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Change in regulations would disinherit thousands of Indian landowners

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ALBUQUERQUE, N.M. - A pending change to the Indian Land Consolidation Act (ILCA) would disinherit thousands of American Indian landholders, according to the Indian Land Working Group.

The 2000 Amendments to the ILCA, which have been signed into law but not yet converted to Department of Interior regulations, would change its definition of "Indian" to an enrolled member of a tribe, rather than use the more liberal lineal descendant definition.

The more than 200 attendees at the Working Group's annual Indian Land Consolidation Symposium heard that this change, if implemented by DOI, would cut inheritance rights to heirs of Indian allotments who are not tribal members, either because they fail to meet blood quantum tests or for any other reason.

"Membership is a social or political concept. 'Indian' is blood. We never confused tribal member with Indian," said administrative law-judge Sally Willett at the meeting. Willett, a former DOI employee with twenty years of experience in Indian probate, called the change in definition "the ethnic cleansing of the American Indian."

Bill Ballew, who heads the planning department for the Lummi Nation of Washington state, told the meeting the change in definition would definitely have an adverse effect on his nation.

"Quite a few families will lose their land base," he said. What will happen is that the current generation will receive a life estate in the property, but won't be able to pass it along. "The next generation is going to be the one losing it," he said.

"It looks as if we're going to be stuck with this new definition of Indian so I guess we're going to have to find a way around it," he said. His tribe is considering a tribal "land assignment" in which the tribe could assign the allotment back to the affected family.

Austin Nunez, chair of ILWG and chair of the San Xavier district of the Tohono O'odham Nation, testified before Congress earlier this year that "at the Standing Rock Sioux Reservation alone, 4,096 heirs representing 15,749.44 acres will not be able to inherit."

Underlining the sovereignty issues for Congress, Nunez testified "Defining who can inherit is a tribal authority and needs to be determined by each tribal community."

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Helen Sanders, vice chair of ILWG, detailed other objections the group has to the passed amendments and others that are currently pending in S.1340, which is currently being considered by Congress.

Another is "joint tenancy with right of survivorship." Here, if an Indian landowner dies without a will, his heirs would inherit jointly, with the last surviving heir inheriting the land. This would have the effect of disinheriting descendants of the heirs who die first.

In her own case, Sanders said she would benefit from joint tenancy, since she is the last surviving sibling on one half of her great grandfather's allotment on the Quinault reservation in Washington. But this would unfairly disinherit her nieces and nephews, she said.

She also objected to the pilot project that allows the Secretary of the Interior to purchase small interests in allotments and deed them over to the tribe.

The idea is to try to lessen "fractionation" of Indian lands, caused by multiple heirs in succeeding generations getting an undivided interest in the land (her great-grandfather's 80-acre allotment on the Quinault now has about 80 heirs).

But, she said, the program is targeting the two-percent or less interests that were the focus of the Supreme Court case Babbitt v. Youpee. In that case, the high court found the previous taking of these tiny parcels unconstitutional, and DOI issued a directive to return those taken to their owners.

But, she said, by and large these two-percent "escheats" have not been returned, and buying them and donating them to tribes does not jibe with the Supreme Court decision.

Willett also said she objects to the "partition" provisions of the new amendments, feeling that they will lead to partitions of lands that can't be partitioned.

A "passive trust" provision is also problematic, she said, as it will cause large amounts of land to pass from trust to "fee" (private property) status.