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Who Were the Biggest Winners of the Cobell Settlement (Besides the Lawyers)?

Now that we have the obstacles cleared for the federal government to start making payouts under the Cobell settlement, we can expect tribal governments to begin their land consolidation processes. Recall that the settlement allocated $1.5 billion to be paid out to individual Indian holders of IIM accounts, $60 million for an Indian scholarship fund and the remaining $1.9 billion for tribal governments to consolidate fractionated allotment interests. According to the Department of the Interior, as of 2009 there were more than 4 million fractionated interests totaling somewhere around 11,000,000 acres of land; to put it into perspective, this is equivalent to a land area that would be larger than the states of Connecticut, Massachusetts, and Rhode Island combined. The Tribal Court Clearinghouse says that it costs $33 million (which is between 50% to 75% of the BIA’s realty budget) per year to administer those fractionated interests, many of them which may not even produce the amount of money it costs just to maintain the accounts.

Clearly, it's a problem. The fractionated interests are framed as a problem for tribes and individual Indians not just because of how much money it costs the BIA, but because they are said to have no value due to their "uselessness." Because hundreds or thousands of people may own interests in one allotment and law requires that if the land was to be developed by anyone of those people (even for something as simple as building a house), they would need the consent of at least 51% of the other landholders, a scenario unlikely to happen anywhere. This renders the land “useless” and “valueless.”

The BIA exploits the idea of useless, worthless land (and no doubt tribes also will in the upcoming land consolidation programs) to convince owners of fractionated interests to sell their interests back to the tribes in the interest of consolidating tribal lands, thus eventually eliminating the problem and creating greater possibilities for tribal development. And undoubtedly there will be many individuals who will see it as a quick way to make a few extra bucks on top of whatever settlement money they may have received as members of the accounting class for their IIM accounts. After all, who wants useless, worthless land?

However, there are other problems associated with the sale of these fractionated interests that have less to do with money and more to do with Indian identity and a sense of tribal belonging, connection to land and ancestry. Many of these fractionated interests are on reservations where there are minimum blood quantum requirements for tribal enrollment and many of the owners of fractionated interests are descendants of the original allottees, who were enrolled tribal members. But throughout the twentieth century, the federal government’s assimilation efforts through the Dawes Act and a population transfer of the majority of Indians to cities as a result of the relocation program of the 1950’s and 60’s led to a high rate of intermarriage with non-Indians (Indians intermarry at a higher rate than any other ethnic group in America). The children of those marriages often find themselves unable to meet the minimum blood quantum requirements for tribal enrollment. They may be classified as Indian descendants, inhabiting a netherworld of identity where one is neither Indian nor non-Indian in a legal sense--Indian for some purposes and non-Indian for others. For example, those descendants who have inherited fractionated interests are considered Indians by the BIA by virtue of their IIM accounts, even though they would be considered non-Indians and not qualify for other BIA services such as enrollment in tribal colleges.

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For these descendants--people who have already been denied inclusion into the tribal nation-- these fractionated interests may be all they have in the way of a tangible connection to their ancestry and their identities as Indian people. But their tribal governments will come to them offering money to buy back all they have left, and they will do it with the argument that by selling their interests they are helping the tribe to make the land more productive and valuable, thereby benefiting the rest of the tribe in the long run. But what will be the descendant’s benefit in the long run after the money’s gone? The tribe as a governmental entity will have gained back the land but the individual Indian/non-Indian will have sold off the last of their birthright, severing forever their ties to the lands of their ancestors.

As Indian people we grow up hearing the words of our elders that we should never sell our lands because it is like selling our mother, and that our identities as Indians is inseparable from our connection to the land. It is more than a little ironic that tribal governments will now ask thousands of people to do just that, and it will have everything to do with the racialized (and racist), colonial imposition of blood quantum which was designed to get rid of Indians in the first place. The Cobell settlement was supposed to right the wrongs of an oppressive government whose goal for hundreds of years has been to separate Indians from their lands, simultaneously accomplishing the goal of eliminating them in the process. And now tribal governments will, wittingly or unwittingly, repeat this history. What can we say, then, about the actual outcome of the Cobell settlement? That in reality it was more about fractionation relief than justice for individual Indians, with tribal governments coming out as the big winners.

Dina Gilio-Whitaker is a Native American educator and freelance writer specializing in Native American culture, both current and historical.