WASHINGTON - The House of Representatives passed the American Indian
Probate Reform Act in the early morning hours of Oct. 7, amending the
Indian Land Consolidation Act with a series of measures designed to reduce
tribal land fractionation.
The Senate has already passed an identical companion bill, so S. 1721 now
goes to President George W. Bush. Legislative staff members in the House
and Senate, as well as the National Congress of American Indians, expect
the president to sign the bill into law with minimal delay.
The bill caps years of effort and negotiation on Capitol Hill and
throughout Indian country. Land fractionation, caused by equal division of
interests in heritable land among multiple heirs when a landholder dies
"intestate" or without leaving a will, has been recognized for almost 20
years as a leading cause of inefficiencies in the administration of the
Individual Indian Money trust (currently the subject of the lawsuit known
as Cobell, after lead plaintiff Elouise Cobell).
From enactment of the 1887 Dawes Severalty Act to the 1934 Indian
Reorganization Act which largely put a stop to the practice, once-communal
tribal land was divided among individual tribal members. Title to tribal
land and individual Indian land is held in trust by the federal government;
the Interior Department administrates earnings from the land, which are due
to Indian tribes and individuals. The costs of tracking individual
interests, receiving the royalties on fractionated land into accounts, and
delivering small checks to individuals has spiraled in recent years.
In addition, the partition of dwindled land parcels among dozens and even
hundreds of interest holders has made land-based economic development
impractical on the many so-called "checkerboard" reservations. Tiny
fractions of land are of little practical use; contiguous land, on the
other hand, lends itself to productivity - agricultural, industrial or
"With the enactment of this bill we're going to halt and, eventually,
reverse that problem," said Ben Nighthorse Campbell, the bill's lead
sponsor in the Senate.
The new law will create a uniform probate (i.e. inheritance) code, except
where similar tribal codes are in place, that provides for single heirs
when fractionated interest holders die without a will. Under the law,
tribes and individuals will be able to acquire highly-fractionated
interests during probate proceedings, or family members can agree to
consolidate their interests. (Tex Hall, president of the National Congress
of American Indians and chairman of Three Affiliated Tribes in North
Dakota, noted that the probate provisions of the law will not go into
effect for 18 to 24 months.) A federal land "buy-back" of interests program
will continue with additional funding; owners of fractionated interests
will have an option to consolidate; tribes will be able to establish their
own probate codes for members; and incentives will be in place for drafting
wills, among them a grant program to fund estate planning assistance on
"What this bill does is make land management effective for Native
Americans, and administrative management more efficient for the Interior
Department," said Rep. J.D. Hayworth, R-Ariz. "Both of these are worthy
goals, and this is a tremendous achievement."
Sen. Campbell, the Colorado Republican, an enrolled Northern Cheyenne
tribal member, retires at the end of the current 108th Congress. He called
the bill "my last coup," but added that it has been a group effort
involving many parties, including his own hard-working staff. He
acknowledged Secretary of Interior Gale Norton, Indian tribes and
organizations such as the National Congress of American Indians and
California Indian Legal Services and others, and individual Indian land
owners. "All of whom came together and we were able to develop a consensus
bill that really does what we need to have done."
NCAI also applauded Sen. Daniel K. Inouye, D-Hawaii, a co-sponsor and
Campbell's vice-chairman on the Senate Committee on Indian Affairs, for
helping to steer the bill through the Senate. On the House side, NCAI added
in a release, "Chairman Richard Pombo of the House Resources Committee
helped a great deal by moving the bill through the House."
Rep. Pombo, R-Calif., called the law "one of the largest achievements for
Native Americans in this Congress."
He closed the circle, so to speak. "I applaud the long, unwavering efforts
of Senator Campbell in bringing this bill to completion. Enactment of this
bill is a fitting tribute to his service on behalf of our First Americans."