[Senate Hearing 107-512]
[From the U.S. Government Publishing Office]
S. Hrg. 107-512
INDIAN LAND CONSOLIDATION ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
S. 1340
TO AMEND THE INDIAN CONSOLIDATION ACT FOR PROBATE REFORM WITH RESPECT
TO TRUST OR RESTRICTED LANDS
__________
MAY 22, 2002
WASHINGTON, DC
U. S. GOVERNMENT PRINTING OFFICE
80-294 WASHINGTON : 2002
___________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota
JOHN McCAIN, Arizona, HARRY REID, Nevada
PETE V. DOMENICI, New Mexico DANIEL K. AKAKA, Hawaii
CRAIG THOMAS, Wyoming PAUL WELLSTONE, Minnesota
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
S. 1340, text of................................................. 2
Statements:
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs................. 1
Hall, Tex, chairman, Three Affiliated Tribes Business
Council, president, National Congress of American Indians.. 25
Lyons, Maurice, chairman, Morongo Band of Mission Indians.... 29
McCaleb, Neal, assistant secretary, Indian Affairs,
Department of the Interior................................. 23
Nunez, Austin, president, Indian Land Working Group.......... 33
Speakthunder, Benjamin, president, Port Belknap Community
Council.................................................... 31
Supernaw, Kathy, BIA, Department of the Interior............. 23
Appendix
Prepared statements:
Hall, Tex.................................................... 41
Headdress, Arlyn, chairman, Assiniboine and Sioux Tribes,
Fort Peck Reservation...................................... 45
Lyons, Maurice (with letters)................................ 49
McCaleb, Neal................................................ 39
Murphy, Charles, chairman, Standing Rock Sioux Tribe (with
attachments)............................................... 57
Nunez, Austin (with attachments)............................. 66
Pfeffer, Michael S., executive director, California Indian
Legal Services (with attachments).......................... 124
Speakthunder, Benjamin....................................... 47
Thomas, Hon. Craig, U.S. Senator from Wyoming................ 39
Additional material submitted for the record:
Lewis Sr., Virgil, chairman, Roads, Irrigation, Land
Committee, Confederated Tribes and Bands, Yakama Nation
(letter)................................................... 146
Matt, Fred D., chairman, tribal council, Confederated Salish
and Kootenai Tribes, Flathead Nation (letter).............. 134
O'Neil, Ben, enrolled member, Shoshone Tribe (letter)........ 143
Wahpat, Robert N., chairman, Yakama Nation Tribal Council,
Confederated Tribes and Bands, Yakama Nation (letter)...... 146
INDIAN LAND CONSOLIDATION ACT
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WEDNESDAY, MAY 22, 2002
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m. in room
485, Senate Russell Building, Hon. Ben Nighthorse Campbell
(acting chairman of the committee) presiding.
Present: Senator Campbell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Campbell. Good morning. The committee will be in
session.
I want to thank our Chairman, who is out for a few days,
for continuing to encourage Indian trust management reforms and
for scheduling today's hearing. I also want to welcome our
witnesses to discuss S. 1340, the Indian Probate Reform Act,
the bill that I introduced in August 2001. During the last
Congress, the committee worked very hard to develop the Indian
Lands Consolidation Act Amendments of 2000 to see it signed
into law on November 7 of the year 2000.
[Text of S. 1340 follows:]
Senator Campbell. The 2000 ILCA amendments addressed two
pressing needs--removing the parts of the ILCA that were
invalidated by the Supreme Court and updating the misinformed
and sometimes simply outdated Federal laws dealing with Indian
probate and the use of Indian lands. As we worked out the ILCA
amendments last session we learned why it has proven so
difficult for Congress to address this important work over the
decades. Every issue we addressed required us to take a stand
on unresolved questions and often there were no easy answers.
For example, allowing a person to devise his land to any of his
heirs or relatives would allow the land to pass out of trust
when it is devised to non-Indians. Without easy solution or an
unlimited amount of money to allow us to buy our way out of
these problems, the best we can do is to try to work together
and try to give this our best shot in trying to accommodate
everyone's interest as well as we can. I am pleased that most
of the 2000 amendments are going into effect with little or no
controversy.
S. 1340 gives us an opportunity to take steps to reduce the
amount of time to complete the probating of Indian estates.
Currently, some 20 State laws of intestate succession apply to
the inheritance of Indian allotments, which makes it nearly
impossible for the U.S. Government to help allottees with
probate and estate planning. The various State laws also create
headaches for administrative law judges who are forced to
monitor legal and policy developments in the 20 States. S. 1340
will reduce that number to one uniform law, unless the tribe
decides to enact its own pobate rules.
The President's budget request includes a new and stronger
emphasis on probating Indian estates by including millions more
dollars for probate activities. I am also pleased that
Secretary Norton is making true trust enhancement a high
priority for her Administration. Congress shares responsibility
for trust reforms, not only in providing adequate resources,
but in taking an honest look at laws that govern the use and
probate of trust lands, especially trust lands that are in
individual Indian ownership. S. 1340 will allow us the
opportunity to complete the work we began last Congress by
establishing uniform Federal Indian rules.
With that, we will start with the witnesses. I understand,
Neal, that you have an airplane out. Is that correct? So why
don't we go ahead and start with you, and at the end of your
testimony, if you want to put your complete written testimony
in the record, that will be fine. If you have a real tight
schedule, be as brief as you like, and then at that time you
are sure welcome to be excused.
Mr. McCaleb. With your permission, Mr. Chairman, I would
like to invite Kathy Supernaw to join me. She is the resident
expert at the Bureau of Indian Affairs on probate, and this is
a little bit technical legally for an old civil engineer, so I
may need a crutch to answer any questions.
Senator Campbell. That will be fine.
STATEMENT OF HON. NEAL McCALEB, ASSISTANT SECRETARY OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY KATHY
SUPERNAW, BUREAU OF INDIAN AFFAIRS
Mr. McCaleb. Thank you very much, Mr. Chairman. I very much
appreciate the opportunity to appear before you today and
present the views of the Administration on S. 1340, as you
said, a bill intended to amend the Indian Land Consolidation
Act of 2000 to provide for probate reform with respect to trust
and restricted lands.
Let me say at the outset, we support the bill. It is a
useful bill and a needed bill. In particular, I want to commend
your staff in their efforts in developing the legislation. S.
1340 will provide the American Indian people who own trust and
restricted land and restricted assets with a uniform probate
intestate code that can be applied throughout Indian country.
The legislation is clearly the product of a lot of hard work on
detailed and technical issues by departmental employees and
members of your staff in order to achieve this important common
goal of improving Indian probate programs.
During the tribal consultations held in July and August
2000 on the proposed probate regulations, the tribes
recommended and supported a uniform intestate code. At the
present time, Federal statutes provide that the law of the
State where the land is located be applied in the distribution
of the estate. As a result of intertribal marriage, it is not
uncommon that an Indian decedent owns land on reservations in
several States. The effect of applying up to 33 different State
laws to the restricted and trust lands of a decedent results in
disparate and unfair treatment of the distribution of the
entire estate to the same heirs.
For example, in Nebraska the surviving spouse is entitled
to receive the first $50,000 of the estate, and thereafter the
law provides that the surviving spouse receive one-half and the
children get one-half of the remainder of the estate. Minnesota
law, however, provides that the surviving spouse will get the
first $150,000 plus one-half of the balance of the intestate
estate if all the heirs are also heirs of the surviving spouse.
There are several examples here in the testimony of the
disparity between the different States that exemplify this
problem. I will not go through them all.
Another area of concern is the inheritance rights of
adopted children and the inconsistencies in the State laws.
Minnesota law provides that an adopted child may inherit from
his or her natural parents, while Montana law provides that an
adopted child may only inherit from the adopted parents. The
enactment of a uniform intestate code for trust and restricted
estates is a great benefit both to the heirs and to the
Department. The benefit to the heirs is the same law will be
applied to all trust and restricted estates of the decedent, no
matter where the real property is located. A uniform intestate
probate code will provide for the division of the shares of the
entire estate and will be the same throughout the United
States. The heirs may disclaim their interests or otherwise
agree to the settlement to distribute the estate if a child or
children want to give a larger share to the surviving parent.
The Federal Government's cost to update and maintain land
records will be reduced.
This is a very important contribution to the Indian Land
Consolidation Act because of the complexity of the probate. It
is operating to proliferate the fractionated interests.
Although it is an aside that is not in the testimony, in the
Midwest we have been doing the pilot project on land
consolidation. There are 120,000 individual interests. In the
last three years, we have purchased 43,000, which you would
think would be great headway, but because of proliferation of
the fractionated interests, we are just treading water. There
are now 121,000 individual interests. So this is a problem that
needs an aggressive approach, and this will be a contributing
factor to assist in that.
Finally, a uniform intestate code may encourage the Indian
tribes adopt their own inheritance codes. The uniform intestate
code will serve as a model for tribes to develop their own
tribal probate codes. The proposed uniform intestate succession
facilitates the consolidation of interests to remain in trust
or restricted status and complements the provisions of the
Indian Land Consolidation Act to minimize further fractionation
of individual interests in trust and restricted land.
I would comment in terms of some comments on the bill. We
recommend that S. 1340 include a provision that excepts the
application of the uniform intestate code to the Five Civilized
Tribes in the State of Oklahoma I am a member of one of them,
until such time as the Five Nations bill is enacted. Currently,
the Five Civilized Tribes are subject to the State District
Courts of Oklahoma and Oklahoma probate law is applied to
determine the intestate succession. Thus, the removal of the
exception should be reflected in S. 2880 and the Five Nations
legislation.
We have some other tweaks, really cleanup language in the
bill, that is contained in the testimony that will speak for
itself, and we will leave it at that.
With that, Mr. Chairman, I would just like to thank you
again for the hard work of your staff in cooperation with the
Department in drafting this much-needed legislation. I will be
happy to answer any questions that you may have.
[Prepared statement of Mr. McCaleb appears in appendix.]
Senator Campbell. Thank you.
My staff tells me it is one of the hardest bills they have
ever tried to put together, by the way.
Before you run, let me ask you just a couple of questions,
Neal. Is it fair to say that the land pieces that are owned by
Indian people are getting smaller and smaller because of the
proliferation as families grow?
Mr. McCaleb. Oh, absolutely. That is right.
Senator Campbell. And because the States, so many of them
have different laws applying to inheritance, is it possible for
an Indian youngster adopted by an Indian family, but is not
enrolled in that tribe, to inherit that land from the parents
in some States?
Mr. McCaleb. I am going to defer to my expert here.
Ms. Supernaw. It depends on the State law.
Mr. McCaleb. That's what I mean. Can that happen in some
States?
Ms. Supernaw. Right. It is different, and State law does
not address tribal membership. It is just natural parents.
Senator Campbell. Yes; well, does that mean also if an
Indian family adopted a non-Indian youngster in some States
could that youngster inherit that land?
Ms. Supernaw. Yes.
Senator Campbell. Yes; complicated. Well, I appreciate your
willingness to work with the committee on those little glitches
we have, and certainly appreciate your support of the bill,
too. I have a few more questions, but I know you have a plane
out, so what I will do with the last few, I think I will submit
them in writing--if you could answer those in writing. They are
just small questions, but I would appreciate it if you would do
that.
Mr. McCaleb. Thank you very much, Mr. Chairman.
Senator Campbell. Thank you.
The next panel will be made of Tex Hall--Tex, nice to see
you again--from the Three Affiliated Tribes; Maurice Lyons,
chairman of the Morongo Band of Mission Indians from Banning,
CA; and Benjamin Speakthunder, president of Fort Belknap's
Community Council; and Austin Nunez, the president of Indian
Land Working Group of Wagon Mound, NM.
We will proceed in that order, too, if it is all right. So
we will just go ahead and start with you, Tex. Thank for
appearing here again--twice in 2 weeks.
For all of the witnesses, if you would like to abbreviate
or depart from your printed statement, we will include your
complete statement in the record.
Tex.
STATEMENT OF HON. TEX HALL, CHAIRMAN, THREE AFFILIATED TRIBES
BUSINESS COUNCIL, AND PRESIDENT, NATIONAL CONGRESS OF AMERICAN
INDIANS
Mr. Hall. Thank you, Mr. Chairman, and members of the
committee and staff--Pat and Paul and Steve. I really
appreciate the opportunity to present on behalf of the National
Congress of American Indians.
I do have a chart I would like to show that really gives an
example of the fractionation. I will just use my tribe as an
example. The brown indicates the two percent and less. So Mr.
Chairman and members of the committee, you can see. I have not
done the exact math, but it appears to me in talking with our
legal counsel John Dossett from NCAI, it appears it is about
one-half of the two percent and less interest on Fort Berthold
in that brown right there. So that is a tremendous problem as
we look to develop economically for housing, for business
development and so on and so forth.
As a rancher at my reservation, we all--or as a
businessman--we all know that if you can block up a parcel of
land for farming, for grazing, or for business development, it
is in the best interest economically to do so. So this is a
huge issue and I very much agree with the comments that you
expressed at the outset that this is probably the most
difficult bill I am sure the staff has had to work on, but it
is something that we strongly encourage. We think of it almost
like a work in progress, Mr. Chairman, that we may have to make
some amendments later on. So I just wanted again to show some
of the--the white track is the FELA and that was the Homestead
Act at Fort Berthold. So about one-third of what we call the
northeast quadrant was part of the 1910 Homestead Act.
So you see the gray is the two to five percent, and then
the green is the 5 to 10 percent, and the light green is the 10
to 25, and then the kind of yellow is the 25 to 50, and the
lighter shade is 50 to 75, and then the off-white or the gray
is 100 percent track. And so, at some point in time, I would
hope that we can have a discussion with some of the tribal
leaders that are very interested in this, and the committee, on
looking at a mechanism to allow a buying of 100 percent
allotment and how we can move forward on that issue, so we can
eliminate those browns and the off-whites or the grays.
Mr. Chairman, I gave my written testimony, and I just have
a few comments, and I want to talk in general and then more
specific. President Roosevelt was from our country. He had a
ranch out in North Dakota, in Medora. And he had a quote in his
1901 State of the Union Address on the General Allotment Act.
He said it is a great pulverizing engine designed to crush the
Indian mass. He went on to describe what he thought the goal of
the United States toward tribes should be, and he said, we must
treat the Indians as individuals, not as tribes. I think what
he said summarizes nicely our problem. The Allotment Act
destroyed the land-base of tribal nations, and was the basis of
the General Allotment Act. It was intended to destroy the
tribal land common ownership interest by splitting us into
individual ownership of landowners, and each with really
inadequate parcels of land. I think Roosevelt thought if we
owned land, we would not be able to identify ourselves as
tribal nations. So all tribes are really looking at this Indian
Land Consolidation Act amendments now as we try to reduce those
2 percent.
Now, 100-plus years later and five generations, we are
faced with how to fix this General Allotment Act because, as
you know, it did not provide for mechanisms to escheat or to
pass down to our heirs. You simply could not do it. That is why
on all trust lands, we have this problem. It is just
fractionation, fractionation with many of our tribal members
not having wills and not having that process, or not having a
uniform probate where it differs if we follow the State law,
which the General Allotment Act did. As Mr. McCaleb indicated
in his testimony, you may have an individual owner from several
different States.
So I do have a--I wish I could have presented it in a
power-point, Mr. Chairman, but I could leave this. This is a
bar graph. This is from the Land Records Information System,
which the Bureau calls the LRIS. It shows all of the 12
regions, so this is the Great Plains, and this up here
indicates 1.2 million landowner interests. In the Great Plains,
we have 1.1 million number of interests, and then the Rocky
Mountain is next with 654,000 number of interests. This is the
pie chart of the landowner interests. In the Great Plains,
there are 37 percent; Rocky Mountain is 21 percent of the
landowner interests, so there are 1.2 million interests.
The third chart of the LRIS is the number of trust
allotments or tribal tracks. Again, the Great Plains on the pie
graph is 33 percent of the tribal tracks. Rocky Mountain is 21
percent, and the Northwest is 19 percent, and so on and so
forth. And then again, it shows--this is the bar graph of
tribal tracks again. There are 58,000 tribal tracks; Rocky
Mountain, 37,000; Northwest, 34,000. This is the nationwide IIM
accounts data, Mr. Chairman and members of the committee.
Again, the number of IIM accounts in the Great Plains is
67,249; in the Rocky Mountain, it is 34,462; and the Western is
29,000. And then again, this is the pie graph of the national
IIM accounts that shows the Great Plains has 27 percent of the
IIM accounts.
Of course, as Mr. McCaleb had indicated, there is a fee.
There is a fee that has to go to administering those
fractionated interests. And so clearly we have to have the
funding for the--I mean, that is the goal here. So one of our
recommendations is not for anything less than $33 million. We
are looking at the Bureau's formula--not formula, but the
amount of money it takes to administer those fractionated
parcels is about $33 million. So that would be one of our
recommendations, Mr. Chairman, is that we include that in our
budget for fiscal year 2003, that funding base of $33 million.
Just a couple more comments, Mr. Chairman. Of course,
section 207 was designed to prevent Indian lands from passing
out of trust. Non-Indian heirs will generally only receive a
life estate on Indian lands. But because the non-Indian heir
owns less than a full interest, a remainder interest is created
and this remainder interest must go on to an Indian. If there
are no such heirs, a remainder may be purchased by any Indian
co-owner of the parcel, and the proceeds of such a sale are
made a part of the decedent's estate. If no offer is made to
purchase the parcel, the remainder interest then passes on to
the tribe. We greatly support this portion.
In some instances, the Indian owners of trust or restricted
land may not have an Indian heir, and the general rule would
deprive such people of the ability to devise more than a life
estate to their heirs. The 2000 Amendments provide an exception
for such people. They may devise an interest to either their
heirs of the first or second degree, or collateral heirs of the
first or second decree. Because these people are non-Indian,
the interest would pass in fee, not in trust. This does concern
us somewhat. But there is an option for these interests to be
purchased by the tribe, which we definitely support. We would
like to consider more technical amendments to this section.
And then finally on the section 207, it is intended to
address fractionation by limiting the way the Indian land
passes as a joint tenancy in common. So if a person devises
interests in the same parcel to more than one person, it is now
presumed to be a joint tenancy with right of survivorship,
meaning that each of the decedent's heirs share a common title,
so that the last surviving member of the group obtains a full
interest as it was owned by the decedent. So any interest of
less than 5 percent passing intestate or people without a will,
succession will also be held by the heirs with the right of
survivorship. The Secretary of the Interior must certify that
it has the capacity to track and manage interests that are held
with the right of survivor for this provision to take place. We
strongly support that provision, Mr. Chairman.
We really have to do something here. I really appreciate
the committee's attention to this issue because if we do not,
it will just continue to multiply and multiply. It will
basically render our land-base useless for an entire--this is a
one million acre reservation, Mr. Chairman.
Finally, we do have some recommendations. Again, we
recognize the need for the type of amendments that are proposed
in S. 1340 regarding devise to non-Indian heirs. In a general
sense, we support them, but we would like to get a little bit
more recommendations from other tribes as they are continuing
to send us testimony and talk to us about the specifics that,
number one, would keep the land in trust status and under
tribal jurisdiction. We do not want to get into a situation
where we are separating, like in the Cabell lawsuit where you
have the individual IIM accountholders in a suit, and then you
have the tribal assets over here, and then we are really going
in separation, where we do not have the tribal government being
a part of that whole mix. We think that our discussions and our
amendments should include the tribal jurisdiction. I think that
is probably one of the most important things that I would add
today, in addition to the funding--this support for tribal
jurisdiction.
And number two, take a closer look at the limitations of
approval of tribal probate codes as this is a direct
interference with tribal self-government. So again, it seems
like we are going in conflict there on the probate code. Again,
we have to have that discussion with tribal governments, and
Mr. Chairman, we all know that if we work with the tribes and
we have something in concert, it will work a lot better that
way.
And number three, and this is just a simplification
recommendation, is that somehow we have to simplify the
amendments or the acts so they are more user-friendly, so the
people that are doing this in the field, in reality, in the
Bureau and at the tribes, are more--and of course, as we are
working with our constituents with our tribal membership, are
more able to use these amendments in a more easier manner, in a
more timely manner.
And I did mention the need for $33 million--and I think--
just to finish my thought under the tribal governments and the
tribal programs, Mr. Chairman, at NCAI we are also researching
some ideas. On page six of my testimony, Mr. Chairman, we have
four recommendations right there. We are researching some ideas
that would expand the efforts tribal land consolidation
programs, including a categorical exemption from NEPA, either
legislative or through Interior regulations, in order to reduce
the time and expense related to land transfers. We are still
waiting for--this is part of the LRIS system, and this is still
locked up since December, Mr. Chairman. I just wanted to state
that we have submitted a letter to the committee asking the
Department of the Interior to turn the system back on because
any land transactions, any housing developments are frozen
right now since December. Any probate action is still frozen
because the system is still shut down. So this is imperative
that we reduce the time and expense and that we allow the
system to get back on-line so we can continue land transfers,
land exchange and leases, lease approvals, and probate
information that comes through the system.
No. 2, provide tax bond financing to tribes to acquire
lands for consolidations. And number three, loan programs that
provide Federal funding to buy down the cost of a loan--that
buys down points on the interest rate; and four, develop a tax
credit for turning in fractionated interests or other tax
credit structures or incentives for owners of fractionated
interest.
In most part, Mr. Chairman, if we do not have some sort of
mechanism like we are seeing in our amendments, there will
still be a lot of tribes that are not able to use land, and
many tribes still remain landless. So again, we support in a
general sense. We realize that this is a big issue, but we have
to move forward on this to stop the fractionation. So we
support the amendments to the Indian Land Consolidation Act,
but again, we would like to provide some more technical
amendments as more tribes are wanting to provide more
testimony, Mr. Chairman, and I do not know if it is possible to
allow a little bit more time for the record to remain open. I
just offer that. I would take any questions after the speakers
are done.
Thank you.
[Prepared statement of Mr. Hall appears in appendix.]
Senator Campbell. Okay. Some of the suggestions I think are
really good. Some of them might create a problem. We will have
to work with it, because some of them might require separate
legislation. We might not be able to do it because it might not
come under the jurisdiction of this committee. But we will
certainly look into them.
You used the word ``simplify.'' By the way, let me tell
you, in the Senate, that is an oxymoron when you try to
simplify anything. [Laughter.]
Let's go on with Maurice Lyons. Nice to see you again,
Maurice.
Mr. Lyons. You too, Chairman, Vice Chairman.
STATEMENT OF HON. MAURICE LYONS, CHAIRMAN, MORONGO BAND OF
MISSION INDIANS
Mr. Lyons. We would like to thank the Chairman and Vice
Chairman Campbell for inviting Morongo Band of Mission Indians
to testify today concerning the amendments of the Indian Land
Consolidation Act of 2000. We strongly encourage the committee
to move forward with the problems that have become apparent
under current law.
I would like to begin by thanking Senator Campbell for his
request to the Department of the Interior to delay
implementation of certain provisions of the act, pending
further congressional review. Concerns have risen in Indian
country about the consequences both intended and possibly
unintended of those amendments.
Morongo Reservation is located 17 miles west of Palm
Springs. Our tribal membership is 1,200. We are a small
reservation compared to some of these back this way. Our
reservation is comprised of 33,000 acres that is held in trust,
of which 31,000 is held in trust for the tribe and 1,200 acres
is allotted lands. We continue to fight--we are working right
now to find out how many of our people own interests in other
reservations, and how many other people own interests in our
reservation. That is something we really need to find out.
Myself, I own interests in three different reservations.
Senator Campbell. We are not going to be able to
consolidate them. [Laughter.]
Mr. Lyons. No; and they are not big interests. They are
small interests.
Senator Campbell. Okay.
Mr. Lyons. We at Morongo share the Congress' desire to
preserve the trust status of existing allotments on Indian
lands. We appreciate the committee's hard work in 1992 and 2000
to strike a balance between the Indian Land Consolidation Act
Amendments of 2000, between individual property rights and
interests of allottees, and the sovereign rights and interests
of tribal governments. However, there may be a few unintended
consequences from this legislation. For example, because of the
way the act now defines ``Indian,'' the Morongo band is faced
with having to revise our enrollment to meet the needs of some
of our people. There are real-life consequences under the
present provisions.
Take a Morongo tribal member, Eva Giordani, she is 82 years
old. She has four grandchildren. Two of them were enrolled, two
could not be enrolled because they did not meet our enrollment
criteria. She wants to leave her estate--she has a house and
some land--she wants to leave it to all of them, but she cannot
do that because it would go out of trust. One-half of it would
go out of trust if she did that. And there is Yvonne Finley.
She worked all her life to get her house on the reservation
done, and she has two kids. One daughter has three children
that cannot be enrolled because of the criteria, and they
cannot inherit land because it goes out of trust.
I think we can fix this problem under current law. We have
some suggestions. First, Congress should adopt the proposed
ILCA the same definition of ``Indian'' as the Indian Health
Care Improvement Act. Second, the committee should revise the
concept of non-Indian estate in Indian land. That would allow
the descent and distribution to non-Indians of a unique form of
estate in trust in restricted lands. As you may recall, such an
interest was included in a bill reported out of committee
during the 106th Congress, S. 1586, but it was stripped from
the bill just prior to full Senate consideration. Under the
``non-Indian interest in Indian lands,'' a non-Indian would be
eligible to continue living on lands or receive proportionate
shares of revenue produced by the parcel of land, but the
underlying title of the land would be held in trust for the
tribe.
We believe this solution would help our tribal members who
are interested in making certain lands remain in trust so the
heritage of the tribe can be protected. We also provide them
with the ability to transfer something of lasting value to
their children. Right now, they cannot do that.
Finally, I would like to make one final comment concerning
S. 1340. We believe that the proposed section 233 concerning
collection of past-due and overdue child support is best
addressed under separate legislation. This bill should focus
only on Indian probate and trust property, not trust income.
Thank you for your consideration we know you will give to
these important issues. Thank you.
[Prepared statement of Mr. Lyons appears in appendix.]
Senator Campbell. President Speakthunder, please go ahead.
STATEMENT OF BENJAMIN SPEAKTHUNDER, PRESIDENT, FORT BELKNAP
COMMUNITY COUNCIL
Mr. Speakthunder. Good morning, Mr. Chairman, and members
of the committee. Tex Hall, Maurice Lyons, Austin Nunez, thank
you for providing the testimony here today.
I am Benjamin Speakthunder, chairman of Fort Belknap Indian
Community Council. Today, I would like to present as far as
being members of the Assiniboine Nation and Gros Ventre Nation,
Fort Belknap. I am extremely honored to be able to address the
committee on this very important complex issue, which we are
able to address this committee on a very important process
throughout the United States, faced on a daily basis. The issue
I am speaking about all impacts our tribes, both the
Assiniboine and Gros Ventre people of Fort Belknap and other
Nations are respectable that is in complicating heirship,
otherwise known as undivided interests.
With respect to S. 1340, the Indian Probate Reform Act of
2001, I offer the following comments on behalf of Fort Belknap
Indian Reservation. Neither the General Allotment Act, Dawes
Act nor the individual Allotment Acts contains any provisions
for rights-of-way on or across lands to access other lands.
However, we feel that this should be one of the points in
advising persons who make wills to consider reservation of
rights-of-way on or across lands. In addition, the title status
reports need to be corrected to reflect the right-of- ways of
the current status.
Section 232 relating to the interstate interests and
probate and other heirs include great-grandchildren, direct
lineal descendants to be included in the appropriate sections.
In addition, the current definition of ``Indian'' must be
repealed. This definition will harm Indian country and cause
jurisdictional problems, or cut off far too many people who are
Indian, yet not enrolled for a variety of reasons. A
restrictive definition of ``Indian'' will reduce trust
landholdings. Defining who can inherit is a tribal authority
and need to be determined by each respective tribal community.
In order for true consolidation to take place, we recommend
that a provision be included within S. 1340 that repeals a
joint tenancy provision within the current Indian Land
Consolidation Act. Creation of a joint tenancy with a right of
survivorship for 5 percent of less interests prevents interests
from being passed to eligible heirs, namely children.
With respect to the intent of the Indian Land Consolidation
Act and subsequent amendments, we think that the tribal probate
code duly passed and adopted by a tribal government should
supersede not only State law, but Federal law as well as it may
apply to the Reservation lands.
The Bureau of Indian Affairs has a land consolidation
program funded by the Congress as implemented to our knowledge,
with the tribes in the Minnesota region. As we understand this
program, the BIA purchases on behalf of the tribe, shares,
preferably 2 percent or less, from willing sellers. These
shares are held in trust by the United States on behalf of the
tribe until the rental income from the share refunds the
purchase price of the share acquired.
Senator Campbell. Benjamin, I have to slip out for about 2
minutes, but just go ahead and keep talking and staff will take
your testimony.
Mr. Speakthunder. Thank you, Mr. Vice Chairman.
This means that for each share acquired, an Individual
Indian Money, IIM account must be maintained to account for the
income and repayment of the share. To me and others, this is
not really a true consolidation. True consolidation is when the
share is acquired and the former owner's account is closed for
that particular tract. If individuals, either co-owner or
stranger, or the tribe is provided the financial backing to
acquire this share and other shares in a given tract of land,
then the tract is truly consolidated for the purpose of
reducing administrative costs for the Federal Government.
Fort Belknap was allotted by the act of March 3, 1921,
Statute 1355, whereby 1,188 members of the Assiniboine and Gros
Ventre Tribes received allotment of land varying from 400 to
520 acres of land, depending upon classification of the land
allotted, which includes pasture, irrigated land, homestead. As
of this date, the number of individual owners has increased
from 1,188 to in excess of 4,000, and the number of tracts
maintained by the Bureau of Indian Affairs has increased from
1,189 to in excess of 2,970. There are presently 2,273 tracts
in individual ownership and 699 tribal ownership tracts, with a
total of 18,731 individual interested tracts. In addition,
there are 1,931 mineral tracts in individual ownership and 44
tribal ownership mineral tracts, with a total of 24,120
individual ownerships.
At Fort Belknap, we have had a land acquisition program
since the 1930's and have reacquired a little less than one-
half of the allotted lands within our reservation. Currently,
approximately 40 percent of the reservation is in interest
trust ownership; 43 percent is in tribal trust ownership. The
remaining 10 percent in fee patent, to include 19,000 acres of
State school lands.
On behalf of the enrolled members of Fort Belknap Indian
Community Reservation, I urge the Congress of the United States
to partially fulfill the trust responsibility by funding this
innovative and worthwhile project to accomplish the Land
Consolidation Act at Fort Belknap. Upon completion of this
project, we estimate that this will take from 7 to 10 years,
and annual appropriations from $3 million to $5 million
respectively.
We will be able to accomplish our goal in this process and
have a program that could be replicated throughout Indian
country so that other tribes and individuals can benefit. I
would like to submit the Fort Belknap Land Consolidation Plan
for the record. Additionally, I would like to refer to Arvel
Hale's affidavit submitted to the committee. Mr. Hale, former
chief appraiser for the Department of the Interior, has
designed the land data model which provides appraisals,
purchase and sale of fractionated interests. This model can be
applied to the Fort Belknap Land Consolidation Act.
Thank you, sir.
[Prepared statement of Mr. Speakthunder appears in
appendix.]
Senator Campbell. Thank you.
We will finish with President Nunez.
STATEMENT OF AUSTIN NUNEZ, PRESIDENT, INDIAN LAND WORKING GROUP
Mr. Nunez. Good morning, Honorable Chairman and members of
the committee.
I appreciate the opportunity to address this committee on
these very important and complex matters relating to Indian
trust allotments, specifically S. 1340, a bill to amend the
Indian Land Consolidation Act to provide for probate reform
with respect to trust or restricted lands.
Currently, I serve as chair of the Indian Land Working
Group and also as the chair of the San Xavier District of the
Tohono O'Odham Nation in Arizona. As currently written, S.
1340, the Indian Probate Reform Act and its predecessor, the
Indian Land Consolidation Amendments of 2000, contains serious
flaws that complicate tribal and individual land management,
make administration of trust allotments more difficult, and
threaten the trust status of allotted lands.
In order for true probate reform and effective management
of trust allotments to occur, the following areas must be
addressed with S. 1340. First, current land title information
is necessary for system reform. Title documents must be
corrected to reflect real ownership. It is a travesty that
approximately 13,000 fractionated interests have not been
returned to legal Indian heirs, which is a clear violation of
the Supreme Court decision in Babbitt v. Youpee. In addition,
there is a current probate backlog of nearly 8,000 cases
impacting thousands of Indian heirs and landowners. This has
put a huge stall on real estate transactions on Indian trust
allotments. One can only imagine the public outcry which would
occur if State and county entities maintained title documents
in the same manner.
The next is to amend S. 1340 to provide for judicial review
in section 2214. The current Department of the Interior
appraisal system gives the regional appraiser final approval
for the specific values generated by the appraisal systems. The
restriction of judicial review to section 207 only suggests
that adversely affected property owners have no legal recourse
against appraisals they do not agree with.
The next is to correct the current land acquisition
program. Individual Indian landowners must be included in all
acquisition pilot projects to assure consolidation of
fractionated land title. Otherwise, the tribe, often a stranger
to title, becomes co-owner in an allotment. This further
complicates title and creates additional records. Currently,
the Secretary is making indiscriminate purchases of
fractionated interests within the designated pilot project
reservations. Purchases are not tied to individual or tribal
use plans. Tribal laws, ordinances, and land consolidation
plans are not a required consideration for these purchases. We
recommend that the committee incorporate the Management,
Accounting and Distribution System into all current and future
acquisition pilot projects. This system is being used by tribes
within the Great Plains Region for local management and
processing of income derived from fractionated interests.
This system can also be used for other real estate- related
transactions--gift deeds, sales and purchases. The system
works. The DOI's Trust Asset and Accounting Management Systems
does not.
I would also like to submit for the hearing record the ILWG
position in regards to the reorganization of the Department of
the Interior, specifically our support of the NCAI resolution,
JUN 00043 demanding the return of press records to local
agencies. Full tribal access to records is necessary for self-
government and establishment of a negotiated rulemaking
committee to develop trust reform regulations, with full
participation of Indian tribes and individuals they are
intended to benefit.
In closing, I would like to submit the following documents
for the record. First is ``Amendments to S. 1340,'' a summary
and analysis of S. 1340, prepared by Sally Willet, former
Administrative Law Judge, OHA-DOI, April 2002; ``The Indian
Land Working Group's Points and Concerns'' regarding the
November 7, 2000 ILCA Amendments, and S. 1340 and associated
trust ``Reform'' Reform Measures, May, 2002; ``Fractionated
Interests in Land That is Held in Trust for Native Americans,''
by Arvel Hale, former Chief Appraiser, DOI-BIA, May, 2002; and
the last is, Oklahoma Supreme Court, ``Sovereignty Symposium,
an Overview of Indian Probate Past and Present,'' Judge Sally
Willet, Cherokee Tribe, March, 2002.
We will use the testimony we have given today, as well as
the aforementioned documents, as a basis for further discussion
with members of this committee and staff as we seek the much-
needed reform related to Indian ownership, use and management
of Indian trust allotments.
Our lands and our future generations on these lands are our
lifeblood. We will no longer stand for being land-rich and dirt
poor, detached from our lands as your laws have tried to make
us. As members of the Indian Land Working Group, we seek to
reverse this trend. We are taking a stand on our Indian land.
We seek responsible use management and control of our land
resources. We hope that you will work with us.
Thank you.
[Prepared statement of Mr. Nunez with attachments appears
in appendix.]
Senator Campbell. Thank you.
Well, we do have the support of the Administration, and
most, with some minor glitches, tribal support, too. Staff
tells me we have a pretty good chance of getting this passed
this year, and hopefully we will.
Let me ask you a few questions, maybe starting with
Maurice. As the chairman of a tribe within a Public Law 280
State, does the State try to assert jurisdiction over Indians
on your reservation if they are not members of your tribe?
Mr. Lyons. Only if we invite them in. They can come in if
it is a felony of any kind, but if there is a member of another
tribe on our reservation and they are doing something, we can
call them and they come in.
Senator Campbell. Within the boundaries of the reservation?
Mr. Lyons. Yes.
Senator Campbell. Yes; now, if I understood your testimony,
it endorses a proposal the committee considered last Congress
that would allow individuals to maintain the trust status of
their land by having underlying legal title held by the tribe,
but which would allow successive generations of lineal
descendants to devise a unique interest. You spoke about the
two ladies. Do you feel that approach balances tribal interests
and individual interests?
Mr. Lyons. Yes; I really do, because in the end, the tribe
owns it. Sooner or later, the lineal descent will be gone.
Senator Campbell. I do not know if all tribes support that
or not. Would you consider allowing an opt-in provision in this
bill, where the tribes that believe in that could opt in; other
ones that did not would not have to?
Mr. Lyons. Yes.
Senator Campbell. President Speakthunder, you suggested
repealing of the definition of ``Indian'' but current law
allows Indian tribes to decide who can inherit trust land
because they can decide whether a person is a member of that
tribe or eligible to become a member of the Indian tribe. Since
literally every tribe can determine their own enrollment and
their own members, why would we need to repeal the definition
of ``Indian''?
Mr. Speakthunder. Today, sir, we have--approximately 1\1/2\
years ago we had a secretarial election and reduced our
enrollment--the community voted and reduced our enrollment from
one-quarter to one-eighth. And it brought on the interest of,
as far as challenges go, of a lot of fractionated land. From
that standpoint, we----
Senator Campbell. Did that resolution pass your Council?
Mr. Speakthunder. Yes; we did, sir. And from standpoint, we
came up with a lot of issues as far as fractionated land goes,
and so this is why we brought up this issue here today with the
provisions of the testimony.
Senator Campbell. Maybe let me ask all of you, on your
reservations--maybe start with Tex--are there lands owned
within your reservation that are State lands or school lands?
Mr. Hall. Go ahead.
Mr. Speakthunder. Yes; as far as we are concerned, yes, we
have multiple acres, sir, is State land and school sections.
Senator Campbell. There is some State land within the
boundaries of the reservation?
Mr. Speakthunder. Yes; and we do pay taxes on that.
Senator Campbell. Would the State be interested in
transferring that land for an exchange of other Federal lands?
Has anybody ever approached them about that?
Mr. Speakthunder. No; we have not, sir.
Senator Campbell. Mr. Nunez, how about your reservation?
Mr. Nunez. No, sir; the San Xavier Indian Reservation does
not.
Senator Campbell. There is none.
Mr. Lyons. No; we do not have any that are owned by the
State, but we have some that are out of trust, and we have to
pay taxes on individual tribal lands.
Senator Campbell. They are out of trust, but tribal members
pay taxes on them.
Mr. Lyons. It belonged to--somebody bought it a long time
ago and it was out of trust. I bought it back, specifically me,
and I have to pay taxes on that. And I have been trying to get
it back into trust.
Senator Campbell. Yes; that is the process, isn't it?
Mr. Lyons. Yes.
Senator Campbell. Tex?
Mr. Hall. Mr. Chairman, we do not have per se within the
exterior boundaries, but just adjacent to the reservation we
have 15,000--well, it is actually 10,000 acres of tribal land
we acquired in fee. This is former treaty land, but there is
5,000 acres that are part of this ranch that we purchased--
4,000 BLM and 1,000 State school lands. We did ask about
purchasing that, and the State is reluctant to do it, and the
BLM says----
Senator Campbell. Purchase or trade?
Mr. Hall. Purchase or trade, they are reluctant to do it.
And the BLM at first said no, but they are becoming interested
in a trade.
Senator Campbell. What was the resistance from the State?
Why wouldn't they want to trade it?
Mr. Hall. Evidently, they had some moratorium that they
were dealing with. But we presented it to the State Land
Committee and talked about for jurisdictional purposes, since
we own this ranch that is adjacent to the reservation now, that
it would be in the best interests if the tribe could purchase
or trade. They have not gotten back to us, but it has been a
year now. So there has been some reluctance, but I think they
are starting to see that it would be in the best interests of
everyone concerned if the tribe could acquire those lands.
Senator Campbell. Well, put your NCAI hat on for 1 minute,
instead of the tribal hat.
Mr. Hall. All right.
Senator Campbell. Some of the testimony presented to the
committee requests that we hold land in trust for individuals
even if they are not treated as an Indian for any other purpose
under Federal law. Does NCAI share the concern that that may be
watering down the Federal Government's trust responsibility?
Mr. Hall. Yes; I believe so, Mr. Chairman. We have
deliberated that for quite some time, and many tribes are now
calling us about it. So we have not passed a resolution because
of just that. And of course, we have to get the consent. I am
thinking we should bring this up in our mid-year conference
next month, Mr. Chairman, and really talk about this and have
maybe a presentation to the tribes. Then we could look at some
resolution to that effect.
Senator Campbell. Do you feel that it would open up an
opportunity for States to try to regulate activities of such
individuals within the reservation, or they might challenge
tribal jurisdiction even over trust lands if that happened?
Mr. Hall. Definitely. When you even think about lands that
you are talking about, or even right-of-ways, we all know that
the Supreme Court in A-1 Straight did that. They gave fee land
or right-of-ways that were on a State highway and tribes did
not have jurisdiction in that Supreme Court case decision, so
we feel that would lead to what you are saying, and further
erode tribal sovereignty.
Senator Campbell. Your testimony recognized that the 2000
amendments to ILCA tried to give Indian tribes the tools to
become partners in consolidating the fractionated interests. I
think it is really a step in the right direction. Can you give
me maybe one or two specific examples of how we can do this
without taking money away from other Indian programs in a very
tight budget year?
Mr. Hall. We have our budget meetings, Mr. Chairman. Neal
McCaleb is heading down for the Bureau of Indian Affairs. We
are working with the Department of the Interior, of course,
with the trust reform. This is a major part of the initiative
for trust reform. So we know that in fiscal year 2002 I believe
there was $300 million that was allocated for trust reform. I
believe it was one-half for the Bureau and one-half for the
Office of Special Trustee.
We feel that, and I have been a part of the BIA budget
process now for 4 years, Mr. Chairman, and we have never
really--well, I will just say it. We never dealt with
fractionation. So we need to put this and include it in our
budget somewhat, even if it means taking a part of that $300-
plus million and allocating a portion of that money for
fractionation. Because when I asked the government officials
specifically how they came up with $300 million, there was
really no--I think it was just a projection and there was
really no clear-cut formula. So I think there is possible room
in that allocation to do just that.
Senator Campbell. I hope so. I hope so. It is pretty clear
to me and ought to be clear to anybody, when you have land that
is fractionated that much, the loss of opportunities for jobs
or economic development or farming or anything, it just goes
down the drain. And although it might cost money, some
investment to consolidate, I would think the long-range result
would be there would be a heck of a lot more economic viability
on the land, on the reservations, which would offset anything
you spent up front to do it.
Mr. Hall. Absolutely, Mr. Chairman. There will be a point
at some time when we get around this curve, but right now we
are behind the curve until we pass some amendments, such as we
are talking about today on S. 1340, and then put the adequate
funding. So the amendments and the funding are critical for
getting around that curve, and so we are in support of doing
that, Mr. Chairman.
Senator Campbell. Thank you, Tex.
President Nunez, can any lineal descendant inherit trust
land on your reservation?
Mr. Nunez. Yes, sir; they can.
Senator Campbell. And you propose in your testimony that
the Federal Government should hold trust land for anyone who
can demonstrate documentable Indian blood, even if they don't
meet the definition of ``Indian'' for any other Federal
program. Is that correct?
Mr. Nunez. Yes, sir; that is correct.
Senator Campbell. Give me an example of how you would
document?
Mr. Nunez. Well, first and foremost, it would depend on the
specific tribes' normal policy. But in terms of others who may
have been alienated from their specific tribes and that may
have been not recognized, but they still would have some sort
of documentation stating that they did belong to a certain
indigenous group. That should be honored as well because it is
not so much by blood quantum as it is also lineage, as you
mentioned previously. There are a lot of Indian people that
know that they are Indian, but some really cannot prove it as
well. So it is a difficult task.
Senator Campbell. Yes; up at the Northern Cheyenne Tribe we
had a baby that was not enrolled and the parents were killed
years ago. The baby was adopted and later on, years later, 35
or 40 years later, she came back to the reservation and wanted
to reestablish ties and be enrolled. And there was no record.
They could not find anything. But interestingly enough, some of
the older people remembered that the baby had a birthmark, and
this lady had the exact same birth mark and they enrolled her
based on what she had heard from her adopted parents and that
birthmark. So I guess there is different kinds of proof about
how you come home. In the old times, there were so many people
left under bad circumstances, it is hard to track ancestry
sometimes.
The committee spends a lot of time hearing from people, as
you might guess, and people who feel Indian tribes should not
exercise jurisdiction over them because they cannot participate
in tribal elections. All of you have heard that.
Austin, your proposal allows people who are not eligible
for membership in Indian tribes to own trust lands, but would
you suppose those people will at some time challenge tribal
jurisdiction over them or want to run for tribal government or
something of that nature?
Mr. Nunez. I suppose that they would, sir, but I would
think that they would probably honor the specific respective
tribe that they have their interest in and would abide by their
rules and regulations.
Senator Campbell. Well, I hope so too, but apparently at
least on one documented case somebody that was almost in that
exact same position on the Yakima Reservation had inherited
tribal land and subdivided it. He went as far as the Supreme
Court--went all the way up the court system to try to break
that bond.
Well, I have no further questions, but I certainly do
appreciate your appearing today. The normal process is that we
leave the record open for 2 weeks. So if you have any
additional comments or comments of your tribes, if you could
get them in within 2 weeks, I would appreciate it.
Thank you very much for appearing here today. This
committee is adjourned.
[Whereupon, at 11:04 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Hon. Craig Thomas, U.S. Senator from Wyoming
Thank you, Mr. Chairman. It is good to be here today to discuss
Indian Land Consolidation and probate reform. The Eastern Shoshone
General Council from my home state recently created a special committee
to discuss this very important issue. I would like to submit the
statements of Ben O'Neal and Will O'Neal, two members of the Eastern
Shoshone Indian Land Consolidation Committee, for the record and thank
this committee for listening to their concerns.
The committee has spent this session of Congress addressing many
problems facing Indian country. We know that developing infrastructure
is necessary for businesses to prosper, and for economic opportunities
to flourish. We know that improving telecommunications will give young
children more access to information. Without computer training, we will
see another generation of Native Americans struggling to compete in our
fast-paced technological age. We know that building roads and improving
transportation opens markets and allows tribes to develop their
resources. On the Wind River Reservation, these needs are often stifled
by fractionated lands. The process for obtaining rights of way is
complicated and time consuming. Further, the Bureau of Indian Affair's
Wind River Agency continues to face a tremendous backlog in managing
these parcels of land.
Looking at the big picture, the need for consolidated land is
clear. However, the realities of our actions have rippling effects for
thousands of Indian families. From a Federal perspective, the
government has a unique trust obligation to two very unique
constituencies--those of the individual Indian land owners and those of
the tribes. It is important to hear the perspectives of both of these
groups, particularly with probate laws. I will be interested to hear
the concerns of our witnesses on probate reform efforts and look
forward to working with my colleagues to address this issue.
Thank you Mr. Chairman.
______
Prepared Statement of Neal McCaleb, Assistant Secretary, Indian
Affairs, Department of the Interior
Good Morning, Mr. Chairman and members of the committee. Thank you
for the opportunity to appear before you today to present the views of
the Administration on S. 1340, a bill to amend the Indian Land
Consolidation Act of 2000 to provide for probate reform with respect to
trust or restricted lands. We support the bill.
In particular, I want to commend your staff for their efforts in
developing this legislation. S. 1340 will provide the American Indian
people who own trust and restricted assets with one uniform probate
intestate code that can be applied throughout Indian country. The
legislation is clearly the product of a lot of hard work by
Departmental employees and members of your staff in order to achieve
the common goal of reforming the Department's Indian probate program.
During tribal consultations held in July and August 2000 on the
proposed probate regulations, many tribes recommended and supported a
uniform probate intestate code. At the present time, Federal statutes
provide that the law of the State where the land is located be applied
in the distribution of the estate. See 25 U.S.C. Section 348. As a
result of inter-tribal marriage, it is not uncommon that an Indian
descendent owns lands on reservations in several States. The effect of
applying up to 33 different State laws to the restricted and trust
lands of a decedent results in disparate and unfair treatment of the
distribution of the entire estate to the same heirs.
For example, in Nebraska a surviving spouse is entitled to receive
the first $50,000 of the estate. Thereafter, the law provides that the
surviving spouse receive one-half and children get one-half of the
remainder of the estate. Minnesota law provides that a surviving
spouse's share is the first $150,000 plus one-half of the balance of
the intestate estate if all of the heirs are also heirs of the
surviving spouse. In contrast, Wisconsin law provides that a surviving
spouse receive 100 percent of the estate unless one or more children
are not the children of the surviving spouse, then the surviving spouse
receives only one-half. New Mexico law differs from the previous
examples in that a surviving spouse gets all the community property,
then one-fourth of the estate if there are descendants of the decedent.
Another area of concern is the inheritance rights of adopted
children and the inconsistencies in state laws. Minnesota law provides
that an adopted child may inherit from his/her natural parents, while
Montana law provides that an adopted child may only inherit from the
adopted parents.
The enactment of a uniform intestate code for trust and restricted
estates is of great benefit to both the heirs and the Department. The
benefit to the heirs is that the same law will be applied to all the
trust and restricted estate of the decedent no matter where the real
property is located. A uniform intestate probate code will provide for
the division of shares of the entire estate and will be the same
throughout the United States. The heirs may disclaim their interests or
otherwise agree to a settlement to distribute the estate if the
children want to give a larger share to their surviving parent. The
Federal Government's cost to update and maintain land records will be
reduced. The Department will be able to decide cases and issue orders
in a more timely manner. A new body of Federal law will be created and
decisions will be more consistent across the Nation, resulting in fewer
appeals. The necessity of thoroughly researching state laws will no
longer exist, it will take less time to issue an order determining
heirs. Finally, a uniform intestate code may encourage Indian tribes to
adopt their own inheritance codes. The uniform intestate code will
serve as a model for tribes to develop their own tribal probate codes.
The proposed uniform intestate succession facilitates the
consolidation of interests to remain in trust or restricted status and
complements the provisions of Indian Land Consolidation Act to minimize
further fractionation of Individual Indian interests in trust and
restricted lands. For estate planning purposes, one uniform intestate
code will provide a foundation to encourage the execution of wills for
disposition of trust or restricted assets.
For example, the proposed section for pretermitted spouses and
children will necessitate specific estate planning if the decedent
marries after the execution of a will but intends to leave nothing to
the new spouse. S. 1340 at section 232(d). Similarly, if the testator
divorces after executing a will and has left property to the former
spouse, the devise is revoked by law unless the will provides
otherwise. S. 1340 at section 232(e)(2).
State probate laws are often amended and likewise affect long-term
estate planning. A change in State law may also necessitate the
execution of a new will. Thus, frequent amendments of state laws
frustrate the purposes of promoting estate planning among Indian
landowners. There will obviously need to be considerable community
education on the new sections of the proposed uniform intestate law
that will require more comprehensive estate planning.
We recommend that S. 1340 include a provision that excepts the
application of the uniform intestate code to the Five Civilized Tribes
of Oklahoma until such time as the Five Nations bill is enacted. The
Five Civilized Tribes are subject to the state district courts of
Oklahoma and Oklahoma probate law is applied to determine intestate
succession. Thus, the removal of the exception should be reflected in
S. 2880, the Five Nations legislation.
We would like to suggest amendments to portions of existing Federal
statutes relevant to inheritance prior to the passage of S. 1340. The
amendments are:
25 U.S.C. section 348--After the second ``Provided,'' strike the
words, ``That the law of descent in force in the State or Territory
where such lands are situate shall apply thereto after patents
therefore have been executed and delivered, except by the'' and insert
``the Indian Land Consolidation Act, as amended, shall apply where such
trust or restricted assets are located''. See S. 1340 at section
234(c).
25 U.S.C. Section 372--Insert before the word ``hearing'' in the
words ``upon notice and hearing'', the words ``opportunity for a''.
Insert the words ``probate the decedent's trust estate, and pay valid
creditor's claims out of funds in such estate or funds that may accrue
up to the date of death of the decedent'' after the word ``decedent,''.
Insert ``Provided, That in the payment of claims, 31 U.S.C. section
3713(a)(1)(b) shall not apply.'' after''section 373 of this title.'' 25
U.S.C. section 373--Insert ``Provided also, that the Secretary shall
pay valid creditor's claims out of funds in such estate or funds that
may accrue up to the date of death of the decedent except that 31
U.S.C. section 3713(a)(1)(b) shall not apply:'' after the words ``or
use it for their benefit:''
With that Mr. Chairman, I would just like to say thank you, again,
for the hard work of your staff in drafting this much needed piece of
legislation. I would be happy to answer any questions you may have for
me.
______
Prepared Statement of Tex G. Hall, President, National Congress of
American Indians
Good morning, Mr. Chairman and Vice Chairman and members of the
committee. My name is Tex Hall. I am the president of the National
Congress of American Indians and the chairman of the Mandan, Arikara &
Hidatsa Nation. Thank you for inviting NCAI to testify before you on S.
1340, a bill to amend the Indian Land Consolidation Act. The National
Congress of American Indians [NCAI] was established in 1944 and is the
oldest, largest, and most representative national American Indian and
Alaska Native tribal government organization. We appreciate the
opportunity to participate on behalf of our member Indian nations in
the legislative process of the U.S. Congress and to provide this
committee with our views.
The problem of fractionation and fragmentation of Indian land is
rooted in a history that is familiar to members of this committee. In
the late 191 and early 20th century, the Federal Government began a
push to acquire tribal land and assimilate Indian people through
reservation ``allotment'' programs. The General Allotment Act of 1887
was the most broadly applicable of the allotment statutes, and between
the years of 1887 and 1934 the tribes lost more than 90 million acres,
nearly two-thirds of all reservation lands. In 1934, Congress passed
the Indian Reorganization Act of 1934 [IRA], in order to stop allotment
and the abrupt decline in the economic, cultural and social well-being
of Indian tribes caused by allotment. As noted by one of the IRA's
principal authors, Congressman Howard of Nebraska, ``the land was
theirs under titles guaranteed by treaties and law; and when the
government of the United States set up a land policy which, in effect,
became a forum of legalized misappropriation of the Indian estate, the
government became morally responsible for the damage that has resulted
to the Indians from its faithless guardianship. ``(78 Cong. Rec. 11727-
11728, 1934.)
The damage to the tribes and their members from allotment has been
enormous, and the purpose of the Indian Land Consolidation Act is to
specifically address some of these problems. First, because of the
inheritance provisions in the allotment acts, the ownership of many of
the trust allotments that have remained in trust status has become
fractionated into hundreds or thousands of undivided interests.
According to the BIA, the 56 million acres of trust and restricted land
under its supervision are divided into 170.000 tracts of land with
350,000 Indian owners and most important, 2 million different owner
interests. Fractionation has created an accounting nightmare for the
Federal Government and enormous difficulties in putting the land to
beneficial use. Second, the inheritance provisions also have created a
situation where allotted land interests pass to heirs who are not
members of Indian tribes, and the interest then is no longer in trust
status. For many tribes far more Indian land passes out of trust than
into trust each year through this process. This loss of trust land is a
continuation of the disgraceful legacy of the allotment era, and
compounds the jurisdictional and management difficulties in dealing
with Indian land. Even more disgraceful is the fact that in many cases
the heir is not aware that they are required to begin paying county
taxes when the land goes out of trust, and after a period of 1 year,
the county acquires the interest in tax foreclosure. The tribe provided
all the services for 100 years and then after 1 year the county
acquires the land interest as a complete windfall and the minerals or
timber that reside on that land.
Finally, allotment left many tribes with scattered parcels and
often rendered the tribal land base essentially unusable from a
practical standpoint. It was not just the loss of land, but also the
manner in which the remaining land was separated and divided which has
created such ongoing hardship for the tribes:
The opening of the reservation in this fashion [under the allotment
policy] had many ramifications other than the sheer loss of land. Much
of the remaining Indian land estate was crippled. As any large rancher,
miner, or timber executive can attest, effective resource management
can best be achieved on a large, contiguous block of land in single
ownership. The allotment program deprived most tribes of that
opportunity. The tribal land ownership pattern became checkerboarded,
with individual Indian, non-Indian, and corporate ownership
interspersed.
C. Wilkinson, American Indians, Time and the Law, at 20.
In sum Mr. Chairman, I do not think that I can overemphasize the
importance of land consolidation in Indian country. Of the 90 million
acres of tribal land lost through the allotment process, only about 8
percent have been reacquired in trust status since the IRA was passed
sixty-five years ago. Still today, some tribes have no land base, many
tribes have insufficient lands to support housing and self-government,
and most tribal lands will not support economic development. Further
improvements to the Indian Land Consolidation Act are vital to the
future of Indian communities.
The Indian Land Consolidation Act
Congress passed the Indian Land Consolidation Act [ILCA] in 1984 in
order to address fractionation and provide for tribal land
consolidation. ILCA authorized new powers for tribal land
consolidation, the buying, selling and trading of fractional interests,
and perhaps most importantly for our purposes Section 207 of the ILCA
prevented the devise or descent of certain small interests in trust and
restricted lands. Specifically, any interest that is 2 percent or less
of the total acreage of a tract would not pass to a decedent's heirs or
devisees if the interest realized less than $ 100 in income during the
preceding year. Such interests escheated to the reservation's tribal
government. Congress amended this provision the next year. The 1984
amendment altered the income generation test to take into account a 5-
year earning-history of each interest. The amendment also allowed an
owner to prevent an interest's escheat by devising the interest to
another owner in the same parcel of land. The original version of
section 207 of the Act was found to be an unconstitutional taking of
property in 1987 (Irving v. Hodel). In 1997, the Supreme Court also
ruled against the constitutionality of the 1984 version of section 207
(Youpee v. Babbitt (1997)).
The 2000 ILCA AMENDMENTS
The Supreme Court decisions were clearly correct in refusing to
allow Congress to disenfranchise Indian landowners without
compensation, but the decisions also eliminated the major mechanism
contemplated in the act for limiting the fractionation of Indian land.
The purposes of the 2000 amendments were to create some new mechanisms
for addressing fractionation.
Tribal Probate Codes and Descent and Distribution Rules
In particular, the 2000 amendments addressed tribal probate codes
and both testate and intestate succession of Indian land. Section 206
was rewritten to remove procedural impediments that discouraged Indian
tribes from enacting their own probate codes. In the absence of such
tribal codes, the new version of section 207 provides uniform rules for
the descent and distribution of interests in Indian lands. Before these
new rules apply to any estates, the Secretary must provide the notice
required by section 207(g) and a 1-year waiting period must then pass.
These new rules will only apply to the estate of those Indians owning
trust property who die after that 1 year after the Secretary's
certification, and to date they have not yet taken effect.
Section 207 is intended to encourage the consolidation of interests
and prevent the loss of trust or restricted land when it is inherited
by non-Indians. The new rules are applicable to both testate (with a
will) and intestate (no will) Indian estates. To prevent Indian lands
from passing out of trust, non-Indian heirs will generally only receive
a life estate in Indian lands. Because the non-Indian heir owns less
than the full interest, a ``remainder interest'' is created, and this
remainder interest must go to an Indian. If there are no such heirs,
the remainder may be purchased by any Indian co-owner of the parcel.
The proceeds of such a sale are made a part of the decedent's estate.
If no offer is made to purchase the parcel, the remainder interest
passes to the tribe.
In some instances where the Indian owners of trust land may not
have an Indian heir and the general rule would deprive them of the
ability to devise more than a life estate to any of their heirs, the
2000 amendments provide an exception. They may devise an interest to
either their Heirs of the First or Second Degree or Collateral Heirs of
the First or Second Degree. Because these people are non-Indians, the
interest would pass in fee, not in trust. There is also an option for
these interests to be purchased by the tribe.
Finally, section 207 is intended to address fractionation by
limiting the way that Indian land passes as a ``joint tenancy in
common.'' If a person devises interests in the same parcel to more than
one person, unless there is language in the will to the contrary, it is
presumed to be a ``joint tenancy with right of survivorship,'' meaning
that each of a decedent's heirs share a common it title, so the la
surviving member of the group obtains the full interest as it was owned
by the decedent. An interest of less than 5 percent passing by
intestate succession will also be held by the heirs with the 'right of
survivorship.'' The Secretary of the Interior must certify that it has
the capacity to track and manage interests that are held with the right
of survivorship before this provision take effect.
NCAI supported the 2000 ILCA amendments because we believed that
overall they had a lot of very positive provisions in them. Without
amendments to ILCA, the 2 million existing ownership interests in
allotted Indian lands will continue to not grow exponentially and
Indian land will continue to go out of trust status. At the time, we
also recognized that there are a lot of difficult tradeoffs and that no
bill could come to a perfect resolution. We relied on the assurances of
the committee that the 2000 amendments would not be the last word on
this topic, but that we could expect to be able to come back with
technical amendments to continue to correct and improve the statute as
we gain more experience with it.
For that reason we were also comforted by the provisions that
ensured that the descent and distribution provisions would not take
effect until 1 year after the secretary provided notice to all Indian
landowners. We believe that S. 1340 is taking the right approach in
changing some parts of the 2000 Amendments before they do take effect.
In particular, concerns have been raised by Indian landowners that some
provisions could limit their ability to devise their land to their
heirs, whether they are Indian or not, and that the ability to devise
land to your heirs is an inherent part of a property right that, under
the U.S. Constitution, cannot be taken without compensation.
History has dealt this committee an almost impossible hand--either
allow Indian land to be devised out of trust and continue the
unconscionable loss of Indian land, or restrict the rights of
inheritance so that it causes undue harm to the owners. This is an
issue that has been ignored, and we greatly respect the committee's
attempt to wrestle with this issue to find an appropriate
accommodation. S. 1340 demonstrates that you are willing to continue
working on this thorny issue. There isn't going to be an easy obvious
answer, but only tough choices that will respect tribal government and
won't cause undue harm to Indian landowners.
We recognize the need for the type of amendments that are proposed
in S. 1340 regarding devise to non-Indian heirs under Federal law and
in a general sense we support them. We would like to hear from the
other tribes and continue to talk with you about the specifics to see
if there is a way to keep the land in trust status and under tribal
jurisdiction. We also think it is important to simplify the provisions
so that they will be more readily understandable for the Indian
landowners, the tribes, and the BIA realty offices that must provide
advice on these matters. Certainly these are complex property law
issues, but our concern is that we must make the law clear and
understandable to those who will be affected. Some clarifications on
the effective date of both the new provisions and the 2000 Amendments
also seems to be necessary.
We have very serious questions about the provisions of S. 1340 that
place limitations on Federal approval of tribal probate codes. One of
the powers of tribal government is the power to control the devise and
descent of property. This inherent tribal power is not constrained by
the constitutional provisions that limit Federal and State authority.
We would like to discuss with the committee whether it would consider
amendments to the ILCA that would not undermine tribal jurisdiction
over land, but instead would be carefully crafted to utilize inherent
tribal authority and tribal probate law as a mechanism to address the
issues of fractionation and land loss. We should be reminded that the
fundamental trust relationship is with the tribe as a whole and the
allottees' interests exist solely because of their status as members of
Indian tribes. In this instance, where the Federal trustee has already
violated its trust responsibilities to the tribe by allotting the land
and is in a position where Federal law must allow Indian land to move
out of tribal control, the use of tribal probate law to restrict the
inheritance of fractionated interests should be considered as a tool
for tribal governments to consider in addressing the problems of
fractionation and the hemorrhaging loss of Indian lands.
Pilot Program for the Acquisition of Fractional Interests
In 1994 the BIA started a consultation process to solicit input on
how to address land fractionation. More than a majority of the
individuals who participated indicated that they would be in favor of a
program that allowed them to sell their fractionated interests for
consolidation in the tribe. Interior's fiscal year 2000 budget included
$5 million for this pilot project, and under section 213, the Secretary
is required to continue this project for 3 years and then report to
Congress on the feasibility of expanding the program to provide
individuals and greater tribal involvement.
If I have one point to make, it would be that this pilot program
must be expanded and adequately funded. Failing to deal with land
fractionation is like failing to fix a leaking roof. You may think you
are saving money, but in the long run it will cost you plenty in both
money and grief. We believe that the Federal Government must make the
investment in land consolidation now in order to prevent land
fractionation, and all of its attendant difficulties for both the
Federal Government and tribal governments, from growing into an
exponentially greater problem. For the fiscal year 2003 budget, I
believe that we should target $33 million. I would note that $33
million is the amount that the Administration calculates that it spends
on an annual basis to administer those highly fractioned interests that
are of less value than the costs of administration. This investment of
equal amount would quickly repay itself in later years.
TRIBAL LAND CONSOLIDATION PROGRAMS
I would like to emphasize that the primary actor in Indian land
consolidation is not the Federal Government, but the Indian tribes who
have developed land consolidation programs on their own initiative.
Just as in every other area of Indian policy, Federal efforts on land
consolidation will only be as successful when they work in partnership
with the tribal governments in a government-to-government relationship.
Tribes have acquired hundreds of thousands of fractionated ownership
interests in order to further their own land consolidation and land
recovery goals, and every one of these transactions works to the
benefit of the Federal Government.
The only way that fractionation is going to be addressed on the
necessary scale is if tribes have ownership in the process and the
Federal Government assists tribes with that effort. Cobell gives
Congress the reason to get serious about this effort. We are asking for
the development of a partnership between the Federal Government and
tribal governments that will provide tribes with the tools and
incentives to acquire fractionated interests and consolidate their
lands.
We also believe that the committee should consider amending S. 1340
to include a mechanism for tribes to partition non-Indian interests in
Indian land that are held in common with the Indian owners. Tribes are
acquiring fractionated interests because they want to use the
underlying land for a purpose, to build a school, or housing or for
agriculture or any of a number of important purposes. But a tribe does
not have a ready mechanism to acquire or partition the non-Indian
interest that is not held in trust. The tribe may have 98 percent of
the interests, but no mechanism to acquire the final 12 percent if they
are in fee status.
Tribal programs would also benefit from lower interest rates on the
loans, and other means of lowering the tribes' out-of-pocket expenses,
freeing up resources for additional acquisitions. We are researching
some ideas that would expand the efforts of tribal land consolidation
programs, including:
No.1. Create categorical exemption for NEPA either legislatively or
through Interior regulation, in order to reduce the time and expense
related to land transfers;
No. 2. Provide tax-exempt bond financing to tribes to acquire lands
for consolidation;
No. 3.Loan program that provides Federal funding to buy down the
cost of a loan, thus buys down points on the interest rate; and
No. 4. Develop a tax credit for turning in fractionated interests
or other tax credit structure that would have incentives for owners of
fractionated interests.
We believe that the best thing that can happen in the near future
is two things, first, move a variation of S. 1340 on the issues that
are ready for inclusion in the bill and are within the jurisdiction of
this committee and second, develop a collaboration between Interior,
Congress and the tribes in creating new incentives for land
consolidation that may take longer to develop or require the
involvement of a broader range of Congressional committees. This second
step could perhaps take the form of an amendment to section 213 that
would direct the Department of the Interior to begin its study of
coordination with tribal governments immediately.
We are also aware that the Department of the Interior is thinking
of expanding its efforts in land consolidation. There are different
issues and interests that tend to shape the land consolidation
strategies of tribes versus the Federal Government. We need to
understand these issues and interests in order to craft the best
possible short-term and long-term strategies that will promote tribal
land consolidation efforts and tribal trust assets management while
reducing Interior's management an administrative oversight and
transferring the cost savings to further tribal land consolidation
efforts or other trust services. We believe that allotment-by-allotment
land acquisition and consolidation strategies that have the necessary
funding and human resources will be necessary. We want to set up some
talks with Interior and the committee to explore these issues further.
UNEXERCISED RIGHTS OF REDEMPTION
We would also like to strongly endorse the provisions in S. 1340
that would allow Indian tribes to exercise a right of redemption for
interests in Indian land that have passed out of trust that would be
subject to a tax sale or tax foreclosure proceeding. As I noted above,
the inheritance provisions allow allotted land to pass to non-Indians,
meaning that for many tribes far more Indian land passes out of trust
than into trust each year. In many cases the heir is not aware that
they are required to begin paying county taxes when the land goes out
of trust, and after a period of 1 year, the county acquires the
interest in tax foreclosure. The tribe provided all the services for
100 years and then after 1 year the county acquires the land interest
as a complete windfall and the minerals or timber that reside on that
land. This is a severe injustice and we are glad to see that S. 1340
has a provision to address it. We would like some clarification on the
notification procedures to the tribe, and would also note that this
provision is dependent on providing adequate resources for tribes to be
able to exercise the right of redemption.
INDIAN PROBATE REFORM
We would also like to support the creation of a uniform Federal
probate code for interests in Indian land, with the understanding that
it would serve as a default only when the tribal government had not
developed its own probate code. As the findings in S. 1340 outline, one
of the major problems with the General Allotment Act is that it did not
allow Indian allotment owners to provide for the disposition of their
land, and it mandated that allotments would descend according to State
law of intestate succession.
Once again we would ask the committee to reach out to the tribes
and consider their views on the specific provisions of the uniform
Federal probate code proposed in S. 1340. NCAI has not adopted a
resolution on these provisions and they raise a number of new issues,
so we are interested in hearing more from the tribes. One thought that
we have is that there is a general sense among Indian tribes that an
allotment would pass to the lineal descendants of the original
allottee, rather than to any unrelated heirs of a surviving spouse. We
would like to discuss this and other specifics in more detail with
tribal leaders and with the committee.
CONCLUSION
Thank you for the opportunity of appearing before you today. We
greatly appreciate the work of the Senate Committee on Indian Affairs,
and would like to thank you especially for your attention to this most
important Issue.
______
Prepared Statement of Arlyn Headdress, Chairman, Assiniboine and Sioux
Tribes, Fort Peck Reservation
I am Arlyn Headdress, chairman of the Assiniboine and Sioux Tribes
of the Fort Peck Reservation. I thank the committee for the opportunity
to submit testimony on S. 1340, the Indian Probate Reform bill. I think
it is important that the record for this important bill reflect the
history of the Fort Peck Reservation and why we are where we are today.
The Fort Peck Reservation was set apart for the exclusive use and
occupancy of the tribes under an Agreement of 1888 between the tribes
and the United States. Unfortunately, the promise to keep these lands
for the permanent use of the tribes was not kept by the United States.
Instead, the United States implemented its Fort Peck allotment policy
in 1908--leading to the massive loss of lands, and a host of land-
related problems that continue to this day.
The allotment policy arose for two different notions. On the one
hand, allotment was supported by the philanthropists of the day, who
thought that breaking up tribal landholdings into separate parcels held
by individual Indians would help to ``civilize the Indian.'' The idea,
in essence, was to destroy the Indian way of life, and make the Indians
adopt the ways of the white man. On the other hand, a substantial
impetus for allotment also came from non-Indians eager to take Indian
lands. Sometimes, the pressure for lands came from local frontiersmen
near the reservations. In other instances, it was a more general
pressure from railroads and easterners hoping to head west.
These two forces combined to bring about the allotment policy
contained in the General Allotment Act of 1887, 24 Stat. 388. This
measure reflected both purposes of allotment. It authorized the
President to break up tribal lands into allotments of 160 acres each
for individual Indians. These allotments were to be held in trust by
the United States for individual Indians for a period of 25 years. At
the same time, the General Allotment Act authorized the United States
to dispose of the lands in excess of those used for allotments to
individual Indians. These lands often referred to as ``surplus''
lands--were authorized to be made available to non-Indian homesteaders.
The policy reflected in the General Allotment Act was generally
implemented on a reservation by reservation basis, through enactment of
specific allotment acts addressing each covered reservation. At Fort
Peck, the allotment policy was implemented through a 1908-act. This act
authorized the breaking up of tribal lands--lands promised to the
tribes forever--into allotments to individual Indians. The acts also
authorized the sale to non-Indians of reservation lands not selected
for allotments.
The allotment policy proved a dismal failure in many respects.
Nevertheless, it did succeed in its avowed goal of transferring Indian
lands to non-Indian homesteaders, not just at Fort Peck, but on
reservations nationwide: The majority of Indian lands passed from
native ownership under that allotment policy. Of the approximately 156
million acres of Indian lands in 1881, less than 105 million remained
in 1890, and 78 million by 1900. Indian land holdings were reduced from
138 million in 1887 to 48 million in 1934...Cohen's Handbook of Federal
Indian Law, p. 138 (1982 ed.). By 1934, however, Congress realized the
disastrous consequences of allotment. As Indian lands were lost, Indian
social and economic conditions worsened considerably. These conditions,
documented on a nationwide basis by the Meriam Report of 1928--a
comprehensive survey of the conditions of Indian life--led to a major
change in Federal Indian policy.
The Indian Reorganization Act (``IRA'') was one of the most
important pieces of Indian legislation in American history. Based in
considerable measure on the findings of the Meriam Report, the IRA
altered the basic thrust of the allotment policy that immediately
preceded it. Where the allotment policy sought to remove lands from the
Indians, and destroy tribal life and institutions, the IRA sought to
rebuild the reservations and the tribes, and to provide new
opportunities for economic growth and self-government on the
reservations.
To reverse the allotment policy and permit the rebuilding of tribal
land holdings, the IRA contains what remains today the principal
statute authorizing the Secretary to acquire lands in trust for a tribe
or individual Indian, section 5 of the Indian Reorganization Act (IRA),
25 U.S.C. 465.
Today, the Fort Peck Reservation consists of over 2,000 square
miles of land in northeastern Montana. The tribes and individual
Indians own about 1 million acres of land. About 550,000 acres on the
reservation are held in trust by the United States for Indian
allottees, and another 450,000 are held in trust for the tribes. Trust
and fee lands are commonly interspersed in the ``checkerboard''
ownership pattern.
Because of this checkerboard pattern on the reservation, land
restoration has been a priority for the Fort Peck Tribes for several
years. In fact, the Fort Peck Tribes were the leaders in securing the
passage of the Submarginal Lands Act, the most significant effort since
the IRA to restore tribal land bases. In 1976, Congress enacted the
Submarginal Lands Act, returning to tribal ownership lands on specified
Indian reservations--including Fort Peck Reservation--that had gone out
of trust and had been classified, during the Depression, as
``submarginal,'' because of their limited ability to support farming
and ranching. These lands were returned to trust status, without cost
to the tribes. This effort took over 10 Congresses and obviously a
great deal of dedication and commitment on our part to see our lands
restored. Our commitment to this issue remains the same today.
In the last 7 years, approximately 10,000 acres of land have gone
out of trust on the Fort Peck Reservation. This is largely due to
probates and land passing to children, who are not enrolled in any
tribe. Thus, the tribes understand and support the committee's effort
with the 2000 Amendments to ILCA to seek to prevent the further erosion
of tribal trust land bases. Nevertheless, we recognize that the right
of a child to inherit from his parents is a right that most believe is
fundamental and should be protected. Thus, we support the committee's
renewed effort in S. 1340 to ensure this right is protected.
Nevertheless, this means that land on the Fort Peck Reservation will
pass out of trust faster than it will pass into trust.
The Tribes believe that the only way to stem the loss of trust
lands, is to fund land acquisition programs and expedite the process
for restoring fee interest in allotments to trust status. As other
witnesses have shared with the committee, the Fort Peck Tribes support
a concerted effort to fund land consolidation efforts. Without this
effort, the disastrous Federal policies of the nineteenth century will
supersede the policies and efforts of Congress in the twentieth
century. In the 21st Century, we need Congress to make a renewed
commitment to overturning the policies of allotment and assimilation
and seek to restore what was guaranteed my tribes and other tribes
throughout this country.
The tribes support the committee's effort to enact a uniform
intestate and probate code for reservations. This is particularly
important for places like Fort Peck, where our Tribal Constitution
prohibits the tribes from enacting any laws regarding the probate of
allotted lands.
In the area of probate, the tribes would like to suggest one change
to the law that involves estates of minimal trust cash balances. At
Fort Peck, we have a number of these cash only estates, where the
estate is less than $100 and the beneficiaries are in excess of 100.
Thus, checks in the amount of $1 or less are issued to beneficiaries.
We have found that while these checks arc delivered, sometimes they are
not cashed. Therefore, the account remains open and in fact draws
interest. Because these checks are never cashed we cannot close these
probates.
We suggest that the law specifically provide that any probate check
of less than a certain minimal amount (perhaps $10) must be cashed
within 365 days of receipt, otherwise the proceeds of the checks will
be deposited in a special account in the Federal treasury that would be
for tribal trust and acquisition efforts. This will allow the accounts
to be closed and this minimal amount of money to be put to beneficial
purposes. Furthermore, this change would be consistent with the law
regarding commercial paper and with certain states' practices regarding
unclaimed accounts.
The Tribes would also like to express our concern with the
provision in S. 1340, that would allow for child support orders from
any jurisdiction to be paid from IIM trust accounts. While we support
enforcement of child support orders, the law at Fort Peck is that for
an order to be enforced it must be perfected in Fort Peck Tribal Court.
This preserves tribal authority over the people and property within the
Fort Peck Reservation. S. 1340 as introduced is inconsistent with this
principle. Thus, we would ask the committee to strike this provision
from the bill.
We thank committee for the opportunity to submit this testimony.
______
Prepared Statement of Benjamin Speakthunder, President, Fort Belknap
Community Council
Good morning, I am Benjamin Speakthunder, president of the Fort
Belknap Community Council; a member of the Assiniboine Nation of the
Fort Belknap Indian Reservation. I am extremely honored to be able to
address this committee on a very important and complex issue that we in
Indian country throughout the United States face on a daily basis. The
issue that I am speaking about impacts ALL members of our tribes, both
the Assiniboine and Gros Ventre of Fort Belknap, and other Nations and
that is the ``COMPLICATED HEIRSHIP'' otherwise know as Undivided
Interest.
With respect to S. 1340 ``INDIAN PROBATE REFORM ACT OF 2001'' I
offer the following comments on behalf of the Fort Belknap Indian
Reservation. Neither the General Allotment Act (Dawes Act) nor the
individual Allotment Acts contain any provisions for Rights-Of-Way on
or across other lands for access to other lands. We feel that this
should be one of the points in advising persons who make wills to
consider reservation of rights-of-way on and across their lands. In
addition, title status reports need to be corrected to reflect the
right-of-ways that currently exist.
Section 232. RULES RELATING TO INTESTATE INTERESTS AND PROBATE (b)
(1) (B) OTHER HEIRS: Include Great-grandchildren and other ``DIRECT
LINEAL DESCENDANTS'' to be included in other appropriate sections. In
addition, the current definition of ``Indian'' must be repealed. This
definition will harm Indian country, cause jurisdictional problems, and
cutoff far too many people who are Indian, yet not enrolled for a
variety of reasons. A restrictive definition of Indian will reduce
trust landholdings. Defining who can inherit is a tribal authority and
needs to be determined by each respective tribal community.
In order for true consolidation to take place we recommend that a
provision be included within S. 1340 that would repeal the joint
tenancy provision within the current Indian Land Consolidation Act.
Creation of joint tenancy with right of survivorship for 5 percent or
less interests prevents these interests from being passed to eligible
heirs, namely children.
With respect to the intent of the ``INDIAN LAND CONSOLIDATION ACT''
AND SUBSEQUENT AMENDMENTS, a Tribal Probate Code duly passed and
adopted by a Tribal Government should supersede not only State Law, but
FEDERAL LAW as well as it may apply to that Reservation.
The Bureau of Indian Affairs has a ``LAND CONSOLIDATION PROGRAM''
funded by Congress that is implemented, to our knowledge, with tribes
in the Minnesota Region. As we understand this program, the BIA
purchases, on behalf of the tribe, shares, preferably 2 percent or
less, from ``willing sellers''. These shares are held in Trust by the
United States on behalf of the tribe until the rental income from the
share refunds the purchase price of the share acquired. This means that
for each share acquired, an Individual Indian Money (IIM) account must
be maintained to account for the income and repayment of that share. To
me, and others, this is not true consolidation.
True consolidation is when the share is acquired and the former
owner's account is closed for that tract. If individuals, either co-
owner of stranger, or the tribe is provided the financial banking to
acquire this share and other shares in a given tract of land, then the
tract if truly consolidated for the purpose of reducing the
administrative costs of the Federal Government.
Fort Belknap was allotted by the act of March 3, 1921 (41 Stat.
1355) whereby 1,188 members of the Assiniboine and Gros Ventre Tribes
received an allotment of land varying from 400 to 520 acres of land
depending upon the classification of the land allotted (ie: pasture,
irrigated, homestead, etc.). As of this date the number of individual
owners has increased from 1,188 to in excess of 4,000 and the number of
tracts maintained by the BIA has increased from 1,189 to in excess of
2,970 tracts. There are 2,273 tracts in Individual ownership and 699
tribal ownership tracts with a total of 18,731 individual interested.
In addition, there are 1,931 Mineral tracts in Individual ownership and
44 tribal ownership mineral tracts with a total of 24,120 individual
interests.
At Fort Belknap, we have had a land acquisition program since the
early 1930's and have re-acquired a little less than one-half of the
allotted lands within our reservation. Currently, approximately 47
percent of the reservation is in Individual Trust ownership, 43 percent
is in tribal trust ownership and the remaining 10 percent is fee
patent, to include 19,000+ acres of State school lands.
On behalf of the enrolled members of the Fort Belknap Indian
Community (Reservation) I urge the Congress of the United States to
partially fulfill their trust responsibility by funding this innovate
and worthwhile project to accomplish true LAND CONSOLIDATE at Fort
Belknap. Upon completion of this project, which we estimate will take
from seven (7) to ten (10) years with annual appropriates of from $3
million to $5 million we will be able to accomplish our goal and have
in place a program that can be replicated throughout Indian country so
other tribes and individuals can benefit. I would like to submit the
Fort Belknap Land Consolidation Plan for the record. Additionally I
would like to refer to Arvel Hale's affidavit submitted to this
committee. Mr. Hale, former chief appraiser for the Department of the
Interior has designed a land data model which provides for appraisals,
purchase and sale of fractionated interests. This model could be
applied within the Fort Belknap Land Consolidation Plan.
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