WASHINGTON, D.C. ? Some tribal members can count on one hand the amount of square feet of land they have inherited from their great-grandparents or grandparents. It causes plenty of problems for the families, tribes and the federal government.
Tribes for many years have asked that something be done about the fractionation of trust, fee and family acreages so that lease holdings can better be distributed and that some land would go to the tribe instead of being lost to non-Indian holdings.
Senate Bill 1340 is an attempt to solve some of the problems of trust holdings and land distribution. Sen. Ben Nighthorse Campbell, R-Colo., a landholder himself on the Northern Cheyenne Reservation, introduced the bill and asks that tribes contribute to its development.
"We must also be willing to roll up our sleeves and take a good hard look at the laws that provide the framework for the use and probate of Indian trust lands, especially trust lands that are in individual Indian ownership," Sen. Campbell said.
The Consolidation Reform Act would allow tribes to have more control over probate of inherited lands. Some tribal leaders say their laws should have priority over probate laws of the states and federal government.
The survivors of landowners who die without a will are subject to state probate laws. In most cases the inheritance of the land or estate gives each survivor a piece of the estate. Over the years some pieces of ranches and farms or original allotments from the 1887 Dawes Act may be now distributed to ownership of as little as two percent of the original allotment.
The amendments to the original land consolidation act will attempt to allow tribes more control and encourage individuals to initiate wills.
"Presently about 20 different state laws of intestate succession apply to the inheritance of Indian allotments. This makes it almost impossible for the federal government to provide general probate planning advice to allotment owners," Sen. Campbell said.
"Also, administrative law judges must monitor developments and changes in the probate laws of every state where allotments are located. This is simply an unnecessary waste of their time and tax dollars. The average Indian estate takes more than a year to probate, and in some cases a decedent's heirs will have died before the decedent's probate is completed. We can do better."
Tribes in the Great Plains and Rocky Mountain states have the most problems because of their large land bases. A chart that covers tribal ownership, fee lands, state lands, private ownership and non-Indian ownership would look like a radar-generated weather map during adverse weather conditions.
"As a rancher at my reservation, or as a business man, we all know that if you can block a parcel of land for grazing or farming or for business development, it is in the best interest economically to do that. This is a huge issue," said Tex Hall, chairman of the Three Affiliated Tribes in North Dakota and President of the National Congress of American Indians.
"We agree this is a most difficult bill to work on, but it's something that we strongly encourage. We think of this as a work in progress that we may have to amend later on."
Hall told the Senate Committee on Indian Affairs that a large portion of the Fort Berthold Reservation, where his tribes are located, has owners that have inherited only two percent or less of an estate. In some cases the land owned can be measured in square feet. He added that at some time tribal leaders must come together to find a way to eliminate small parcel land holdings and return the land to the tribes.
The Great Plains statistics show that 1.1 million people own small parcels of land. For the Rocky Mountain region, 800,000 people own small parcels, Hall told the committee.
Hall asked the committee to recommend $33 million be allocated to administer the parcels by the BIA. He said that figure is what it costs to administer the fractionated parcels and also asked that it be included in the FY 2003 budget.
Benjamin Speaksthunder, chairman of the Fort Belknap Tribal Council, said his tribe favors the repeal of joint tenancy in the consolidation act.
Land fractionation inhibits economic development because land in question may include small parcels owned by the tribe in pockets surrounded by other lands, and the small parcel might not yield enough revenue or potential for economic stability.
"The federal government's cost to upgrade and maintain land will be reduced. This is a very important contribution to the Indian Land Consolidation Act," said Neal McCaleb, Assistant Interior Secretary for Indian affairs. He spoke at a May 22 hearing on the proposed Senate bill.
"Because of the complexity of the probate it is operating to proliferate the fractionated interests. In the Midwest there are 120,000 individual interests. We have purchased 43,000. You would think it would be great headway, but because of proliferation of the fractionated interest we are just treading water. There are now 121,000 individual interests."
The bill allows for the establishment of a uniform intestate code that could act as a model for tribes to develop codes of their own.
"The proposed uniform intestate succession facilitates the consolidation of interests to remain in trust or restricted status and complements the provisions of the Indian Land Consolidation Act to minimize further fractionation of individual interest in trust and restricted land," McCaleb said.
The Allotment Act of 1887 did not allow for the individual allotment owners to establish wills for the distribution of land holdings to family members and other descendants. When a person died, the distribution was subject to the probate laws of the states, which were used as criteria by the federal government.
New amendments to the original Act provide for distribution of the estate by a valid will first, and if no will is written parcels of the estate would be distributed according to a tribal probate code. In the case of trust or restricted land where the code would not apply, the distribution of ownership will proceed according to the revised Act.
Without a will to direct descendant ownership of the estate, the deceased's spouse would receive one-half of the estate by virtue of the amended Act, and any children or grandchildren would share the other half equally.
Should no children or grandchildren survive the deceased, parents or brothers and sisters would then be part of the inheritance. What changes is the number of people who would be given small chunks of land or estates.
The amendment to the Consolidation Land Act offers provisions for the writing of wills that affect heirs and provide guidelines that families and the various governments can use as guidelines to establish proper heirs and inheritance values.
The bill addresses any inheritance of land by non-Indian spouses and non-Indian children that do not meet the tribes' criteria for enrollment. Those individuals will share in the inheritance just as would an enrolled member, according to the provisions of a will that meets tribal or the federal laws for the establishment of wills.
Enrolled members of one tribe would be allowed to inherit land within another tribe's jurisdiction with the provisions of a will.
Many tribes are establishing codes that will stop the inheritance of very small portions of land and turn the land into trust for the tribe. Minnesota tribes have an agreement with the BIA that states less than two percent of a parcel inheritance will be purchased by the BIA and turned into trust for the tribe. Many of the Lakota and Dakota tribes have addressed the same issue in council meetings.
"President (Theodore) Roosevelt was from our country. He had a ranch in North Dakota at Medora. He had a quote in his 1901 Sate of the Union address on the General Allotment Act. He said it was a great pulverizing engine designed to crush the Indian mass," Hall said.
"He went on to describe it. He said the goal of the United States was to treat the Indians as individuals, not as tribes. I think what he said summarizes nicely our problems. The Allotment Act destroyed the land base of tribal nations, and was intended to destroy the tribal land common ownership interest by splitting us into individual ownerships - each with equally inadequate parcels of land. I think Roosevelt thought if we owned land we would not be able to identify ourselves as tribal nations.
"Now 105 years later we are faced with the problem of how to fix this General Allotment Act."