WASHINGTON, D.C. - More than a century of methodology in the way American Indians pass parcels of land to their heirs may change if Congress approves proposed legislation.
The Senate Committee on Indian Affairs unanimously approved a bill introduced by Sen. Ben Nighthorse Campbell, R-Colo., and sent it on to the full Senate. The bill's intent is to reduce administrative snafus that occurred in the past through allotment acts and legislation that couldn't get past the U.S. Supreme Court. Campbell said the result has been poor management of lease payments and an estimated $2.5 billion missing.
One of the causes of bungled accounting practices, the BIA claims, is in dealing with family lands that pass to heirs in small percentages, creating hundreds of owners for a small parcel of land. In some cases owners can't be located and in others lease checks may total only a few cents a year.
"Today we begin real Indian trust management reforms by getting at the core problem - land fractionation," Sen. Campbell said.
"The current situation is yet another example of the federal government putting burdens on Indian country that do not exist anywhere else. If we are serious about self-determination, then we have to roll back arcane laws and put tribes in a position where they can compete for jobs and investment."
The bill attempts to reverse the 1887 Dawes Act which was designed to break up Indian reservations and promote assimilation. Since the law was enacted, the passing of each generation created more owners until some small parcels have hundreds.
The 1934 Indian Reorganization Act stopped the allotment policy and provided that tribes could begin to re-establish land bases. It did not, however, prevent the division of land interest between descendants of the landowners.
For example, if an American Indian landowner left 160 acres to four heirs, each would own a 25 percent interest in total acreage - they would not inherit 40 acres.
If each of the four heirs had four heirs, the interest in the land would be divided 64 ways leaving each with less than 2 percent of the total. With the new amendments, the tribes would gain control of the interests in the land after lease payments covered the purchase price. This is the most controversial portion of the bill, Campbell said.
The bill attacks the problem in three ways. First it would reform probate of interests in the allotted lands and place limitations on who can inherit the interests. Parents, children, grandchildren, grandparents, brothers and sisters of the decedent are eligible to inherit parcels of the land, provided it is not 2 percent or less of the parcel. Non-Indian or non-tribal member spouses are provided for in recommended probate laws the tribes are encouraged to incorporate.
Another provision of the bill will turn over 2 percent or less of the ownership to the tribe, unless provisions are made in a valid will. "This provision will be controversial, but the administration insists that it is necessary to address one of the root causes of our trust asset management difficulties," Campbell said.
"The Supreme Court found this section unconstitutional because it restricted American Indian's ability to pass their land interests to their heirs.
"In 1984 Congress amended the Indian Land Claims Act to provide that undivided interests of 2 percent or less only returned to the tribe if they were incapable of earning $100 in any one of the five years from the date of its owner's death. In 1997, the court once again ruled that the escheat provision of the act was unconstitutional," Campbell said.
This bill takes advantage of two court decisions and congressional deliberations to craft the amendments.
The provision to pass small parcels along to the tribes would come into play only after owners are notified.
Time frames for BIA review of tribal probate codes are set and the Secretary of Interior is authorized to acquire fractional interests on behalf of the tribe.
Proceeds from land leases will go toward the purchase price of the land which will be will be established by appraisals.
"The bill takes some steps to encourage and assist part-owners of allotments who are trying to consolidate the ownership of their allotments, and makes it federal policy to assist with transactions, such as land exchanges between those owning comparable fractional interests.
"This bill does not please all parties to the debate, but it is a good faith effort to achieve most of our shared goals. If these parties will work in good faith, I will do my part as chairman of the Indian Affairs Committee to convene hearings and work with them through the legislative process," Campbell said.