WASHINGTON - President George W. Bush signed the American Indian Probate
Reform Act of 2004 into law on Oct. 27, marking the federal government's
most ambitious effort yet to limit the fractionation of Indian trust land.
The bill, championed in Congress by the Senate Committee on Indian Affairs
under its chairman, Sen. Ben Nighthorse Campbell, R-Colo., with assistance
down to the last minute from Rep. Richard Pombo, R-Calif., chairman of the
Resources Committee in the House of Representatives, attacks fractionation
from several directions - a uniform federal Indian probate code instead of
the state laws that now govern Indian probate activity, an exception to the
federal code for tribes with their own probate codes in place, grants for
estate planning assistance on reservations, land consolidation options for
tribal members, continuation of a federal land "buy back" program,
cancellation of. the impracticable "joint tenancy with right of
survivorship" clause of the Indian Land Consolidation Act (which the new
law amends), greater flexibility for individuals and tribes to consolidate
and acquire interests during the probate process, forced sale at probate
(for fair market value) of interests in land of less than 5 percent, and
opportunities for estate planning among heirs at probate as well.
Theresa Carmody, secretary of the Indian Land Working Group and a past
master on trust land issues, said the new law puts a timely stop to the
worst features of fractionation. Ultimately though, she added, the law's
success will depend on improving some of the provisions it sidestepped for
now - "We're going to go back every year with technical amendments" - and
on funding appropriations from Congress.
Federal officials, on the other hand, focused on the good news here and
now. Interior Secretary Gale Norton called it indicative of the Bush
administration's commitment to trust issues. "This measure is one of the
pieces necessary for true trust reform."
Dave Anderson, head of the Interior-led BIA, stressed the economic value of
land consolidation as accomplished under the law as written. "The federal
government and Indian leaders have a mutual interest in promoting economic
viability on lands that are rapidly becoming converted into an unmanageable
mosaic of tiny interests due to fractionated ownership. This was one more
step in the right direction."
Ross Swimmer, the Special Trustee for American Indians at Interior, echoed
Anderson, but with an eye on the administrative costs and burdens that
would be lifted if fractionation can be scaled back: "The ownership of many
disparate, uneconomic, small interests has limited benefit in Indian
country. It has been feeding an administrative burden that continues to
drain resources and attention away from other beneficial Indian programs.
This new law is a meaningful step in our effort to improve the quality of
trust management services throughout Indian country."
Sen. Tom Daschle, D-S.D., a co-sponsor along with Campbell and Sen. Craig
Thomas, R-Wyo., said the legislation is long overdue. "It will allow tribes
to approach land probate with at once greater strategy and greater
sensitivity to individual preference."
The Indian Land Working Group decided to support the bill because it
addresses the most pressing problems in fractionation, Carmody said. Above
all, without the current amendment the Indian Land Consolidation Act would
have disinherited multi-tribe heirs with a narrow definition of "Indian" -
one-quarter blood quantum.
The 2004 law also quells the flight to fee patenting of trust land by
tribal members who noted that ILCA defines Indianness, and thus heirship,
by blood quantum. Fee patenting removes individual Indian land from tribal
dominion and from trust. But at least it permits owners to designate heirs
regardless of blood quantum, a crucial distinction given that inter-tribal
and non-Indian marriage has reduced the tribal blood quantum in some
families. For that matter, some Indians who have never had anything but
tribal blood in their lineage won't submit their legitimacy to enrollment
and its government-issued "poodle papers."
The Indian Probate Reform Act allows Indian trust landholders to designate
heirs according to bloodline instead. When a trust landholder dies
intestate, or without leaving a will, the new law allows bloodline
inheritance to two generations out - a provision that gives tribes plenty
of time to establish their own probate codes if they so desire (only eight
had done so as of June 2004).
Charlie Colombe, president of the Rosebud Sioux Tribe and a longtime
advocate of probate reform, emphasized the tribal role in probate under the
new law, in testimony before the House Resources Committee: "Virtually all
tribes favor the enactment ... because it offers tribes and their members
the chance to consolidate their land holdings while maintaining tribal
jurisdiction and tribal ownership of their lands."
But the new law also comes with problems, Carmody said. In the provision
for forced sale at probate of interests less than 5 percent, "Indian land
is being diminished," she said. The provision is "probably going to be
legally challenged." The balancing opportunity for estate planning among
heirs at probate is important, she agreed, but staff and resources to
assist are inadequate. Likewise, she said the estate planning grants
offered under the law could be applied to probate, but no funding has been
allocated for that purpose.
The buy back pilot program at the Interior Department is operating outside
the Code of Federal Regulations, she said, because Interior doesn't notify
co-owners in an allotment that an interest in their land is up for
purchase. In any case, Carmody added, tribes and individuals should be more
involved in the pilot, so that funding eventually goes straight to tribes
rather than to Interior.
Underlying every other challenge facing the law, Carmody said, is the state
of land and title records. Probate officers and title examiners are sorely
needed. Because they are so scarce and the government has failed in
previous attempts to slow down fractionation, Carmody said, many
transactions have been title-certified in error, under a standard later
found in the courts to be unconstitutional, but never corrected on title
documents. Many other transactions await title certification.