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'Settlement concepts' offer remains viable in Cobell case

Part two

WASHINGTON - In an effort to rationalize the federal trust relationship with tribes and settle the litigation known as Cobell v. Kempthorne over federal accounting of the Individual Indian Money trust, the Bush administration has put forward a preliminary framework of ''settlement concepts'' that would ordain a federal withdrawal from management of the IIM trust in two phases over a 10-year period.

The priority of the first phase would be the consolidation of fractionated lands by voluntary and involuntary mechanisms. According to James Cason, associate deputy secretary for Indian affairs at the Interior Department (the federal government's lead delegate agency on Indian affairs and the defendant in Cobell), consolidation of fractionated interests in land is considered essential to realizing the economic value of IIM allotted lands. Interior's preference would be to purchase the fractionated interests of possibly all but the top nine or 10 interest owners of an allotment from voluntary sellers, he said.

Interior, as the only ''market'' offering cash payments for fractionated interests, has already purchased tens of thousands of interests, Cason added. ''So we have a lot of volunteers who are willing to do it.''

Ross Swimmer, Interior's special trustee for Indian trust issues, added that ''for the most part, we haven't found people unwilling to divest themselves of their interest for some sum of money. In fact, many of the people that we have purchased their interest from didn't even know they owned it. It's been passed down more by family history. People say, 'Well, you know, my great-grandfather used to own a piece of land up in South Dakota. Wonder whatever happened to it?'''

''Well they don't know that they own one-tenth of it today, because after several generations have gone through they just moved away, live east of the Mississippi, and they just didn't keep track of it. We [Interior] have to go dig these people out. So there are a lot of people out there like that, that you would almost have to have some form of involuntary transfer. We have forty-some thousand, even who are receiving money, that we can't locate. You can imagine people who have never received any income off this land, have moved away and fourth, fifth generation down from the allotment - they don't know they own it. And for us to try to go out and get a warranty deed from everybody that owns a tiny fraction is almost impossible,'' Swimmer said.

''But for the most part, those that we have contacted, been able to find, as long as they received something for their interest, they've generally been willing to sell. I don't know what the ratio is. I don't think we've had many turn-downs at all. But again we're only purchasing those interests that are generally less than 2 percent of the property.''

Cason and Swimmer concur, then, along with some other participants from Congress and the tribes in the discussions that produced the ''settlement concepts,'' that some form of involuntary transfer of interests in land will be required for the full consolidation of fractionated allotment interests. They also acknowledge that an involuntary transfer mechanism of any kind is bound to conjure up distrust, based on history if nothing else. That is one reason the settlement concepts insist the consolidated lands must remain in trust, inalienable from the tribe without its consent and, as property of the tribal and federal governments, untaxed.

''We, too, recognize that there's been a long history,'' Cason said. ''And some of the history's a little bit checkered, and it causes some feelings of angst in Indian country. And so one of the elements of the [settlement concepts] proposal that we were discussing with [Capitol Hill] was a clear statement that we would continue to hold all of this property in trust, and prevent involuntary alienation of this property. So it was a blanket statement from the front - the land would be in trust, we're not looking to take the land out of trust, we would prevent involuntary alienation of the trust - to address that very point.

''This is not termination. We're not trying to get rid of the land. What we're trying to do is change the character of how the land gets managed, and who's making the decisions about managing the land.

''So we tried to address that point up front, and there's a little bit of a - I'll say a complicator, in that there's not a way for us to make an absolute statement that no land will go out of trust. And the reason that is is because both Indian tribes and individuals have the right to say, 'I want to take my land out of trust.' So they do have the right to do that, so we have to basically preserve that option. But what we're saying is we will prevent, as part of our trust relationship, the involuntary alienation of the land. And based on our history here, we expect that in most cases tribal members and Indian tribes will want to keep their land in trust.''

(Continued in part three)