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Land advocates oppose new legislation

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WASHINGTON - American Indian land advocates are decrying as seriously flawed a new measure on Indian land reform recently introduced by Sens. Ben Nighthorse Campbell, Daniel Inouye, and Tim Johnson.

According to the Albuquerque, N.M.-based Indian Land Working Group (ILWG), S. 550, the American Indian Probate Reform Act of 2003, and a predecessor bill "contain serious flaws that complicate tribal and individual land management, make administration of trust and allotments more difficult, and threaten the trust status of allotted lands."

The bill's sponsor, Sen. Campbell, a Republican from Colorado, chairs the Senate Indian Affairs Committee. Co-sponsor Sen. Inouye, D.-Hawaii, is the vice chair, and Sen. Johnson, D.-S.D., another co-sponsor, is also on the Indian Affairs Committee.

The other bill objected to by ILWG is the Indian Land Consolidation Amendments of 2000. Although passed into law, this measure has yet to be fully implemented.

ILWG, in an analysis in the premiere issue of its newsletter, Indigenous Land Reporter, says it will seek amendments to the new bill it says will provide "true probate reform and effective management of trust allotments."

ILWG listed no fewer than 11 amendments it feels will help correct a problem that has been festering ever since the 19th century Dawes Act that allotted land to individual Indians and then blithely allowed millions of acres of "leftover" land to pass out of tribal control.

Among the results of this dubious government policy has been the "fractionation" of individual allotments over the generations as dozens and hundreds of descendants now may have undivided interests in the allotments, making them unwieldy to use and benefit from. Sales of allotments have also led to a "checkerboard" effect on many reservations as the land went out of trust status upon sale and is now private property.

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The first amendment ILWG is seeking is that land title records must be updated. ILWG said it is a "travesty" that 13,000 small, "fractionated" land interests taken from individual Indians have not been titled back to them after the 1997 Supreme Court case Babbitt v. Youpee ruled these land transfers unconstitutional.

The second is to repeal the joint tenancy with right of survivorship (JTWRS) provisions. This provides that in some small land interests, only the surviving sibling can will the interest to an heir, effectively disinheriting the children of the other siblings.

The advocacy group would also like to repeal the definition of "Indian" in the ILCA Amendments as too restrictive, preferring documentable Indian descent to enrollment in a tribe. "At the Standing Rock reservation alone, 4,096 heirs representing 14,749 acres will not be able to pass their land on to their children," ILWG claims. However, S. 550 "includes a much expanded, inclusive definition."

ILWG also would like individual Indians to be allowed to purchase land in the current land acquisition pilot program being run by the Secretary of the Interior, in which the Secretary purchases interests of 2 percent or less of an allotment from willing sellers and then transfers title to the tribe.

Protecting the trust land status of off-reservation allotments is another key issue for ILWG. "Currently, if the owner of a trust allotment is not Indian under the new (ILCA Amendments) definition, the interests pass to heirs in (non-trust) status, further diminishing the trust land base," said ILWG.

It would also like to eliminate the concept of a "passive trust" for non-Indians, claiming that states will try to expand this provision to assert tax and jurisdictional authority over Indian people with allotments who are nevertheless not enrolled in the tribe. "This provision paves the way for further reducing the corpus of the trust - the land - as well as existing tribal authorities over checkerboarded lands within reservation boundaries," said the group.

ILWG would also like to see changes to partitionment provisions, saying that with fractionation growing more and more, it is much harder now to devise equitable partitions with ingress and egress for parcels which have many owners.

The group discussed many of these concepts at a symposium in Albuquerque late last year on the theme of "Securing Our Territories." It heard from several tribes that have managed to buy back or swap for parts of their ancient territories, including the Cochiti and Santo Clara pueblos of New Mexico.