[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
___________________________________________________________________________
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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

                              ----------                              


                        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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