and experience? Professional advisors, organizations, state/county agencies?

•Can you park the transfer in a Donor Advised Fund or other Charitable Organization (Land Trust?) until you figure this out?

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�

Using Conservation Easements

to Create Access to

Native American Cultural,

Ceremonial, & Gathering Sites

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�Ellen Fred, Conservation Partners LLP

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Sustainable Economies Law Center

November 15, 2021

Case Study of Tsnungwe Council and Hlel-din Village

(pronounced “clay-el-ting”)

⏐ Sustainable Economies Law Center Seminar

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• Located in Humboldt County at the confluence of the Trinity River and �South Fork Trinity River

Ancestral land of the Tsnungwe people

Gathering and Ceremonial Activities at Hlel-din Village

View of Ceremonial Grounds at Hlel’din village with conservation property in background

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Gathering and Ceremonial Activities at Hlel-din Village, continued…

Crowd at Flower Dance Ceremony, Hlel’din village, 2015

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What is a conservation easement?

Donation versus mitigation/sold versus bargain-sale

• Sale
• Donation
• Bargain-Sale

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• Mitigation
• Habitat for endangered species
• Water banking
• Cultural resources

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An interest in real property/agreement between grantor and grantee

California Civil Code sections 815 – 816

• Definition of conservation easement (§ 815.1)

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• Perpetuity requirement (§ 815.2(a))
• The particular characteristics of a conservation easement shall be those granted or specified in the instrument creating or transferring the easement. (§ 815.2(d))

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For the purposes of this chapter, “conservation easement” means any limitation in a deed, will, or other instrument in the form of an easement, restriction, covenant, or condition, which is or has been executed by or on behalf of the owner of the land subject to such easement and is binding upon successive owners of such land, and the purpose of which is to retain land predominantly in its natural, scenic, historical, agricultural, forested, �or open-space condition.

California Civil Code sections 815 – 816

• Eligible holders (§ 815.3)
• (a) A tax-exempt nonprofit organization qualified under Section 501(c)(3) of the Internal Revenue Code and qualified to do business in this state which has as its primary purpose the preservation, protection, or enhancement of land in its natural, scenic, historical, agricultural, forested, or open-space condition or use.

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• (b) The state or any city, county, city and county, district, or other state or local governmental entity, if otherwise authorized to acquire and hold title to real property and if the conservation easement is voluntarily conveyed. No local governmental entity may condition the issuance of an entitlement for use on the applicant’s granting of a conservation easement pursuant to this chapter.

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• (c) A federally recognized California Native American tribe or a nonfederally recognized California Native American tribe that is on the contact list maintained by the Native American Heritage Commission to protect a California Native American prehistoric, archaeological, cultural, spiritual, or ceremonial place, if the conservation easement is voluntarily conveyed.

⏐ Sacramento County Bar Association Seminar

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Rights Granted to Easement Holder

• Identify, preserve, and protect the conservation values �of the subject property
• Enter the property to monitor compliance with the terms �of the conservation easement and to confirm, verify, and document a violation or threatened violation of the terms �of the easement
• Enforce the terms of the easement pursuant to its terms
• Unique rights
• Restoration
• Scientific research
• Cultural rights

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⏐ Sustainable Economies Law Center Seminar

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Unique Rights Granted to Tsnungwe Council

• i. Restore, conserve, and steward the Property’s natural and cultural resources;
• ii. Promote indigenous land and cultural stewardship through the application and sharing of traditional ecological knowledge related to traditional conservation and sustainable resource management practices, including for example: plant gathering; collection of seeds; digging bulbs/roots; cutting and pruning vegetation; tending of plants; and planting and dispersing seeds and bulbs;
• iii. Provide educational services about traditional cultural and ecological knowledge, including traditional land management principles and resource management methods that reflect Grantee’s cultural values;

⏐ Sacramento County Bar Association Seminar

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Unique Rights Granted to Tsnungwe Council, continued…

• iv. Host and engage in traditional recreational, cultural, ceremonial, and educational activities and gatherings, including without limitation: ceremonies, dances, games, and knowledge-sharing workshops, for members of Grantee and its guests and invitees;
• v. Perform a cultural resources survey of the Property to identify and determine whether additional cultural resources or archaeological sites are in need of protection, including ongoing documentation and monitoring of any such cultural resources, and perform other scientific and cultural research; and
• vi. Install cultural improvements, subject to Grantor’s review and prior written approval pursuant to the process described in Section 7 below.

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Questions?

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Ellen A. Fred�Traverse City, MI�(510) 290-0165�efred@conservationpartners.com

Nice to meet you...

Alejandra Cruz (she/her), Central Valley raised Mexipina/Chicana, Pericúes/Tarascan/Ilokano

Staff Attorney, Sustainable Economies Law Center, Food and Farm + Radical Real Estate Law School

: Alejandra, Teyo (partner), and Elena (daughter) with Ma Pita (grandma) at her 93rd birthday celebration

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“Audacity is our capacity” -MADR*

*Organizers from Mutual Aid Disaster Relief (MADR) in Puerto Rico

Warm-up/Cool Down

• Vocal Warm-Up
• Breathing, resonance, projection, articulation. These are four parts of the actor’s vocal warm-up, we can go through one or more of these before we start the role play
• Breathing: Diaphragm breathing, exhale with ‘s’ and ‘z’
• Resonance: Hum into the chest, the belly, the lower body, the face
• Projection: Javelin throw
• Articulation: Jaw massage, clasp hands and shake out jaw with vocalization
• An Actor's Warm-Up | Voice - YouTube
• Cool-down (after the role play has ended)
• Return to our natural state, someone can lead us in a relaxing stretch or grounding pose

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Who holds title?

Sogorea Te’ Land Trust is a 501c3 that can hold title to land and conservation easements

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It’s organizational purpose is charitable and educational and it’s activities further that purpose

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Donations to STLT are tax deductible

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STLT meets requirements for property tax exemption

For more information on entity choice be sure to check out our Legal Structures for Radical Real Estate webinar recording and slides.

Non-Profit Formation Steps

1. Verify entity name availability
2. File Articles of Incorporation
3. Choose Initial Board
4. Write Simple Bylaws
5. Hold First Official Board Meeting
6. File Statement of Information
7. Obtain EIN
8. Open a bank account
9. Set up employees
10. File CT-1 with Attorney General
11. File 1023 Tax Exemption Application
12. Step up financial systems
13. File fictitious business name/DBA
14. File CA 3500-A

Applying for Tax Exempt Status

“Charitable” purpose?

A “charitable” purpose is one of the seven exempt purposes specified in Section 501(c)(3) of the Internal Revenue Code. According to the Treasury Regulations, a charitable purpose includes:

• Relief of the poor, distressed or underprivileged;
• Advancement of religion, education, or science;
• Erection or maintenance of public buildings, monuments, or works; and
• Lessening of the burdens of government.

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(See Treas. Reg. section 1.501(c)(3)-1(d)(2)).

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Visit www.shelterwoodcollective.org

“Charitable” purpose?

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The promotion of social welfare can also be charitable when conducted by an organization designed to accomplish one of the enumerated charitable examples listed above or to:

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• Lessen neighborhood tensions;
• Eliminate prejudice and discrimination;
• Defend human and civil rights secured by law; or
• Combat community deterioration and juvenile delinquency.

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The IRS has also recognized 501(c)(3) exemption for organizations that promote health or protect and promote the preservation of the environment.

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Tax Exemption: Bylaws and Articles

Example of “charitable” purpose language to include in the Bylaws and Articles:

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• Create an educational land stewardship model
• Restore the ancestral territories and cultural traditions of California’s Indigenous Peoples
• Restore traditional/indigenous land stewardship practices
• Explore emerging approaches to ecosystem restoration
• Organized exclusively for charitable and educational purposes

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Tax Exemption: Activities

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Examples of language to include in the form 1023 narrative description of activities:

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• Protection and preservation of land in (insert geographic region)
• Includes lands received through donation, bequest of funds and property
• Includes conservation easements
• Community education tied to the land
• Cultural preservation and restoration (history, language, song, dance)
• Creation of a place to hold ceremony
• Restore traditional methods of land stewardship through preparation of food, traditional forms of recreation, gardening, etc.)
• Open and shared with all people living on this land
• Program for volunteers
• Multimedia educational tools (documentation and promotion of activities, fundraising)

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Welfare (Property Tax) Exemption

Not all 501(c)(3) exempt purposes qualify…

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To be eligible Revenue and Taxation Code (RTC) section 214(a)(6) requires both that

(1) property is irrevocably dedicated to charitable purposes, and

(2) upon dissolution the property will not be used to benefit any private person

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The Articles must reflect (1) and (2) and contain a irrevocable dedication clause and a dissolution clause

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Note: “Educational” is not a qualifying purposes for the welfare exemption but the term “charitable” includes certain educational purposes and activities, and educational nonprofits may qualify with reference to RTC § 214 in their Articles.

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See Exhibit C in the BOE’s Publication 149 for more information.

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Property Tax Exemption Forms

First-time filing:

• Organizational Clearance Certificate: File claim form BOE-277. Also submit:
• Organizational documents
• Tax exemption letter
• Financial statements
• Description of activities
• Welfare Exemption Claim: File claim form BOE-267 (for first time only)
• Also submit supplemental affidavits for each property if necessary

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Annual filing:

• Welfare Exemption Claim: File claim form BOE-267-A (for each year after first time)
• Also submit supplemental affidavits for each property if necessary

Tax Deductibility

Donation of land is only deductible if made to a qualified organization. Types of qualified organizations include:

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• Charitable corporation (like Sogorea Te’)
• Federally-recognized Indian tribal government agency (as long as property is used solely for public purposes)
• Note: Many tribes that were left out of federal recognition may or may not choose to seek federal recognition for many reasons.

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Deductibility

• When you donate property, you can generally donate the fair market value of the property at the time of the contribution.
• This deduction cannot exceed 60% of your adjusted gross income

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Tax Deductibility

Deductibility

• Carryover
• You can carry over deductions for contributions that exceed 60% of your AGI for 5 years after you make the contribution (or 15 years for qualified conservation contributions)
• Appraisal fees are non-deductible
• You generally cannot deduct the donation of a partial interest in property.
• Exception: If you donate a remainder interest in your home or farm, you can deduct the value of the remainder interest.

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Tax Deductibility

Qualified conservation contributions (QCC) are deductible.

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They are (1) Entire interest minus mineral interest, (2) Remainder interest, and (3) Restriction (granted in perpetuity)

• Contribution must be made for one of the following conservation purposes
• Preserving land areas for outdoor recreation by, or for the education of, the general public.
• Protecting a relatively natural habitat of fish, wildlife, or plants, or a similar ecosystem.
• Preserving open space, including farmland and forest land, if it yields a significant public benefit. The open space must be preserved either for the scenic enjoyment of the general public or under a clearly defined federal, state, or local governmental conservation policy.
• Preserving a historically important land area or a certified historic structure.

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Tax Deductibility

Deduction Limits

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• Generally, contributions of property to 501(c)(3) and 501(c)(2) organizations are limited to 50% of AGI.
• If you are a farmer or rancher who donates a QCC, you can deduct up to 100% of your AGI. If the property is continued to be used as farmland, then the easement must contain an affirmative ag clause, otherwise deduction is limited to 50%.

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Tax Deductibility

Additional Considerations:

• Is the real estate marketable?
• Will the sale be considered “prearranged”?
• Will qualified appraisal requirements or annual deduction limits apply?

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Shuumi Land Tax

Q & A

If you haven’t already, please submit your questions for our panelists.

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