[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
S. 1721, A BILL TO AMEND THE INDIAN LAND CONSOLIDATION ACT TO IMPROVE
PROVISIONS RELATING TO PROBATE OF TRUST AND RESTRICTED LAND.
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
Wednesday, June 23, 2004
__________
Serial No. 108-98
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona Stephanie Herseth, South Dakota
Tom Osborne, Nebraska George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Dennis R. Rehberg, Montana Ruben Hinojosa, Texas
Rick Renzi, Arizona Ciro D. Rodriguez, Texas
Tom Cole, Oklahoma Joe Baca, California
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
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Page
Hearing held on Wednesday, June 23, 2004......................... 1
Statement of Members:
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona, Prepared statement of.................... 39
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan, Prepared statement of................... 39
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 3
Prepared statement of.................................... 4
Statement of Witnesses:
Colombe, Hon. Charles C., President, Rosebud Sioux Tribe,
Rosebud, South Dakota...................................... 21
Prepared statement of.................................... 23
Giles, Marcella, Esq., Member, Indian Land Working Group..... 40
Prepared statement of.................................... 41
Lyons, Hon. Maurice, Chairman, Morongo Band of Mission
Indians, Banning, California............................... 27
Prepared statement of.................................... 28
Oshiro, Lisa C., Directing Attorney, California Indian Legal
Services................................................... 46
Prepared statement of.................................... 47
Swimmer, Ross O., Special Trustee for American Indians, U.S.
Department of the Interior................................. 5
Prepared statement of.................................... 7
LEGISLATIVE HEARING ON S. 1721, TO AMEND THE INDIAN LAND CONSOLIDATION
ACT TO IMPROVE PROVISIONS RELATING TO PROBATE OF TRUST AND RESTRICTED
LAND, AND FOR OTHER PURPOSES.
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Wednesday, June 23, 2004
U.S. House of Representatives
Committee on Resources
Washington, D.C.
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The Committee met, pursuant to call, at 10 a.m., in Room
1324, Longworth House Office Building, Hon. Richard W. Pombo
[Chairman of the Committee] presiding.
Members Present: Representatives Pombo, Walden, Hayworth,
Osborne, Renzi, Pearce, Bishop, Rahall, Faleomavaega, Pallone,
Inslee, Udall of New Mexico, Udall of Colorado, Grijalva, and
Herseth.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
The Chairman. The Committee on Resources will come to
order. The Committee is meeting today to hear testimony on S.
1721, the American Indian Probate Reform Act of 2004.
The Chairman. Under Rule 4(g) of the Committee Rules, any
oral opening statements at hearings are limited to the Chairman
and Ranking Minority Member. This will allow us to hear from
our witnesses sooner and help Members keep to their schedules.
Therefore, if other Members have statements, they can be
included in the hearing record under unanimous consent.
The Chairman. The bill on which the Committee is receiving
testimony today addresses one of the major problems that led to
the Indian Trust Fund lawsuit, the fractionalization of Indian
land and the lack of sound Federal or tribal probate laws. The
Cobell lawsuit arose from the historic failure of past
Administrations to properly account for monies generated from
revenue-producing activities on individual Indian trust lands.
While such a failure should not be excused, it was a failure
made difficult to remedy because of the phenomenon of Indian
land fractionalization. Within another generation, it will be
almost impossible to fix unless we change existing law
concerning probate and fractionalization.
Fractionalization has created a situation in which hundreds
of individual Indians own undivided interests in a single
parcel of trust land that may generate only pennies in revenue
for each owner. It is not difficult to see what problems that
causes. It's nearly impossible to obtain consensus from so many
owners to do anything productive or meaningful with the land.
It is extremely difficult to manage trust accounts for each of
the owners. If the co-owners of such a parcel die without
leaving a will, the land continues to fractionate
exponentially.
With the passing of a couple more generations, the number
of owners of this property will explode, resulting in an
administrative catastrophe. The problem has to be addressed
now. S. 1721 represents a major step toward slowing and
hopefully stopping the continued fractionation of small
ownership interests in Indian land. It does so through a
variety of measures, including the creation of a uniform
Federal probate code and the authorization for tribes to adopt
their own probate codes.
The legislation contains numerous incentives for the
Department of the Interior, tribes and owners of individual
trust lands to consolidate parcels through partition. Most
important, the bill encourages Indians to creates wills so that
they have the maximum freedom to divide their property to their
chosen heirs.
I look forward to hearing an analysis of this lengthy and
complicated bill from today's witnesses, all of whom had key
roles in helping to draft the product before the Committee
today.
[The prepared statement of Chairman Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
The bill on which the Committee is receiving testimony today
addresses one of the major problems that led to the Indian trust fund
lawsuit--the increasing fractionation of Indian land and the lack of
sound federal or tribal probate laws.
The Cobell lawsuit arose from the historic failure of past
Administrations to properly account for monies generated from revenue-
producing activities on individual Indian trust lands. While such a
failure should not be excused, it was a failure made difficult to
remedy because of the phenomenon of Indian land fractionation. Within
another generation, it will be almost impossible to fix unless we
change existing law concerning probate and fractionation.
Fractionation has created a situation in which hundreds of
individual Indians own undivided interests in a single parcel of trust
land that may generate only pennies in revenue for each owner. It's not
difficult to see what problems fractionation causes. It's nearly
impossible to obtain consensus from so many owners to do anything
productive or meaningful with the land. It's extremely difficult to
manage trust accounts for each of the owners.
If the co-owners of such a parcel die without leaving a will, the
land continues to fractionate exponentially. With the passing of a
couple more generations, the number of owners of this property will
explode, resulting in an administrative catastrophe. The problem has to
be addressed now.
S. 1721 represents a major step toward slowing--and hopefully
stopping--the continued fractionation of small ownership interests in
Indian land. It does so through a variety of measures, including the
creation of a uniform federal probate code and the authorization for
tribes to adopt their own probate codes. The legislation contains
numerous incentives for the Department of the Interior, tribes, and
owners of individual trust lands to consolidate fractionated parcels
through partition. Most important, the bill encourages Indians to
create wills so that they have the maximum freedom to devise their
property to their chosen heirs.
I look forward to hearing an analysis of this lengthy and
complicated bill from today's witnesses, all of whom had key roles in
drafting the product before the Committee today.
______
The Chairman. I'd now like to recognize the Ranking Member
Mr. Rahall.
STATEMENT OF THE HON. NICK J. RAHALL, II, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
Mr. Rahall. Thank you, Mr. Chairman.
Mr. Chairman, to be frank, slogging through the bill
pending before us today is a tedious chore. With terms like
pendency of probate, afterborn heirs and revocation of owner-
managed status, this is a bill only a probate lawyer and the
green eyeshade folks can love.
What is not a chore, however, is looking into the faces of
Indian country whose very family and tribal traditions depend
on how we respond to the land crisis this bill seeks to
address. This bill is about the proud Sioux father who has
spent a lifetime teaching his children and his grandchildren
the importance of a piece of land. He has taught them through
stories told to him by his father and to his father by his
grandfather, how they all connected to that land. He tells them
that soon the land will be theirs to tend and to pass on to
their children and their children's children. The bill is about
the elderly Navajo woman who has toiled and tended her herd of
sheep for years the way she learned from her mother. Now old
and tired, she dreams of seeing generations yet to come getting
nourishment from that very land. And this bill is about the
young Indian couple living in the lush Northwest having
recently inherited land. They excitedly plan their future,
counting on revenue from land resources they hold and will
protect.
I understand this high value of land, where the value is
not only commercial, but spiritual. In Appalachia we, too,
cherish land passed down through the generations. We also
respect that tradition, and along with our families and our
Maker, we hold it in the highest regard. For all of these
reasons, we have to get it right with this bill. We must ensure
Indian lands stay in Indian hands and in trust status.
Congress has made several previous attempts to address the
administration and management of Indian allotments, and each
endeavor has produced mixed results. We have had parts of two
such attempts deemed unconstitutional, and the latest fix is
under threat of being the cause of thousands of acres of land
coming out of trust status if implemented as the Administration
plans. This would be a devastating policy throughout Indian
country.
So, Mr. Chairman, I welcome our witnesses here this
morning, and I thank them for coming to give us the benefit of
their expertise as they are the ones dealing with these
problems on a day-to-day basis.
And if I may ask the consent of the Chair, before we hear
from our witness, to welcome our newest member of the Resources
Committee, Ms. Stephanie Herseth from the State of South
Dakota. I do introduce her to our full Committee this morning.
South Dakotans, as we all know, were faced with the unfortunate
task of replacing their lone Representative to this body, and
they rose to the occasion by electing an energetic, bright and
highly qualified woman. Congresswoman Herseth is a lawyer by
training, who has worked to enrich South Dakota by bringing
tribal concerns to the attention of the South Dakota Public
Utilities Commission, advocating with the legal counsel for the
elderly and in 2003 serving as the executive director of the
South Dakota Farmers Union Federation.
This Committee and the Forest Subcommittee to which she has
been appointed will undoubtedly benefit from her perspective on
a range of issues, particularly Indian affairs, as 12 percent
of her constituents are of Native American descent. And in the
words of President John Yellowbird, still of the Oglala Sioux
tribe from South Dakota, and I quote, we think she belongs in
Congress, and her appointment to this Committee is icing on the
cake.
I couldn't have said it any better, and I join with my
colleagues in welcoming Stephanie to the Committee. And I know
that her addition to the Congress is one in which all of us can
benefit. Welcome, Stephanie.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II,
Ranking Democrat, Committee on Resources
Mr. Chairman. To be frank, slogging through the bill pending before
us today is a tedious chore. With terms like ``pendency of probate,''
``after-born heirs,'' and ``revocation of owner-managed status,'' this
is a bill only a probate lawyer and the green-eyeshade folks can love.
What is not a chore, however, is looking into the faces of Indian
Country whose very family and tribal traditions depend on how we
respond to the land crisis this bills seeks to address.
This bill is about the proud Sioux father who has spent a lifetime
teaching his children and his grandchildren the importance of a piece
of land. He has taught them through stories told to him by his father,
and to his father by his grandfather, how they are all connected to
that land. He tells them that soon the land will be theirs to tend and
pass on to their children and to their children's children.
This bill is about the elderly Navajo woman who has toiled and
tended her herd of sheep for years the way she learned from her mother.
Now old and tired she dreams of seeing generations yet to come getting
nourishment from that very land.
And this bill is about the young Indian couple living in the lush
northwest, having recently inherited land, they excitedly plan their
future, counting on revenue from land resources they hold and will
protect.
I understand this high value of land. Where the value is not only
commercial but spiritual. In Appalachia, we too cherish land passed
down through the generations. We also respect that tradition and, along
with our families and our Maker, we hold it in the highest regard.
For all of these reasons, we have to get it right with this bill.
We must ensure Indian lands stay in Indian hands and in trust status.
Congress has made several previous attempts to address the
administration and management of Indian allotments and each endeavor
has produced mixed results.
We have had parts of two such attempts deemed unconstitutional and
the latest fix is under threat of being the cause of thousands of acres
of land coming out of trust status if implemented as the Administration
plans. This would be a devastating policy throughout Indian country.
So, Mr. Chairman, I welcome our witnesses here this morning and
thank them for coming to give us benefit of their expertise as they are
the ones dealing with these problems on a day-to-day basis.
______
The Chairman. Congratulations, and welcome to the
Committee.
I'd like to introduce our first witness, Ross Swimmer, the
Special Trustee for American Indians.
Let me take this time to remind all of today's witnesses
that under our Committee Rules, oral statements are limited to
5 minutes. Your entire written statement will appear in the
record.
Mr. Swimmer, welcome to the Committee. If I could have you
stand and raise your right hand.
[Witness sworn.]
The Chairman. Welcome back to the Committee. It's nice to
have you. I have reviewed your testimony, and we are all very
anxious to have a chance to discuss this bill further with you.
So if you're ready, you can begin.
STATEMENT OF ROSS SWIMMER, SPECIAL TRUSTEE FOR AMERICAN
INDIANS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Swimmer. Thank you, Mr. Chairman and members of the
Committee. I appreciate the opportunity to be here to visit
with you today about 1721. I appreciate that our testimony,
written testimony, will be accepted for the record.
I'd also like to recognize not only the work of this
committee, but the work of the Senate Indian Affairs Committee,
and especially Senator Campbell and Senator Inouye, who have
led the effort in developing S. 1721, and the staff work that
was done in conjunction with meeting many American Indian
groups, the California Indian Legal Services, NCAI, the Indian
Land Working Group and various tribal leaders, some of whom
you'll hear from today. This has certainly been a joint effort
of a lot of people that are bringing this bill forward.
I would also like to advise the Committee that I am here as
a Special Trustee for American Indians. This issue is very high
profile in the trust. It deals with trust assets. Mr. Anderson,
the Assistant Secretary, would be here, Mr. Chairman, however,
he is also testifying right now before the Senate Indian
Affairs Committee on another matter that's very important to
the Bureau of Indian Affairs.
I would like to express the Administration's support for S.
1721. In fact, this may be considered one of the most important
legislative acts of this congressional session. It is important
not only to the Administration in solving some of the very
difficult problems involving fractionation in Indian country,
but it's important to Indian country as a whole because of what
has happened over the century, the last century, and this
century, in fact, as fractionation continues to plague Indian
country.
As you mentioned, it's not the first time it's been before
Congress. It actually was raised in the 1920s, the 1930s,
1970s, and actually dealt with for the first time legislatively
in the 1980s. And I think we all know what happened then. There
was an effort to deal with the very small fractionated
interests, the 2 percent or less of interests that were owned
by Indian individuals, and that solution was to escheat those
interests to the resistive tribe over which jurisdiction was
being exercised.
Unfortunately, the Supreme Court did reverse the
legislative mandate and held that it was unconstitutional, that
it was an actual taking of property without compensation, and
as a result of that effort, and the Court's subsequent ruling,
of course, things were made even worse because we now have
thousands of interests that were escheated to tribes that have
to be dealt with and subsequent probates that have happened,
even to the owners of those interests back in the '80s.
S. 1721 is important for several reasons. There are several
portions of the act. One is the Uniform Probate Code. The
Uniform Probate Code will allow the adjudicators, the
administrative law judges and attorney decisionmakers within
the Bureau of Indian Affairs to work within a single probate
code rather than having to deal with multiple State codes. It
is not unusual now for an Indian individual to pass away and
leave interests, as many as 10 or more interests, all of which
may be located in different States, and all of which would have
to be probated under those State laws. This uniform code, we
believe, will allow a much more uniform probate of those
estates and administration of the estates, and make the probate
much more efficient.
We believe the bill will protect trust land status. It
defines highly fractionated land. There is a single heir rule
for inheriting of highly fractionated land. It makes the land
acquisition program permanent, what we call the Indian Land
Consolidation Program. And it creates a partitioning authority
to support returning land to a single Indian or tribal owner.
It also provides for a pilot program for family trusts to be
created and allows for self-directed trusts by consenting
owners who want more responsibility for the management of their
property and less oversight by the Secretary.
Our written statement contains examples of several problems
created by the fractionation of Indian ownership. I would like
to add that although we have given examples in the written
testimony, these are not exceptions. The examples you see in
the written testimony are more the rule than the exception.
There are millions of acres of land today that are not
benefiting Indian owners because of highly fractionated
ownership.
I would also like to suggest to the Committee that whether
this be bill through an amendment or subsequent legislation
that the Committee may consider, that there are two issues
remaining that do need to be dealt with. One is what we call
the Youpee issue, which I mentioned earlier, the overturning of
the law by the Supreme Court, which in essence said that the
escheat of property less than 2 percent was unconstitutional.
We need to have that defined that it is a taking and a
legislation that would authorize a payment for those interests.
We also have an issue with whereabouts unknown. Over the
years, many, many individual Indian people are no longer known
to the Department as far as their address is concerned. They
have been--we have attempted to contact them many, many times
and get--have no success in doing so. We have as many as 40-,
45,000, I believe, last count of whereabouts unknown that own
this property, and it would be impossible to purchase their
interest if we attempted because we can't locate them. We do
need to have some relief in the form of what most States have,
a uniform unclaimed property act of some sort that would allow
these interests then to be disposed of or acquired by the
Secretary for the benefit of the tribe.
With that, again, I would like to say, too, that the
Administration is very supportive of this bill, and once again,
thank those who participated in the development of it and be
happy to answer any questions you might have.
The Chairman. Thank you.
[The prepared statement of Mr. Swimmer follows:]
Statement of Ross O. Swimmer, Special Trustee For American Indians,
U.S. Department of the Interior
Mr. Chairman and Members of the Committee, I am pleased to be here
today to provide the Administration's views on S. 1721, a bill to amend
the Indian Land Consolidation Act (ILCA) to improve provisions relating
to the probate of trust and restricted land. The Department would like
to thank the Congress for its continued efforts to address this
extremely important issue. This bill will provide the Department with
valuable tools to help expedite the probate process through enactment
of a uniform probate code, as well as provisions to help stop the
exponential growth of fractionated interests. The Department strongly
supports S. 1721.
Secretary Norton has spent a major portion of her time as Secretary
on the many issues surrounding reform of the Indian trust. Among the
most important aspects of trust reform are the need to reform our
Indian probate system and the need to stem the growing fractionation of
individually owned Indian lands. Our current probate system is costly,
cumbersome, and confusing. It contributes to fractionation rather than
helping stem it. Fractionation of Indian lands is a continually growing
problem. This Administration supports the swift enactment of legal
reforms to Indian probate, and of measures aimed at reconsolidating the
Indian land base and returning Indian lands to tribal ownership. As we
have stated on numerous occasions, this may be our last opportunity to
reform probate before the current system collapses.
S. 1721 provides this reform. We at Interior worked extensively
with the Senate Committee on Indian Affairs during its development and
consideration of this bill. We believe you have a sound piece of
legislation before you today that will benefit Indians, their heirs,
and Indian Tribes.
This legislation is one of the pieces necessary for true trust
reform. Not only will it improve the probate process, but it will also
allow the Department and Indian Country to consolidate Indian land
ownership in order to restore full economic viability to Indian assets.
S. 1721 provides a uniform probate code for Indian Country, adding
consistency and clarity to the probate process. In addition, S. 1721
provides valuable tools for attacking the fractionation problem, by
defining highly fractionated lands, providing for a single heir rule
intestate, allowing greater flexibility to consolidate and purchase
interests during probate, making Interior's Land Acquisition Pilot
Program permanent, and creating partition authority where the tribe or
a current interest owner can request a sale of the parcel to make it
whole with one individual.
For nearly one hundred years, the fractionation problem has grown.
We are now at the point where, absent serious corrective action,
millions of acres of land will be owned in such small ownership
interests that no individual owner will derive any meaningful value
from that ownership. The ownership of many disparate, uneconomic, small
interests benefits no one in Indian Country. It creates an
administrative burden that drains resources away from other beneficial
Indian programs. S. 1721 will help slow the growth of fractionated
interests and provide necessary tools that we can build upon in the
future to resolve this problem.
BACKGROUND
Over time, the system of allotments established by the General
Allotment Act (GAA) of 1887 has resulted in the fractionation of
ownership of Indian land. As original allottees died, their heirs
received an equal, undivided interest in the allottee's lands. In
successive generations, smaller undivided interests descended to the
next generation. Fractionated interests in individual Indian allotted
land continue to expand exponentially with each new generation. Today,
there are up to approximately four million owner interests in 10
million acres of individually owned trust lands, a situation the
magnitude of which makes management of trust assets extremely difficult
and costly. These interests could expand dramatically by the year 2030
unless an aggressive approach to fractionation is taken. There are now
single pieces of property with ownership interests that are less than
0.0000001 percent or 1/9 millionth of the whole interest, which has an
estimated value of .004 cent.
The Department is involved in the management of 100,000 leases for
individual Indians and tribes on trust land that encompasses
approximately 56 million acres. Leasing, use permits, sale revenues,
and interest of approximately $195 million was collected in FY 2003 for
approximately 240,000 individual Indian money (IIM) accounts, and about
$375 million was collected in FY 2003 for approximately 1,400 tribal
accounts. In addition, the trust currently manages approximately $2.8
billion in tribal funds and $400 million in individual Indian funds.
There are approximately 240,000 open IIM accounts, the majority of
which have balances under $100 and annual throughput of less than
$1,000. Interior maintains over 20,000 accounts with a balance between
one cent and one dollar, and no activity for the previous 18 months.
The total sum included in these accounts is about $5,700, for an
average balance of .30 cents. Nonetheless, the Department has an equal
responsibility to manage each account and the real property associated
with it, no matter how small and regardless of account balance.
Obviously, no one benefits from such expenditures.
Under current regulations, probates need to be completed for every
account with trust assets, even those with balances between one cent
and one dollar. While the average cost for a probate process exceeds
$3,000, even a streamlined, expedited process (if one was available)
costing as little as $500 would require almost $10,000,000 to probate
the $5,700 in these accounts.
Unlike most private trusts, the Federal Government bears the entire
cost of administering the Indian trust. As a result, the usual
incentives found in the commercial sector for reducing the number of
small or inactive accounts do not apply to the Indian trust. Similarly,
the United States has not adopted many of the tools that States and
local government entities have for ensuring that unclaimed or abandoned
property is returned to productive use within the local community.
PERSISTENT PROBLEM
The overwhelming need to address fractionation is not a new issue.
In the 1920's the Brookings Institute conducted the first major
investigation of the impacts of fractionation. This report, which
became known as the Merriam Report, was issued in 1928 and formed the
basis for land reform provisions that were included in what would
become the Indian Reorganization Act of 1934 (IRA). The original
versions of the IRA included two key titles; one dealing with probate
and the other with land consolidation. Because of opposition to many of
these provisions in Indian Country, most of these provisions were
removed and only a few basic land reform and probate measures were
included in the final bill. Thus, although the IRA made major reforms
in the structure of tribes and stopped the allotment process, it did
not meaningfully address fractionation (and the subsequent adverse
impacts in the probate process).
Accordingly, in August 1938, the Department convened a meeting in
Glacier Park, Montana, in an attempt to formulate a solution to the
fractionation problem. Among the observations made in 1938 were that
there should be three objectives to any land program: stop the loss of
trust land; put the land into productive use by Indians; and reduce
unproductive administrative expenses. Another observation made was that
any meaningful program must address probate procedures and land
consolidation. It was also observed that Indians themselves were aware
of the problem and many would be willing to sell their interests.
Similar observations were made in 1977 when the American Indian
Policy Review Commission reported to Congress that ``although there has
been some improvement, much of Indian land is unusable because of
fractionated ownership of trust allotments'' and that ``more than 10
million acres of Indian land are burdened by this bizarre pattern of
ownership.'' The Commission reiterated the need to consolidate and
acquire fractionated interests and suggested in this report several
recommendations on how to do so. Many of the observations and
objectives made in 1938 and 1977 are the same today.
In 1992, the General Accounting Office (GAO) conducted an audit of
12 reservations to determine the severity of fractionation on those
reservations. The GAO found that on the 12 reservations upon which it
compiled data, there were approximately 80,000 discrete owners but,
because of fractionation, there were over a million ownership records
associated with those owners. The GAO also found that if the land was
physically divided by the fractional interests, many of these interests
would represent less than one square foot of ground. In early 2002, the
Department attempted to replicate the audit methodology used by the GAO
and to update the GAO report data to assess the continued growth of
fractionation and found that it grew by over 40 percent between 1992
and 2002.
As an example of continuing fractionation, consider a real tract
identified in 1987 in Hodel v. Irving 481 U.S. 704 (1987):
Tract 1305 is 40 acres and produces $1,080 in income annually.
It is valued at $8,000. It has 439 owners, one-third of whom
receive less than $.05 in annual rent and two-thirds of whom
receive less than $1. The largest interest holder receives
$82.85 annually. The common denominator used to compute
fractional interests in the property is 3,394,923,840,000. The
smallest heir receives $.01 every 177 years. If the tract were
sold (assuming the 439 owners could agree) for its estimated
$8,000 value, he would be entitled to $.000418. The
administrative costs of handling this tract are estimated by
the BIA at $17,560 annually.
Today, this tract produces $2,000 in income annually and is valued
at $22,000. It now has 505 owners but the common denominator used to
compute fractional interests has grown to 220,670,049,600,000. If the
tract were sold (assuming the 505 owners could agree) for its estimated
$22,000 value, the smallest heir would now be entitled to $.00001824.
Fractionation continues to become significantly worse and as
pointed out above, in some cases the land is so highly fractionated
that it can never be made productive because the ownership interests
are so small it is nearly impossible to obtain the level of consent
necessary to lease the land. In addition, to manage highly fractionated
parcels of land, the government spends more money probating estates,
maintaining title records, leasing the land, and attempting to manage
and distribute tiny amounts of income to individual owners than is
received in income from the land. In many cases the costs associated
with managing these lands can be significantly more than the value of
the underlying asset.
CONGRESSIONAL RESPONSE
Congress recognized 20 years ago the need to take firm action to
resolve the problem of small uneconomic interests in Indian land. In
1983 Congress attempted to address the fractionation problem with the
passage of the Indian Land Consolidation Act (ILCA). The Act authorized
the buying, selling and trading of fractional interests and for the
escheat to the tribes of land ownership interests of less than two
percent. A lawsuit challenging the constitutionality of ILCA was filed
shortly after its passage. While the lawsuit was pending Congress
addressed concerns with ILCA expressed by Indian tribes and individual
Indian owners by passing amendments to ILCA in 1984.
In 1987, the United States Supreme Court held the escheat provision
contained in ILCA as unconstitutional because ``it effectively
abolishes both descent and devise of these property interests.'' (See
Hodel v. Irving (481 U.S. 704, 716 (1987)). However, the Court stated
that it may be appropriate to create a system where escheat would occur
when the interest holder died intestate but allowed the interest holder
to devise his or her interest. The Court did not opine on the
constitutionality of the 1984 amendments in the Hodel opinion. However
in 1997, in Babbit v. Youpee (519 U.S. 234 (1997)), the Court held the
1984 amendments unconstitutional as well.
As a result, Committee staff, the Department, tribal leaders, and
representatives of allottees worked together to craft new ILCA
legislation. This cooperation led to enactment of the Indian Land
Consolidation Act Amendments of 2000. Neither the 1984 amendments nor
the 2000 amendments authorized the system discussed by the Court in
Hodel where an interest holder would be able to devise his interest to
an heir of his choice.
The 2000 amendments attempted to address the fractionation problem
through inheritance restrictions which, when effective, would make
certain heirs and devisees ineligible to inherit in trust status, and
require that certain interests be held by the heirs and devisees as
joint tenants, with rights of survivorship. The legislation also
contained provisions for the consolidation of fractional interests.
Tribes and individual allotment owners can now consolidate their
interests via purchase or exchange, with fewer restrictions. The
legislation also attempted to enhance opportunities for economic
development by negotiated agreement, standardizing, and in some cases
relaxing the owner consent requirements. Finally, the amendments
extended the Secretary's authority to acquire fractional interests
through the Indian land acquisition pilot program, with the
establishment of an Acquisition Fund, and the authorization of annual
appropriations to help fund the acquisitions. While many of these new
authorities were immediately effective, the inheritance restrictions
were not. Under ILCA, the Secretary is required to certify that she has
provided certain notices about the probate provisions of the 2000
amendments before most of these provisions become effective. Congress
requested that the Secretary not certify because additional amendments
were needed.
Some of the land related provisions are currently in effect, such
as the pilot program to acquire fractionated interests. In fact, the
BIA has conducted a pilot fractionated interest purchase program in the
Midwest Region since 1999. As of March 31, 2004 the Department has
purchased 78,321 individual interests equal to approximately 49,155
acres. The Department is in the process of expanding this successful
program nationwide. We also plan, where appropriate and to the extent
feasible, to enter into agreements with Tribes or tribal organizations
and private entities to carry out aspects of the land acquisition
program. The 2005 budget request also includes an unprecedented amount
of money for this program and we are pleased that S. 1721 would make it
permanent. However, it is important to note that even with the success
of this program, during this period the number of fractionated interest
grew even larger.
The 2000 amendments have begun enhancing opportunities for economic
development by providing for negotiated agreement, standardizing, and
in some cases relaxing the owner consent requirements. This has
streamlined the leasing process for land owners to enter into business
and mineral leases. While many of the land related provisions have
proven to be successful, many other provisions, especially the probate
provision, have proven to be complicated and difficult to implement.
S. 1721
The Department was hopeful that the 2000 amendments would solve the
fractionation problem. During congressional hearings on the amendments,
the then Assistant Secretary, Kevin Gover, testified that the
amendments would both eliminate or consolidate the number of existing
fractional interests and prevent or substantially slow future
fractionation. He also stated that several technical amendments needed
to be made to the legislation.
Unfortunately, the 2000 amendments have not solved the issue, in
part due to ambiguities in the statute and in part due to the
possibility that full implementation could result in the loss of trust
status for a significant part of the Indian land base. The 2000
amendments have proven to be complicated and difficult to implement. In
addition, certain provisions were left to be dealt with in an
anticipated package of amendments. For instance, the 2000 amendments do
not contain a federal code of intestate succession and certain lands in
California and Alaska were exempted from the probate provisions. At the
same time, fractionation continues to be a pervasive problem in Indian
Country.
We are pleased that S. 1721 considers the above issues by providing
for a uniform probate code and strengthening the ability of and adding
greater flexibility to co-heirs, co-owners, and the tribe to purchase
interests, renounce interests and enter into consolidation agreements
during probate. The Department is also pleased that S. 1721 would
provide for the authority to partition highly fractionated land.
Uniform Probate Code
S. 1721 would provide a uniform probate code for Indians while
still allowing tribes to set up their own codes for their members. As
it currently stands, during probate the Department has to apply the
state law where the trust asset is located. This has lead to the
Department having to apply approximately 33 different state laws when
probating individual trust estates. In many cases, interests in an
estate are located in multiple states resulting in the application of
numerous state laws being applied for one probate.
The application of 33 different state laws has lead to a lack of
consistency and predictability in administering probates in Indian
Country. A uniform probate code will allow the entire estate of a
decedent to be probated under one set of laws no matter where the real
property is located. This will add clarity, consistency and
predictability to the probate process.
We are also pleased that S. 1721 would allow an individual to
devise his property to anyone. Previous versions of ILCA limited the
scope of available heirs in devising one's property. S. 1721 would
allow the property to be devised by will to anyone; the only caveat
would be whether the interest would be inherited in trust or restricted
status or in fee. S. 1721 would also provide for a single heir rule
intestate. Under the single heir rule, when interests are not being
devised in testate (by a will), an interest of less than 5% in a parcel
would be inherited intestate by the oldest in that class (the oldest
child, the oldest grandchild, etc.). Overtime this will help
consolidate interests. Extremely small interests will be prevented from
further fractionating which in turn will help slow the growth of
fractionated interests.
S. 1721 would also strengthen the ability of and add greater
flexibility to co-heirs, co-owners, and the tribe to purchase
interests, renounce interests and enter into consolidation agreements
during probate. Eligible heirs or devisees, co-owners, and the tribe
with jurisdiction over the parcel would be allowed to purchase
interests during probate prior to the distribution of the estate with
the proceeds of the sale being distributed to the heir, devisee, or
spouse whose interest was sold. Heirs would also be given the ability
to renounce or disclaim their interests and enter into consolidation
agreements during probate. These important tools will help enable
individuals to consolidate their interests and prevent the continual
fracturing of estates.
Partition
S. 1721 would authorize the Department to conduct a partition
proceeding of highly fractionated land. Highly fractionated lands are
defined under S. 1721 as those lands having 50 to 100 owners with no
co-owner owning more than 10% undivided interest or any trust or
restricted land with more than 100 co-owners.
Partition under S. 1721 is in essence a forced sale, which could
only be brought upon the request of the tribe with jurisdiction or any
person owning an undivided interest in the parcel of land. The
applicant would be required to obtain consent for the sale from the
tribe with jurisdiction over the parcel, an owner who for the three
years preceding the partition proceeding had maintained a residence or
business on the parcel, or from at least 50 percent of the undivided
interest owners if any one owner's undivided interest has a value
greater than $1,500.
The Secretary, after receiving a payment or bond from the
petitioner, would begin the partition process. The Secretary would
provide notice to the other landowners, conduct an appraisal, allow the
owners the right to comment on or object to the proposed partition and
the appraisal as well as appeal, and conduct a sale. The tribe with
jurisdiction over the parcel or any eligible bidder would be allowed to
purchase the parcel.
We are hopeful that tribes and individual interest owners will take
advantage of this valuable consolidation tool. It is our hope that
these highly fractionated parcels will be purchased so they can be put
to greater economic and viable use. In addition, we look forward to
working with the Committee to bring the language creating a new loan
program into compliance with Federal credit standards.
REMAINING ISSUES
We do request that prior to passing this legislation that Congress
consider amending S. 1721 to provide the Department with the authority
to dispose of unclaimed property and provide for a technical correction
to address the Supreme Court decision in Babbitt v. Youpee, 519 U.S.
234 (1997) and the District Court case decision in DuMarce v. Norton,
Civ. 02-1026, 02-1040, 02-1041 (D.S.D.).
Unclaimed Property
Under state law, a state may sell or auction off certain personal
property that has not been claimed by an owner within a certain amount
of time, usually within 5 years. This is not the case with inactive IIM
accounts or real property interests. Often times the whereabouts of
account owners are unknown to the Department because account holders do
not respond to our requests for address information and our repeated
attempts to locate them have been unsuccessful. This may be because the
small amount in their account does not make such effort worthwhile.
However, the Department must account for every interest regardless of
size and we do not have the authority to stop administering accounts
where whereabouts of the owner are unknown. We must have the authority
to close these small accounts and restore economic value to the assets
if the owner does not claim their interest within a certain amount of
time. If the owner does not come forward, the revenue generated from
the interest should be held in a general holding account against which
claims could be made in the future if the owner's whereabouts become
known or used to further the fractionation program.
Youpee and Sisseton-Wahpeton
We also request a provision be added to S. 1721 that would provide
a technical correction to address the decisions in Youpee v. Babbitt
and DuMarce v. Norton. As mentioned above, the Supreme Court in Youpee
held the escheat provision of ILCA as unconstitutional. In DuMarce v.
Norton, the District Court for the District of South Dakota found
unconstitutional a statute under which any interest of less than two
and a half acres would automatically escheat to the Sisseton Wahpeton
Sioux Tribe. As a result of these two decisions, the Department is
faced with having to revest interests that escheated under both
statutes back to the rightful heir. We request that Congress add a
provision to S. 1721 declaring that any interest that escheated
pursuant to these Acts be vested in the tribe to which they escheated
unless they have been revested in the name of the heirs of the allottee
by the Secretary since the escheatment. The provision should provide
that the escheat of those interests to the tribes involved a taking by
the United States and should provide compensation to the heirs of those
escheated interests.
CONCLUSION
The Department has been heavily engaged on working toward a
constructive solution to the fractionation and probate issues. Over the
last year the Department, congressional staff, the Indian Land Working
Group, and the National Congress of American Indians have worked
extensively on developing ideas and legislative language to
constructively address probate reform and land consolidation. We are
extremely pleased that many of those idea and suggestions are reflected
in this bill.
We thank the Congress for taking the lead on these important issues
for Indian people and trust reform. S. 1721 addresses fractionation in
a meaningful way and provides valuable tools for the Department to
build upon. This concludes my statement. I will be happy to answer any
questions you may have.
______
The Chairman. You suggest a couple of different amendments
to be made to the legislation. How critical do you believe
those amendments are to having legislation enacted that would
work?
Mr. Swimmer. If there would be anything that would delay
the implementation of the legislation as it's written in 1721,
we would not suggest doing anything. If it could be amended to
include those two issues, that would be fine. We think it is
essential that this legislation be passed if at all possible.
It is possible that these other two issues could be addressed
in separate legislation as well.
The Chairman. One of my biggest concerns is dealing with
private property rights, any time we get into an issue like
this, I have concerns about how the individual property rights
will be treated. In your estimation, what in this legislation
guarantees the protection of those individual rights of the
individual tribe members, individual Indians?
Mr. Swimmer. Well, I think throughout the bill there are
provisions that assure that Indian individuals have the right
to deal with their own property; whether it's through
inheritance, in the probate process, even intestate situations,
there are provisions for property being given to the
appropriate heirs.
In the purchase option in the Indian Land Consolidation
Act, again, it is voluntary, and there--except in the partition
provision, which only applies involuntarily to interests that
are under 5 percent, I don't know of any other provision in the
Act that would--could be considered, frankly, a taking of any
kind. I think every provision, and including partition, because
it's not--it doesn't even provide the degree of authority that
you would normally find every day in State law for non-Indians.
The forced sale that's available in the partition section would
only apply to interests that are less than 5 percent. And then
it gives options to the people there to purchase that property
as well.
So there is no sense of escheatment or anything like that
in this bill, so I think throughout the bill that there are
adequate provisions for protecting individual property
interests.
The Chairman. Just to follow that up, when you talked about
an unclaimed property statute of some kind, would any lands or
interests in lands that are taken under that provision go back
to the tribe or other members of that tribe? Would we ensure
that the lands stay there?
Mr. Swimmer. Yes.
The Chairman. So that would be written into the statute?
Mr. Swimmer. What we have proposed to various working
groups in the Indian community as far as unclaimed property,
and what I believe was proposed at one time, or at least
discussed at NCAI, was a provision whereby property that we
could not locate or identify ownership would be converted from
real property into cash for the appraised value. The property
itself would then be transferred to the tribe, the respective
tribe that has the jurisdiction. The cash would be put in an
account available to the individual if and when that individual
or their heirs came to claim the value of the land. It would
allow some certainty, however, in land titles that we don't
have now, because, as I said, these 45,000 people could
potentially own 450,000 interests, and those interests will
forever be unavailable or unusable, frankly, to the tribes or
the individual themselves because their whereabouts are
unknown.
The Chairman. All right. Thank you.
Mr. Rahall.
Mr. Rahall. Thank you, Mr. Chairman.
There is a provision that makes the Department's fractional
interest buy-back initiative, the BIA Indian Land Consolidation
Program, a permanent initiative. I'm wondering, how productive
do you feel the pilot program has been? And how would the
enactment of the pending legislation add to its effectiveness?
Mr. Swimmer. The pilot program has operated for a couple of
years in the Great Lakes area. It has been pretty successful.
In fact, there, in fact, has not been a lack of willing
sellers. I believe nearly 40 percent of the purchases that have
been made from willing sellers were made from people who did
not even realize they owned an interest in the land. These were
people who basically had abandoned the property. They may have
inherited and may realize that their great-great grandfather
had an allotment, but didn't realize that that had passed down
over the years, and they had some minor interest in a piece of
property in the Great Lakes area.
So what we're finding, though, is that as we work with
tribes and let people know that we are engaged in a program to
purchase these fractionated interests, that we have very, very
strong response to that. We have paid, offered the appraised
value, and it's been a very good program. I believe now we have
acquired over some--I believe it's close to 70,000 interests
representing several thousand acres, if you converted it to
acreage. About 80 percent of those interests, I believe, have
been below 2 percent ownership interest.
But as I said, it's not uncommon that when we do purchase
from an individual, we find that they own anywhere from 8 to 10
interests maybe scattered all over the United States because of
inheritance. We'll find people in the Great Lakes area that are
now living in someplace east of the Mississippi. They may own
land in South Dakota, Arizona, Oklahoma, Washington and not
even realize it.
And so we are having good success in the pilot, and we
believe that as we are able to get appropriations to continue
that program, that it will happen elsewhere.
Now, what it allows us to do, of course, is consolidate
those interests within the tribe. It makes those interests much
easier to manage, and it also eventually avoids a probate cost
of the people that are willing to sell their fractionated
interest.
Mr. Rahall. Thank you.
Thank you, Mr. Chairman.
The Chairman. Mr. Hayworth.
Mr. Hayworth. Mr. Chairman, I thank you for the
recognition. I would like to thank Mr. Swimmer and the other
panelists we'll hear from in just a few minutes.
I have no questions, just simply a sentiment to welcome the
newest member of our committee, the lady from South Dakota, and
I'd yield back my time.
The Chairman. Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. And I also want to
welcome our new Congresswoman Stephanie Herseth for being up
here. This is great to see you here today.
I just wanted to thank the Chairman for holding the hearing
and mention that again, which we all know, that the Committee
has taken an active role in trying to help resolve the issue of
trust reform. And I think along with the issue of trust
accounting, land fractionation lies at the heart of trust
reform, and I think if we're able to find a solution to put an
end to land fractionation, we will move one step closer to
solving the greater issue of trust reform. So that's why I
think today is very important.
And I also wanted to note that I think the way this issue
has been approached is the way that we should be approaching
trust reform in general. In other words, it seems clear that
Indian country, Congress and the Administration have been
working together for many years to find a solution to land
fractionation, and it's with this kind of cooperative spirit
that I think we could approach the issue of trust reform
accounting in general. That's why I think this is so important.
But I wanted to ask Mr. Swimmer, I had some general
questions about the Administration's policy when it comes to
land fractionation. According to the Office of Special Trustee,
for the current fiscal year the BIA and the OST are estimated
to spend about 220 million on activities related to
fractionation. These costs are expected to grow sixfold in 20
years to almost 1.2 billion annually. You know, I have
mentioned my concern about the costs dealing with trust reform
in general, and I have always--I will repeat again today that I
think such funds, you know, could be used for other essential
Indian programs. So I always worry about the fact that we are
spending them on this.
But Mr. Rahall, our Ranking Member, went into the whole
issue of the pilot program, and, of course, one of the bills
before us would make permanent the pilot program. And you
talked a little bit, Mr. Swimmer about, you know, whether the
pilot program was working in response to Mr. Rahall. But if you
could be more specific and comment on the number of interests
that you have acquired since the inception of the pilot
program, and how much savings that has resulted in, and how
much savings are expected from the expansion the program,
because there--even though you've acquired a certain amount of
interest, you know, there's evidence that those that remain,
you know, continue to be fractionated at even a greater, you
know, amount. So if you could be more specific about the number
of interests and the savings and how much you expect to be
saved from the expansion if it's made permanent.
Mr. Swimmer. The pilot program, as I understand it--and the
program is being operated by the Bureau of Indian Affairs out
of the Great Lakes region and agency. It is my understanding
that they have acquired between 70- and 80,000 interests.
Those--and I believe that the amount of money spent approaches
the $30 million over the last, say, 2-1/2 years that those
interests have been acquired. In a number of tracts, and that
would be your original allotments, say, an 80-acre tract or
160-acre tract, that's where those interests are, it may be
1,000 interests, for instance, in one tract. And many of those
tracts, I don't have the exact percentage, I think it's
probably around 35 to 40 percent now, they have acquired a
majority interest on behalf of the tribe. And under the current
legislation, that does allow the tribe to acquire the balance
of those interests through some form of condemnation-type
proceeding. They can pursue the other half------
Mr. Pallone. And if I could--I don't want to cut you off,
but I wanted to also ask about the compacts, because I
understand that certain tribes weren't able to participate in
the pilot program, specifically compact tribes such as the
Confederated Salish and others, and I was wondering if there
were going to be such limitations on the national program.
Would you still have those same exclusions?
Mr. Swimmer. I am not aware of those exclusions. In fact, I
was advised by the lead person in the Bureau that Salish/
Kootenai, who is a compacted tribe, was given a sum of money
from the last appropriations, from the '04 appropriation, to
pursue its fractionated program that it already has under way
that itself, the tribe itself, had begun several years ago. So
unless that has changed in the last few weeks, I was told that
they were one of the tribes.
Now, the way I understand it's being operated now is that
it was expanded from reservation to reservation. It started in
the Great Lakes. It was then expanded into the Rosebud
Reservation, and that it also, I believe, is now at Pima in
Arizona. The idea was to try to go to the highly fractionated
reservations, and I believe Crow is one that is on the list
now.
But we also, in addition to that, in order to achieve the
cost savings that we've talked about, are trying to target
those people who have accounts that have very small sums of
money. For instance, I'd mentioned before at an earlier hearing
we have 20,000 account holders who have an average balance of
less than $1. Those, each one of those, even though their
account balance and their land interest may amount to less than
$1 in value, we may spend 3- to $4,000 to probate those
estates.
That's where I would expect the greatest savings to come
in, the administration of the property interest. The actual
leasing of it, is not that big a burden. It's going to be
leased to a single or a group of lessees. The ownership,
though, the expense of the ownership comes in trying to manage
each of those accounts. If we have 1,000 owners, we have to set
up 1,000 accounts. We have to collect the money. And
oftentimes, in a case like I'm discussing, it may be a $500-a-
year lease. We divide that 1,000 different ways, deposit it,
supposedly collect interest on it if it's more than a penny,
and then track those accounts through probate. So our savings
really comes a little bit throughout the system.
To quantify those savings today, I just can't do that. I
can't really tell you other than if we purchase 100 percent of
the owners' property, that we are going to save in the probate.
As I said, an average cost of probate's around 3,000 plus
dollars. We are going to save in account maintenance and the
setup of the account and tracking those moneys that may come in
on that account, and that could be $100, $200 a year. And we
will save in the administration of the land because we'll be
talking about one owner, the tribe, who would then be able to
lease the property without having to send notices out to 1,000
people that it's going to be leased, or 100 people or whatever.
So the savings are throughout the system. To give you a
number, it would just have to be a guess at this point. But the
savings are real ones. We've acquired all of the interests that
an individual might have that are fractionated and that may be
in many different jurisdictions, as I mentioned.
Mr. Pallone. Thank you.
Thank you, Mr. Chairman.
The Chairman. The gentleman's time has expired.
Mr. Pearce.
Mr. Pearce. Thank you, Mr. Chairman.
Mr. Swimmer, I don't know if you regularly talk to Ms.
Norton. This question really should be directed at that, but if
you have regular communication, my concern is that in February
2002, the Interior Department giving strong support, Congress
passed and the President signed into law the mineral
consolidation bill for the Pueblo of Acoma, P.L. 107-138. It
provides that the Interior shall acquire nontravel mineral
rights interest at the Pueblo of Acoma and consolidate
ownership of these interests in trust for Acoma. It's pretty
distressing to learn that 3 years after this, that after the
completing of that bill, the--and the deadline for transferring
those mineral rights, that the MMS is indicating an
unwillingness, not just they haven't done, but an
unwillingness, to carry out the law. And so my question is what
do we do, and how are we going to get about it, and when can I
get an answer back?
Mr. Swimmer. I apologize. I am not familiar with that
issue. I'll take the message back and get a response to you as
soon as possible.
Mr. Pearce. OK. And if the response is that MMS is still
unwilling to do it, we would like explanations of why they feel
like they've got the option to not follow a public law that's
been passed and signed into law. And if they are going to do
it, are they going to comply with the deadlines in the bill? So
if we could get addressing on that. It's a pretty important
matter. Acoma is one of the pueblos in my district that is
trying to hard to make it on their own. They have got several
avenues working, and when they see something that's passed into
law, and they are just met with the same stonewall as before,
it's awkward and it's--it really is not proper.
Thank you, Mr. Chairman.
The Chairman. Mr. Udall.
Mr. Udall of New Mexico. I also would like to welcome our
newest member to the Committee, Stephanie Herseth, and yield
any time to her if she would like to proceed with questioning.
Ms. Herseth. Thank you, Congressman Udall. I did have one
question.
You raised the issue, the Youpee issue, and the issue that
came up as well as in the DeMars case which involved the
Sisseton-Wahpeton Sioux tribe in South Dakota, and I am just
wondering are there any other parts of those holdings in those
cases or any other Supreme Court--relevant Supreme Court cases
that you feel the bill doesn't adequately address as you
provide here, suggesting an--in addition, a provision that
addresses the escheat issue?
Mr. Swimmer. There's nothing else in the bill that deals
directly with those two issues. The bill, I believe, does
address the root cause of those two issues by assuring that the
individual property rights are protected, as well as if there
is any purchase, that it is paid for.
The escheat provisions that were in the 1983 and '84
legislation were--they were the ones that were overturned by
the Court. There was some consideration that the escheat
provisions might be legal if they applied only to intestacy
instead of not allowing an individual to write a will, for
instance. But this bill doesn't acknowledge that, and it
requires that payment be made. And I think that the 5 percent
rule for highly fractionated heirship and allowing only a
single heir to inherit is the closest that one might come to
it, that only applies in intestacy. But I also believe that
we're well within the Supreme Court's guidelines on that in
this particular bill.
The Youpee and the DeMars cases, though, present us a
unique issue, and it is how to deal with subsequently, because
now we have those roughly 60,000 interests that were involved
in Youpee and Moore and Demars, and about 5- or 6,000 owners,
and we need to compensate those folks. We've already
transferred in many instances the property deeds to the tribe.
We'd rather not transfer them back. What we'd like to do is
compensate the people for the--what the Court has determined to
be a taking, and we need congressional authority to do that.
Ms. Herseth. Thank you. That's all I have.
The Chairman. The gentleman yields back his time.
Mr. Renzi.
Mr. Renzi. Thank you, Mr. Chairman.
Mr. Swimmer, thank you so much for coming by today. I had
the opportunity to work with my colleague from Utah Mr.
Matheson, and we were able to do a field hearing on Native
American housing issues up in the Navajo Nation recently. And
in the course of hearing some testimony, we learned that in
dealing with trust lands and in dealing with the ability of
trying to close escrow on trust lands, that the BIA has a 113-
year backlog. So while we're dealing with the reform of
fractionalization here, and the ability to have a clear pathway
toward ownership and eventually economic use, whether it be
residential or commercial, we still, once we have the
fractionalization problem or issue resolved hopefully through
this legislation, are going to have to then deal with this
backlog. You have got individuals who are Native Americans who
are trying to buy homes on trust land, and who are waiting
sometimes over 2 years for those closings to occur.
Now, I realize you've done a great job, and we've had
success in closing and gaining economic use out of fee simple
lands, but on trust lands we have got this 113-year backlog. Do
you think we should deal with that in this legislation, or is
there an ability to come back and look at some sort of reform
as it relates to privatization or contracting out the backlog
so that we can reduce that 2-1/2-year wait that some of our
Native Americans are having to deal with, even if they now gain
ownership or a path to ownership, or if they've gained the
ability of the banks to provide them with a mortgage?
Mr. Swimmer. I think when you speak of backlog, you're
referring to the title system that is slow, and being able to
get title reports, title--what we call title status reports so
that a mortgage company knows who owns a property and can put
the mortgages on it, or that HUD can deal with it.
This has been a problem that, in fact, has plagued the
Bureau and Indian owners for years. The problem is caused by an
antiquated title system that goes back 30, 35 years. That title
system is currently, as we speak, under replacement. There's an
investment, somewhere between 20 and 30 million, I understand
that, that is being put into a new title system that is now
being brought up in every title agency. We've got about eight
offices where they maintain title. It will completely--at least
our expectation is that it'll revolutionize where we are in
being able to issue title reports.
I am told by the Bureau that that system is to be fully
implemented and that backlog you talked about substantially
reduced by February or March of next year. They started this
implementation in December of '03. We were given a 15-month
period of time to get it fully installed across Indian country
and to bring the backlog current. And that backlog means
getting all of the title documents recorded that are waiting,
literally stacks of documents waiting to be recorded so that
accurate title status reports can be given. And I have tracked
that myself, and I do believe that they are on target for
making that deadline.
Mr. Renzi. Now, this is the new software that was
purchased. You're talking about the new technology and
software?
Mr. Swimmer. Yes.
Mr. Renzi. Well, I look forward to following up then maybe
working with you on some oversight as to what kind of successes
and accomplishments you come through with. We have got to get
down the 2-1/2-year wait.
Mr. Swimmer. Oh, absolutely.
Mr. Renzi. Thank you sir. Appreciate it.
Thank you, Mr. Chairman.
The Chairman. Mrs. Christensen.
Mrs. Christensen. Thank you, Mr. Chairman. I, too, want to
welcome our new colleague to the Committee.
I just have one question. Just looking through some of the
testimony that will follow yours, Mr. Swimmer, there was a--the
Department of the Interior was allowed to provide input into
the bill after the stated deadline for submission. And because
of that, the point of view that they put forward, as I
understand it, wasn't able to be addressed by the work group.
Could you--and also created an unfair advantage for Interior
versus everyone else who had to abide by a deadline. Would you
respond to that, because I won't have a chance to ask you after
the testimony is given?
Mr. Swimmer. Sure. I am not aware of all of the time lines
as far as the bill is concerned. It started--actually there was
a draft of a bill nearly 2 years ago, and Interior was not able
to support that particular draft from the Senate committee. It
then went back, and a lot of folks in Indian country did get
involved in it, and we were very pleased at that. We looked at
a draft that came out. We made comment on it, sent it back out,
and I would suggest that that probably occurred as many as
three to five times. We met, and I personally met, and our
congressional affairs folks met with the Senate committee, off
and on, during those times, and I personally was not aware of
any particular deadlines. In fact, I guess we worked on the
bill and sent comments, oh, probably as late as, you know, a
few weeks, maybe before it was introduced or marked up. I think
it might have gone through a couple of markups even.
My, and certainly the Administration's, effort was to be
supportive and to try to get a bill that would address the
problems that we face in probate land consolidation. And
regardless of, you know, when comments came in, I would hope
that everyone felt comfortable in submitting their comments
whenever they wanted to. I would not want to, you know, have a
deadline that said, well, if there's something that we really
feel is a problem here, that we shouldn't comment on it.
So I just--I'm just not aware that that occurred. And I
haven't read the testimony, so if there are issues that are in
there that someone has concern with, we'd be happy to talk
about that. But I would say that our suggestions in the
legislation were fairly minor. We were very pleased with the
progress as we had monitored the legislation and reviewed
various drafts, and we sent our comments out to the working
groups from time to time. So, you know, I just--we feel like
it's--it is a good bill and will help us meet these issues.
Mrs. Christensen. Thank you, Mr. Chairman.
The Chairman. Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman. And I also join with
my colleagues in welcoming our new colleague to the Committee.
Welcome.
Mr. Chairman, if there's no objection, I'd like to submit a
statement on the discussion today and fractionated land in
particular as it applies to the Gila River Indian community,
which is part of my district, and with that, I yield back.
The Chairman. Mr. Udall.
Mr. Udall of Colorado. Mr. Chairman, I want to welcome our
new colleague from South Dakota, and I want to thank Mr.
Swimmer for being here today.
At this time I don't have any additional questions, but I
would like to reserve the right to direct written questions to
the Department of the Interior as we have a further chance to
look over the legislation.
Mr. Udall of Colorado. If I can add one other comment, I
would like to thank you for continuing to pursue this. And I
hope this is maybe a small step in the right direction.
With that, Mr. Chairman, I'd yield back any time I have.
The Chairman. Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman. And I, too,
would like to offer my personal welcome to our new
distinguished member of our committee here from the great State
of South Dakota, Ms. Herseth, and look forward to working with
her in the coming weeks and months in our committee.
I also want to offer my personal welcome to Mr. Swimmer and
my apologies for not being here earlier to have heard your
testimony, but I have gone through some of the things that are
stated in your statement. I see a very close parallel of the
problems that we face not only with our Indian tribes. I say a
sense of parallel on this issue, I notice that it's been over
70 years. This is not a new issue. This problem has been
infesting the Indian tribes for how many years, and just now at
this point we've come to--certainly want to offer my
commendation to the Senator from Colorado, the Chairman of the
Indian Affairs Committee in the Senate, my good friend Senator
Campbell for this initiative, and I take it that that bill has
passed the Senate. It has the support of the Administration on
a bipartisan basis; am I correct on this, Mr. Swimmer?
Mr. Swimmer. Yes.
Mr. Faleomavaega. OK. I wanted to ask, does this also have
the support of the Indian Nations around the country?
Mr. Swimmer. As far as I know, it does. I believe that
there's been quite a bit of work done by various groups from
Indian country on the bill, and, of course, you're going to
hear from some of those people here soon.
Mr. Faleomavaega. Well, the bill is over 100 pages, and I'm
not--certainly not an expert in all these legalese terms and
referrals and all this and that. I make a reference to say this
is a parallel issue that I've attempted in the years past on
another problem that has been bugging me for the times, the 16
years that I have served on this committee, the regulations
that were established by the Department to do the procedures of
giving Federal recognition to tribes that apply. And, you know,
some of these tribes have taken 15 years. They can't even
afford the expense of paying attorneys and so-called experts in
making them so-called qualified for the seven criteria. And
unfortunately, when introducing the bills, I have not received
any support from the Administration.
The bottom line is you mentioned in your statement here
that the turnaround aspects of this proposed bill to amend the
law at least give the Indian people about a 2-year period to
give some sense of results or substance when they make the
probates and all this. And I want to mention to Mr. Swimmer
that it takes 15 years for some tribes to even to get the
advice and assistance of the Federal Recognition Division of
the Department of the Interior to do this. And I realize and
this is not the issue, but I'm saying I'm facing a parallel
issue where this has taken so long, and I certainly, Mr.
Chairman, I sincerely hope that if this has the bipartisan
support of the other body and certainly with the
Administration, I'm leaning very strongly toward supporting
this legislation. And, again, I want to thank Mr. Swimmer for
being here, and thank you, Mr. Chairman.
The Chairman. Thank you.
Are there any further questions of the witness?
Well, Mr. Swimmer, thank you very much. Obviously, this is
a complicated issue, and there may be further questions that
Members have that they would like to submit to the
Administration in writing, and if you could answer those in
writing so that they can be included in the hearing record.
Mr. Swimmer. Thank you.
The Chairman. Thank you very much for being here.
Mr. Swimmer. Thank you.
The Chairman. Panel two is up next, consisting of The
Honorable Charles Colombe, president of the Rosebud Sioux Tribe
of South Dakota; and The Honorable Maurice Lyons, Chairman of
the Morongo Band of Mission Indians.
Mr. Emery. Mr. Chairman, the Rosebud Sioux Tribe sent me
here to represent Charles Colombe. I'm tribal attorney for the
Rosebud Tribe. May I sit with my client?
The Chairman. Yes. You're more than welcome to sit with
him. The president will be testifying, but you're more than
welcome to sit with him. Please identify yourself for the
record.
Mr. Emery. Mr. Chairman, members of the Committee, for the
record my name is Steven Emery, and I'm tribal attorney for the
Rosebud Sioux Tribe of South Dakota.
The Chairman. Thank you very much, Mr. Emery.
[Witnesses sworn.]
The Chairman. Welcome to the Committee. It's nice to see
both you again. In fact, it's nice to see all three of you
again.
Before we begin, I would like to recognize Congresswoman
Herseth to introduce her constituent.
Ms. Herseth. Thank you, Mr. Chairman. Let me just first say
that I'm honored to be serving on this distinguished panel.
This is my first Resources Committee hearing, and I look
forward to working with the Chairman, with my colleagues,
Ranking Member Rahall, and working together on significant
issues that affect so many people in South Dakota.
As Congressman Rahall noted, Native Americans make up the
single largest minority population in my State, and this
committee has jurisdiction over issues of paramount importance
to Native peoples in South Dakota, from Indian health care to
trust reform to law enforcement issues. South Dakota tribal
leaders will have my ear and will have a voice on these issues
in this body.
Regarding the issue at hand, I would like to commend you,
Mr. Chairman, and others for bringing this important issue up
for a hearing today, and I would like to welcome my fellow
South Dakotans, President Charlie Colombe as well as Steven
Emery. And Charlie is the president of the Rosebud Sioux Tribe
in south central South Dakota, and he is a recognized expert on
the areas of tribal probate and land fractionation issues.
Ms. Herseth. I thank him for traveling to Washington for
this hearing, and commend his testimony to all of my colleagues
on the Committee. We will certainly benefit from his depth of
knowledge and experience on this important matter.
Thank you, Mr. Chairman. Thank you, Charlie.
The Chairman. Thank you.
Mr. Colombe, if you are ready, you can begin.
STATEMENT OF THE HON. CHARLES C. COLOMBE, PRESIDENT,
ROSEBUD SIOUX TRIBE, ROSEBUD, SOUTH DAKOTA
Mr. Colombe. Thank you, Mr. Chairman. Chairman Pombo,
Committee, I really appreciate the opportunity to be here
today. I think it is a great honor, and it is certainly a
privilege for me to speak to you today. I submitted written
testimony, and I would like to tee up, if you will, on my
background in Indian land. And, frankly, it has been a large
part of my adult life. And I can remember in 1943, when Rosebud
passed a land consolidation program, I was a very small boy and
one of my grandfathers was the President of the tribe when the
'34 Act came in.
This bill is unique in a couple of areas. Number one, it
fixes most if not all of the problems, and probably there is
always tweaking here or there that we could talk about. It
fixes many, many of the problems that are out there. And I
think, second, the importance, it has broad support by those
people in the Administration. And I certainly support Mr.
Swimmer's testimony. And it has support in Indian Country.
We recognize that Indian people most often do not do wills.
We look at that as some premonition that you are going to leave
tomorrow if you do a will today. So intestate is the rule out
there. This bill authorizes many ways to deal with that. It
also protects private ownership of those trust allotted
interests. And I would say on the Rosebud, going back to 1943,
that we have had a consolidation program. And that's called
Tribal Land Enterprise. And it in itself has been successful in
the end. However, the means don't always justify the end. And I
submitted information on that, that we will be talking about
later.
But moving forward, I worked in trust land issues. I did
title examination, curative work--which is preparing judges
orders--and administrative modifications for all of the trust
lands or a great majority of the trust lands in the Great Lakes
region, the Minneapolis area, what was the Aberdeen area, which
is now Great Plains, all of the Billings or Rocky Mountain
area. Did the Portland area, which is the Northwest tribes. And
then created the title plan for the State of California. So I
have a great deal of experience in running title in Indian
Country. I did this as a government contractor.
Additionally, I did 11 of the 19 pueblos in New Mexico. And
there are clouds on a lot of title, frankly. But I would say,
again, this bill addresses much of the issues. And I would hope
that it doesn't get held up. It is a broad, broad step in the
right direction. Again, I think it does much of what it is
attempting to accomplish.
Furthermore, Rosebud has the pilot program of the ILCA land
consolidation purchases. And I in 1971 to '79 served on our
tribal council. I ran our land consolidation program. I did
10,000 purchases in 1 year in running that program as Chairman
of the Natural Resource Committee. And, under the--under our
Indian Land Consolidation Act, at that point what we did--and
we had the first, the very first Farm Home Administration loan
in the Nation. We had a memorandum of agreement in 1970 that
authorized FMHA monies to be used to purchase Indian land. That
was the first in the Nation. And, again, our Tribal Land
Enterprise was first in the Nation and maybe the only one.
So we have a great deal of experience in these areas. What
I would like to do, Mr. Chairman, is give my broad support to
this. And, again, I want to thank all of those who are working
on this.
And there is other areas of concern, obviously, that this
doesn't address and it doesn't attempt to address, whether it
be the Youpee issues, and that goes back to the old--the first
Indian Land Consolidation Act that was signed by President
Reagan I believe January 12, 1983. And, frankly, I did not
support that. It was a taking, pure and simple.
But if I could, Chairman, if I can offer anything else, I
would rather answer questions specifically. And, again, I have
a broad background in this area, and it is very easy to support
what you folks are doing here today. And I commend the Senate
committee. Thank you. If you have any questions, I would
certainly try to answer those.
[The prepared statement of Mr. Colombe follows:]
Statement of The Honorable Charles C. Colombe, President,
Rosebud Sioux Tribe of South Dakota
Good morning, Committee and Chairman Pombo. My name is Charlie
Colombe and I am President of the Rosebud Sioux Tribe of South Dakota.
At Rosebud, we are descended from the Sicangu or Burnt Thigh Band of
the Titonwan or Prairie Dwelling Lakota. It is a privilege and an honor
to give testimony before the Committee on S. 1721, ``A bill to amend
the Indian Land Consolidation Act.''
As a preliminary matter, I would respectfully ask the Committee to
seek amendment of Section 7 of S. 1770 which authorizes appropriations.
Federal funding for any IIM or Trust claims paid in connection with any
historical accounting or internal restructuring required by trust
reform under the Cobell suit or tribal claims should be paid from the
United States' permanent judgment appropriation under 31 U.S.C.
Sec. 1304 and should not be paid or reimbursed from appropriations for
the Department of the Interior/Bureau of Indian Affairs. The Permanent
Judgment Fund should pay for the historic accounting, not current BIA
appropriations because it is not right for the victims of this terrible
mismanagement to be asked to forego services to pay for the accounting
which should have been due tribes and their members since 1887. If the
Cobell claims and the historic accounting are not paid from the said
Permanent Judgment Fund it is unlikely that the accounting will be
effected and that those historic claims will ever be paid.
I have attached an exhibit to my testimony which analyzes how
Rosebud Sioux Tribal members who have not received the benefits that
they ought to have received from the Tribal Land Enterprise (hereafter
``TLE'') since it was founded under Federal law in 1943. I offer this
to the Committee because the Rosebud Sioux Tribe intends to bring this
claim to the Committee in the near future and we will do our own
accounting to demonstrate to this Committee and to the United States
the breakdown in the United States' trust obligations to RST members.
In the decades that I have spent working on tribal land issues, I
have identified many issues that this bill remedies:
Indians usually do not make wills;
Indians dying intestate leads to the application of state
law when the BIA probates the intestate estates because tribes lack the
authority to probate trust property;
Most Indian Reorganization Act Era tribal constitutions
prohibit Tribes from probating trust assets; and
The Rosebud Constitution prevents the RST Courts from
probating trust property.
S. 1721 would allow far greater latitude for tribal court
jurisdiction by authorizing tribes to probate trust assets. Overall
this legislation is the best opportunity that tribes have had, in my
lengthy experience, to fix the fractionalization of trust lands. In
addition, it prevents trust lands from passing out of trust ownership
by allowing descendants of allottees to inherit trust land without
subjecting the lands to taxation and state jurisdiction.
Tribes throughout the United States have closely reviewed this
legislation in behalf of their members. Virtually all tribes favor the
enactment of S. 1721 because it offers tribes and their members the
chance to consolidate their land holdings while maintaining tribal
jurisdiction and tribal ownership of their lands. This is a truly
significant aspect of the legislation given the harsh treatment of
tribal jurisdiction and sovereignty by the Federal courts in recent
years.
Amending the Indian Land Consolidation Act to revise the
requirements for testamentary and non-testamentary disposition of
interests in trust, restricted lands, and personal property of an
Indian will end the unfair application of state law to Indian property.
In addition, tribes may now adopt their own probate codes to ensure
that their members will inherit trust property in a timely, culturally
appropriate manner.
S. 1721 repeals the limitation of any bequest of an interest in
trust, restricted land, or personal property to a decedent's Indian
spouse. The legislation retains permission for an Indian decedent to
will such interests to the tribe with jurisdiction over the land.
Importantly, the Bill adds permission for allottees to bequeath such
interests to the lineal descendants of the Indian making the will or to
any person who owns a pre-existing undivided trust or restricted
interest in the same parcel of land in trust or restricted status.
These aspects of the bill will slow the migration of trust lands to fee
status by making it easier for the allottees and holders of beneficial
interests in trust lands to bequeath their trust property to their
descendants and relatives who share undivided fractionated interests in
the same tracts of trust land.
S. 1721 regards a bequest of trust property as the bequest of the
interest in trust or restricted status, unless the language of the will
clearly shows that the person making the will planned to bequeath the
trust property as a fee interest without restrictions or the interest
bequeathed is a life estate. This Bill limits the order of the bequest
of an interest in trust or restricted land as a life estate or in fee
for an interest not bequeathed according to the general rule. Further,
S. 1721 allows the owner of interests in trust or restricted personal
property to bequeath such interests to any person or entity. Thus, it
will be the will of the owner of the property interest that decides the
disposition of the property, not state law or an administrative
formula.
When this legislation is enacted, where the maker of a will
bequeaths interests in the same parcel of trust or restricted lands to
more than one person, in the absence of express language in the will to
the contrary, the bequest will be presumed to create joint tenancy with
the right of survivorship in the property interests involved. The Bill
allows for the partition and purchase of highly fractionated Indian
land by eligible Indian tribes. This furthers the ability of tribes to
consolidate their land holdings, the ultimate purpose of the Indian
Land Consolidation Act (hereafter ``ILCA''). The Bill also sets forth a
mechanism allowing co-owners of trust or restricted interests in a
parcel of land to let surface leases of such a parcel without requiring
the Secretary of the Interior's (hereafter ``Secretary'') approval of
the lease.
S. 1721 declares that, after enactment, it may not be construed to
limit or otherwise affect the application of any Federal law requiring
the Secretary to approve mineral leases or other agreements for the
development of the mineral interest in trust or restricted land. The
Bill allows interests in a parcel of trust or restricted land in the
decedent's estate, under specified conditions, to be purchased at
probate consistent with the Bill. S. 1721 proscribes secretarial
approval of a tribal probate code that prevents the bequest of an
interest in trust or restricted land by an Indian lineal descendant of
the original allottee, or an Indian who is not a member of the tribe
with jurisdiction over the interest, unless it provides for the
renouncing of interests, the reservation of life estates, and payment
of fair market value.
The Act provides that authority otherwise available to a tribe to
acquire an interest in trust or restricted land bequeathed by the owner
to a non-Indian will not apply where the interest is part of a family
farm bequeathed to a member of the decedent's family, and the inheritor
agrees that the Indian tribe will have the opportunity to acquire the
interest for fair market value if it is offered for sale to a person or
entity that is not a family member of the landowner.
S. 1721 will make the fractional interest acquisition program a
permanent program. This means that tribes can preserve their
reservations and their authority over them--to the extent that trust
lands exist in their respective reservations. The Act sets forth
procedures for the sale of trust interests to Indian landowners. This
is an important clarification; now Indians will have notice of exactly
how to acquire interests in trust and restricted property. ILCA
mandates that the Secretary place a lien on all revenue accruing to an
fractional interest in trust land acquired under ILCA until the
Secretary receives payment in full to the Acquisition Fund of the
purchase price of that interest. This allows the Secretary to assist
tribes in the consolidation of fractionalized undivided interests in
trust lands by--in essence--providing the tribes interest free loans
because the BIA prepays the purchase price and over time the lease for
the tract repays the BIA/Secretary and the lien is lifted.
The Act allows the rules of intestate succession under the Indian
Land Consolidation Act or under a tribal probate code approved under
the Act or under regulations made pursuant to the said tribal probate
code to apply to fee patented lands. This is a major change because
previously tribes didn't have the authority to probate fee lands!
It is helpful to tribes that S. 1721 instructs the Secretary to
award grants to nonprofit entities who provide legal assistance
services to tribes, individual owners of interests in trust or
restricted lands, or Indian organizations under the Federal poverty
guidelines. Up to now, unless the Interior Solicitor requested that the
Justice Department represent tribes or the tribes paid the attorneys
then there was no legal assistance available to further tribal
interests in enhancing the tribal land base through purchase from
individual tribal members.
Under the Bill, the Secretary is required to notify each Indian
landowner of specific information concerning each tract of trust or
restricted land the landowner has an interest in. In the past,
individual landowners were frequently denied access to this important
information. This is a dramatic change from existing law and policy.
Nowhere in the BIA has there ever been assistance in planning or
creating private and/or family trusts concerning interests in trust or
restricted lands. Now, the Secretary is mandated to provide individuals
with such assistance!
S. 1721 provides that as a matter of law, that after 6 years an
undivided interest in a tract of trust or restricted land of a tribal
member is abandoned and subject to this Act. This is important because
currently heirs are required to obtain a judicial decree that a
relative is deceased before the BIA can take action concerning the
land. Of course, the Secretary must provide written notice to all of
the heirs before holding a hearing to legally decide who the heirs to
the trust property are. In addition, the Secretary must send notice
annual with a response form as well as a change of name/address form to
the putative owners of interests in trust or restricted land. This
protects allottees by notifying them of any changes in their trust
property interests the same year that the interests have changed.
For the foregoing reasons, on behalf of the Rosebud Sioux Tribe and
its members I ask that you support the enactment of S.1721. Thank you
for your consideration.
______
EXHIBIT A
ANALYSIS OF STEPS TO ACCOMPLISH LEGISLATIVE SETTLEMENT OF TLE
LITIGATION
I. HISTORICAL OVERVIEW OF TRIBAL LAND ENTERPRISES (TLE)
Organized in 1943 as subordinate corporation of Rosebud
Sioux Tribe
BIA retained direct oversight over land values,
certificate values and leasing practices
Concept to use TLE shares of stock (certificates) in lieu
of cash
Provide remedy for increasing fractionation of land
ownership and to consolidate land ownership
Develop land management plan for benefit of participating
tribal members
Provide for preservation and safeguarding the values of
individual ownership of land
Simplify land exchange process
TLE has consolidated land, but in doing so it has eroded
tribal and individual equity in land
Organized with concept to earn 4% dividend and accrue
increasing land value.
Example:
,-- ,
1943 investment 2003 value
$100 savings, 4% interest, compounded $1,073
semi-annually $ 329
$100 grazing land invested in TLE $7,900
$100 grazing land not put into TLE
(Allotted)
TLE owner actually ends up with $329
For each $100 invested in TLE in 1943, owner has suffered a loss of
$8,644
Note, for example, $100 invested in 1952--owner's loss would still be
$8,293
II. CAUSES OF THE PROBLEMS IN TLE
All land is not equal; but, Todd County grazing land is
appraised same as Gregory County grazing land. (USDA 2003 grazing land
average value, Gregory $354.00, Todd $196.00)
Since inception of TLE, land has not been transferred at
its true value.
By-laws not followed in valuing TLE certificates.
(Sec. 28) TLE owners are continually harmed by undervalued certificates
of interest.
TLE has a history of management problems that still
exist.
No defined policy on leasing. No definition of
application of ``Indian Preference'' so that some TLE owners,
directors, employees, Rosebud Sioux Tribe Council members and favorites
obtain cheap leases.
Individuals without connections get no leases, or must
bid much higher prices.
Cheap leases transferred in direct violation of Code of
Federal Regulations.
Indian preference leases are at expense of Indian land
owners.
TLE management continues to refuse to acknowledge or
address problems, and losses to owners continue.
III. EXAMPLES OF CURRENT MANAGEMENT PROBLEMS
Certificate value has no relationship to equity value of
TLE, i.e. current certificate value is $13.56-book value per
outstanding share is approximately $70
No earnings or increases in equity value are allocated or
accrued for shareholders
TLE management overhead expenses exceeds $600,000 per
year, an amount equal to average annual land purchases
Lease revenues are a fraction of market value, i.e. many
of the leases are at $6.50 an acre, average market value is $14.00 an
acre
Lessees profit by assigning lease rights, representing
income that should have been TLE's
Adjusting lease rates and overhead expense should more
than double TLE current average net earnings of $1,500,000
Shareholders have no effective voice in, or control over
management, as TLE operates in a manner to favor those in political or
management control
IV. ACTION PLAN
To attempt to avoid continuing extensive litigation involving all
existing and past certificate owners, or liquidation of TLE, the
Rosebud Sioux Tribal Council has passed a motion that they prefer to
have TLE seek a legislative-administrative solution for the benefit of
all past and present TLE owners, including the Rosebud Sioux Tribe. The
plaintiffs have currently acquiesced in that procedure.
Obtain review of all TLE certificate transactions, to
provide a means of identifying losses suffered by TLE owners.
Losses identified shall include individual and tribal
losses.
Review undertaken by competent certified public
accounting firm so that it has integrity to all parties, and to
Congress.
If possible, obtain a final verification from GAO.
Also use services of a certified land appraiser to help
determine damages.
Assess general damage claims from deficient leasing
practices and failure to comply with CFR requirements for approving and
filing sub-leases.
Pending completion of certificate review, commence
drafting proposed legislative solution.
Utilize services of U.S. House of Representatives
Committee on Resources and Senate Select Committee (Indians) to prepare
legislation in draft form.
Upon completion of the certificate review, finalize the
legislative proposal with application of damage recovery.
V. TIMELINE
June through August 15, 2004--Certificate review
completed and assess damages from management deficiencies.
September 1, 2004, final draft of proposed legislation,
including damage outline.
October 2004, final proposed legislation completed in
form acceptable to House Committee on Resources and Senate Select
Committee (Indians)
VI. CONCLUSION (REASONS THAT IMMEDIATE ACTION IS VITAL)
On paper, TLE looks like a successful Indian enterprise. TLE audits
disclose a net worth of over $42,000.000, with average net earnings
exceeding $1,500,000. A closer look creates a rather disturbing
picture. It is the picture of a company that has built a net worth at
the expense of its owners, rather than for its owners.
When through death, illness or other exigency, an owner
has to sell TLE certificates, the owner receives $13.56 for each
certificate (from 1997 through May 2004 it was $9.97). Those same
certificates have a book value of over $70.00. TLE receives the
windfall, at the expense of its owners.
Book value is only a portion of actual land value. TLE
management cannot even provide an accounting of how many acres are
under TLE management.
TLE has very seldom paid dividends, or returned any
benefit to its owners. Annual TLE earnings are not accounted for, and
are used in the manner determined by TLE management.
Any TLE owner who has the audacity to complain suffers
the consequences of management's unofficial blacklist.
TLE continues to lease land for below market value rates,
and redeem certificates at a fraction of their value
______
The Chairman. Thank you.
Chairman Lyons.
STATEMENT OF THE HON. MAURICE LYONS, CHAIRMAN,
MORONGO BAND OF CALIFORNIA, BANNING, CALIFORNIA
Mr. Lyons. Thank you, Chairman and Committee, for inviting
the Morongo Band of Mission Indians to provide testimony on S.
1721.
The Morongo Tribe has been actively involved working with
those drafting the legislation over the past few years. I have
testified in front of the Senate Indian Affairs Committee in
2002-2003 in an effort to get this bill passed. I come before
you today with the same intent.
The Morongo Reservation is located 17 miles west of Palm
Springs. Our tribal membership enrollment is 1,200. Our
reservation comprises approximately 33,000 acres of trust land,
of which 31,115 are held in trust for the tribe and 1,286 acres
are held in trust for allottees and heirs.
Provisions within the Indian Land Consolidation Act of 2000
prompted the Department to send out a series of notices to
individual tribal members alerting them to expect changes in
the rules of intestate succession and inheritance. These
provisions would constrain the passing of interests in trust
and restricted lands to non-Indians, and the notices had an
immediate detrimental impact on our tribe's ability to plan for
the future to manage the tribal lands affected and our tribal
members' ability to pass down to their children and
grandchildren the land.
While the Department has to date been willing to not
implement those amendments of the 2000 Act, we know that they
are not able to defer it forever. To this end, we encourage you
to act swiftly on this matter.
We at Morongo share the desire of Congress to preserve
trust status of existing allotments and other Indian lands. We
appreciate the Committee's hard work in 1999 and 2000 to strike
a deal between allottees and sovereign rights of interest of
tribal governments. We are now--however, we now recognize
unintended consequences of the 2000 Act have come about.
For example, because the 2000 Act defines Indian, the
Morongo Band is faced with having to revise its own membership
criteria in order to enable our enrolled members to pass their
interest in trust allotments to their children. Congress must
understand, we do not feel revising our membership is the
solution. The fact is that changing the membership is a
divisive matter for tribal governments and their members. We
should not be forced to amend our membership criteria in order
to protect the rights of our members' children to continue
having interest in family lands.
Under the--further, under the 2000 amendments to ILCA, in
an effort to prevent Indian lands from passing out of trust,
non-Indian heirs were allowed to receive a life estate on
Indian lands. Perceived as a substantial new restriction, this
provision actually reversed the effect, prompting many tribal
members to petition to have their lands taken out of trust to
protect the interests they made in the lands through
improvements.
S. 1721 includes the solution to the problem we face in
California. Specifically, the interplay between the revised
definition of Indian and the new definition of eligible heirs
will provide for anyone that owns an interest in trust land or
restricted land in the State of California to continue to
qualify as an Indian for the purpose of this act. As such, the
heirs of that individual, without respect to the membership and
qualifications of the Morongo Tribe, will be eligible to own
trust lands upon the death of the owner. These changes allow
the members of my family who no longer--who may no longer be
eligible for membership in the Morongo, but they are definitely
American Indians, to carry on the tradition of our family on
our lands.
Due to the unique history of reservations and rancherias in
California, this definition is highly warranted. Mr. Chairman,
as you know, many of the tribes which exist today in California
are cobbled together based on geographic proximity of native
people. For example, the Morongo Band of Mission Indians is
made up of people from descendents from Cahuilla, Chemehuevi,
Luiseno, Serrano, many, many others. There are people who live
in the same area combined into Morongo Reservation. The
situation is shared by many tribes located in California and is
the basis for a much needed definition of these native people
in California.
I thank you, Mr. Chairman, for letting me ramble on here.
Thank you.
[The prepared statement of Mr. Lyons follows:]
Statement of The Honorable Maurice Lyons, Chairman,
Morongo Band of Mission Indians
Thank you, Mr. Chairman, for inviting the Morongo Band of Mission
Indians to provide you with our testimony concerning S. 1721, the
American Indian Probate Reform Act of 2004, a bill to amend the Indian
Land Consolidation Act. The Morongo Tribe has been actively involved in
working with those drafting this legislation over the past several
years and I have testified before the Senate Committee on Indian
Affairs in 2002 and 2003 in an effort to get this bill passed. I come
before you today with the same intent.
As you might know, in 2002 Senator Ben Nighthorse Campbell,
Chairman of the Senate Committee on Indian Affairs asked the Department
of the Interior to delay implementation of certain provisions of the
Indian Land Consolidation Act Amendments of 2000 (the Act) pending
further Congressional review of concerns and confusion that has arisen
in Indian country about the consequences--both intended and possibly
unintended--of those amendments. To date, the Department appears to
have honored the Senator's request and we are thankful for their
willingness to do so.
As I have explained to members of the Senate, provisions within the
2000 Act prompted the Department to send out a series of notices to
individual tribal members alerting them of expected changes to the
rules of intestate succession and inheritance. These provisions would
constrain the passing of interests in trust and restricted land to non-
Indians and the notices had an immediate detrimental impact on our
tribe's ability to plan for the future and manage our tribal lands
effectively and our tribal members' ability to pass their land down to
their children and grandchildren.
While the Department has to date been willing to not implement the
amendments from the 2000 Act, we know that they are not able to defer
this action forever. To this end, we encourage you to act swiftly on
this matter.
The Morongo Reservation is located approximately 17 miles west of
Palm Springs. Our tribal membership enrollment is 1,200 and the
reservation comprises approximately 33,000 acres of trust land, of
which 31,115.47 acres are held in trust for the tribe, and 1,286.35
acres are held in trust for individual allottees or their heirs.
We at Morongo share the desire of Congress to preserve the trust
status of existing allotments and other Indian lands, and we appreciate
this Committee's hard work in 1999 and 2000 to strike a balance in the
Indian Land Consolidation Act Amendments of 2000 between the individual
property rights and interests of allottees and the sovereign rights and
interests of tribal governments. However, we now recognize unintended
consequences from this legislation have come about.
For example, because of the way that the 2000 Act now defines
``Indian,'' the Morongo Band is faced with having to revise its own
membership criteria in order to enable some of our enrolled members to
pass their interests in trust allotments to their own children.
Congress must understand that we do not feel revising our membership is
a solution. The fact is that change of membership is a very divisive
matter for tribal governments and their members. We should not be
forced to amend our membership criteria in order to protect the right
of our members' children to continue having interests in their family
lands.
Further, under the 2000 amendments to ILCA, in an effort to prevent
Indian lands from passing out of trust, non-Indian heirs were to be
allowed to receive a life estate in Indian lands. Perceived as a
substantial new restriction, this provision actually had the reverse
effect, prompting many tribal members to petition to have their lands
taken out of trust to protect the investments they made in the lands
through improvements.
S. 1721 includes a solution to the problem we face in California.
Specifically, the interplay between the revised definition of
``Indian'' and the new definition of ``eligible heirs'' will provide
for anyone that owns an interest in trust or restricted land in the
State of California to continue to qualify as an ``Indian'' for the
purpose of this Act. As such, the heirs of that individual, without
respect to membership qualifications in the Morongo Tribe, will be
eligible to own trust lands upon the death of the owner. These changes
will allow members of my family who may no longer be eligible for
membership in the Morongo Tribe--but are most definitely American
Indians--to carry on the traditions of our family on our lands.
Due to the unique history of reservations and rancherias in
California, this definition highly warranted. Mr. Chairman, as you
know, tribes which exist today were largely cobbled together based on
the geographic proximity of native people. For example, the Morongo
Band of Mission Indians is made up from people who descended from
Cahuilla, Chemehuevi, Luiseno, Serrano and many others. These people
all lived in the same area and where combined into the Morongo Indian
Reservation. This situation is shared by many of the tribes located in
California and is the basis for a much needed definition for those
native people who live California.
Mr. Chairman, thank you for your time and willingness to hear about
the concerns of the Morongo Band of Mission Indians.
______
The Chairman. Thank you, Mr. Chairman. I understand that
Mr. Emory will be available to answer any questions if any of
the members have questions specifically that they would like
him to answer.
President Colombe, it is nice to hear your testimony. I
didn't realize the extent of your background on this particular
issue. Maybe we can pull the entire committee together and you
could spend a couple of days trying to educate us so that we
understand what this bill does.
But I guess my first question to you is that would the--are
the Rosebud Sioux prepared to adopt a probate code of their own
if this bill were to pass?
Mr. Colombe. Mr. Chairman, I think the Rosebud Sioux would
be prepared to adopt a probate code. However, like most IRA
tribes, Indian Reorganization tribes, we are prohibited by our
current constitution from probating trust interests. So------
The Chairman. And how do we fix that?
Mr. Colombe. I think this bill opens the door for us to do
that.
The Chairman. So if the bill becomes law, you believe that
you will be able to do it?
Mr. Colombe. I believe it would be in our best interests to
do it, and I believe that the people would support that very
strongly.
The Chairman. Obviously with your experience on this, do
you have any feeling for how many other tribes would be in a
similar situation that they would adopt their own probate code?
Mr. Colombe. Mr. Chairman, I think if you look at the
fractional interests, in the Great Plains region we have
roughly 30 to 33 percent of all the fractional interests in the
United States. You go then to the Rocky Mountain region, which
us old guys call the Billings area, they have about the
identical amount. So 60-some percent of all the fractional
interests in the United States are in about 7 States there in
the Midwest. I believe that the vast majority of us in South
Dakota--we are all of Lakota, Dakota, Nakota descent. We all
speak the same language, if you will. Our friends to the west
in Montana, Wyoming, who have the equal amount, think a lot
like we do. We all have the same problems, it is very rural. On
the Rosebud Reservation, as an example, Chairman Pombo, there
is 6,100 of our tribal members who have fractional interests.
However, also on Rosebud there is 4,100 tribal members from the
Oglala Sioux Tribe that have interests on the Rosebud.
So we are so interconnected through land ownership that I
think, again, while I can't guarantee that everyone will adopt
a probate code, I think uniformly those tribes will find the
benefit of this bill.
The Chairman. And obviously you would be encouraging the
other tribal leaders to------
Mr. Colombe. Absolutely.
The Chairman.--to adopt one?
Mr. Colombe. Yes.
The Chairman. Let me ask you this. I am told that there are
very few Native Americans that have a will.
Mr. Colombe. That is true, sir. And like I said, it's more
of a cultural thing. We, as an example, seldom ever hear
someone say--I wouldn't say to a councilman: Now, if you died
tomorrow. I mean, it would be like whoa, he is sending me where
I don't want to be.
I think, Chairman, that we can work on processes to educate
our people in those areas. And I believe--Mr. Swimmer brought
up a deed process wherein--that is legal I think in all
States--that might be an answer to the lack of wills or dying
intestate.
The Chairman. Obviously that is a major problem. And in
listening to Mr. Swimmer's testimony and dealing with I believe
you said 45,000 unidentified folks that own an interest, but
they don't know where they are. I would rather have the
individual decide who their heir is, whether it is by their
cultural tradition or what have you, whoever their heir is; it
should be that individual that is making that decision. And if
we don't have a higher percentage of folks that have a will and
a process in place, then you allow the government to make that
decision. And I don't think any of us really want that.
So I do think that is an issue that maybe we can put our
heads together and figure out a way to deal with that.
I just have one more question I wanted to ask Chairman
Lyons. We have had the opportunity in the past to talk about
the Morongo's situation with their land ownership. Can you tell
me how many other tribes are in the same kind of situation that
you are in? Do you have a feeling in California for how many
are in the same situation?
Mr. Lyons. There is very few in our situation. Most of the
tribes in California are not allotted tribes. Ours--I think
there is maybe Agua Caliente and maybe just one or two up
north. But the rest are tribally assigned. So the tribes still
own the property. But ours is a unique situation.
And I am one of those that don't have a will and won't have
one. But I have taken care of that. I have deeded all of my
stuff. I have nothing. So I have nothing left, so I have taken
care of it. But it is a unique situation for Morongos,
especially, that this get passed and as soon as possible.
The Chairman. Well, I have had a chance to discuss that
with you in the past, and hopefully if we can get this
legislation through and onto the President's desk, it can help
to rectify some of the issues you are dealing with. But thank
you very much.
Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman.
I couldn't help when you were talking about cultural
differences to think about Italian Americans, which is my
ancestry, and they are just the opposite. You know, I remember
some of my ancestors actually had not only the plot but the
monument with the date when they were born and the dash, and
the only thing missing was the date that they died long before
they even, you know, 10 or 12 years before they died. There
really are differences.
I just wanted to ask the Chairman and the President. We
have talked about how land fractionation robs land of its value
and its usefulness. I am just wondering if either of you would
be able to describe how the land consolidation benefits the
tribe. In other words, are there plans to make use of
consolidated land? Will it spur economic development? You know,
maybe give us some examples of what we are trying to accomplish
is actually favorable and what your plans are and how you deal
when it is consolidated, if you could.
Mr. Lyons. Right on our reservation, on the corner where I
live, there is a 15-acre piece, and there must be 200 to 300
people in that. And what we are planning to do is when we get
that all back to the tribe, we are going to open up, put our
homes for the people that are moving back to the reservation
in--we will allot one-acre parcels out to them so they can
build a house there. If the Bureau ever gets the title search
done. We have over 200 people waiting for 2 years now for a
title search. The bank through the loan program won't do it
because the title search is not done.
But that is what we plan to do with it, is all of our
allotted land is almost used up so we have got to get that land
back into the tribe to give it back to our people.
Mr. Pallone. Thanks.
President Colombe, did you want to comment?
Mr. Colombe. Yes, sir. I think the first thing it does, it
restores land to tribal jurisdiction. And that in itself is a
giant problem in Sioux Country and all across the Great Plains
and Rocky Mountain region.
Second, it does allow for economic development because it
makes the land usable.
And, third, we have, since the Indian reorganization, had
the authority contained in the '34 Act for the government to
put monies into land consolidation purchases. This Act does
that. And, again, I think those questions that Mr. Swimmer
spoke to, it is a lot cheaper to buy the land than it is to
administer those small trust estates. And we need--we need as
we go along to work together on this. And, again, there is
many, many areas of concern that this addresses, someone said
100 pages. And obviously it is very complex. But I think,
again, the most important thing is it places that land under
tribal jurisdiction rather than having it float around, if you
will, under a situation where the tribe cannot pass a probate
code, where State codes are used, and it deals with the
inheritance of it and the purchase.
Mr. Pallone. You had mentioned President Colombe, you said
something in your statement about means don't justify the ends,
and you had submitted something about, you know, the way things
were going about--the way we were going about things. Was that
specific to Rosebud, or------
Mr. Colombe. Yes, sir. That is specific to Rosebud. Again,
since 1943, we have had a land consolidation program there, and
many thousands of our allottees have been harmed through that
program, and it is basically lack of oversight by the
government that allowed that to happen. We have also------
Mr. Pallone. Is that going to be changed with the bill that
we are considering or will that help?
Mr. Colombe. It will help in that we will have a new
consolidation program in place under the ILCA and we will be
able to clean up and do an accounting on those people who have
been harmed by the old program.
Mr. Pallone. OK. Thanks a lot.
Mr. Colombe. So it opens the door for us to operate a land
consolidation program, which we are currently doing under the
ILCA, and are continuing with our Tribal Land Enterprise.
Mr. Pallone. OK. Thanks.
Thanks, Mr. Chairman.
The Chairman. Mr. Renzi.
Mr. Renzi. Thank you, Mr. Chairman.
Welcome both, Mr. President, Mr. Chairman, thank you both
for coming today.
Mr. President, I wanted to kind of draw on your background
and your expertise for a moment and ask, when we talk about the
consolidation and we look at the element of forced sales, do
you anticipate that being a problem in the future of how we
implement the program?
Mr. Colombe. No, sir, I don't. I think that the forced
sales is, again, it is not like the Act of 1983, and it has
processes that I think protect the individual ownership
interests.
Mr. Renzi. Sir, following up on the Chairman's line of
questioning. When you talk about Rosebud having a code, a
probate code that you are ready to move forward with, and you
in your statement talk about the fact that, in a positive
manner, that you look forward to tribes being able to
individually adopt their own codes, do you see us coming back 5
years from now and recommending one model over another as it
relates to one set of probate code? Or will the patchwork be
able to accomplish--a patchwork across the Nation be able to
accomplish the ability to consolidate without leaving gaps or
clouds on the titles or the background investigations?
Mr. Colombe. I think this Act sets up the framework to work
within for tribes. Even without the adoption of their own code,
this authorizes a process that I think would be, most of us can
be very supportive of.
Mr. Renzi. OK. Mr. Chairman, I------
The Chairman. Would the gentleman yield for just a second?
Mr. Renzi. Yes, sir.
The Chairman. On his question, would it not be possible to
take, because of your experience--I mean, obviously you have
done this over the years--to take what you guys are doing and
kind of hold that up as a model for other tribes to look at?
And as we go through this in the future, being able to tell
other tribal leaders, look at what Rosebud Sioux have? I mean,
wouldn't that, I mean, I think Renzi is right with this. It
would make things a lot simpler if we had a model that fit
within the law and actually worked within the current system. I
think this is a real good idea to try to come up with something
like that.
Mr. Colombe. Chairman Pombo, sir, we fully intend--like I
said, we support this. And obviously there is other Indian land
issues out there. I can name some of those that are gigantic.
As an example, let me toss something out that this doesn't
address at all but is a big issue at Rosebud. We have had 1,400
plus HUD homes built there. 98 percent of those are built on
tribal land. Many, many of those were built in the '60s, '70s,
'80s and '90s and now are paid for. The Housing Authority is
issuing bills of sales to those houses; however, the vast
majority of those, 90-some percent, are built on tribal land.
The tribe is bound by statute that they cannot sell that land.
So suddenly you see the size of that problem. And we need to
take the ILCA program while we are in the process of buying
land for the fractional interests, we need to take some of
those fractional interests and allow individual Indian folks to
buy those and allow them to exchange those fractional interests
for a tract that their house is sitting on. Because think of
the fact that only a thousand of those homes--and if they were
only worth 50,000 apiece, they are paid for, but those people
don't have merchantable title. So we are going to use this
program--and this is across allotted Indian Country that this
happens. So we will use this as a tool to exchange land with
our members, and we can trade trust deed for trust deed and
they will truly end up with a merchantable title.
As an example there, if you had a thousand of those homes
worth 50,000 apiece and they were paid for, that would put $50
million in our economy that isn't there today.
So we not only support this--and there is other areas that
we will use this bill to help us in.
Mr. Renzi. Mr. Chairman, just one follow-up. Thank you,
sir.
Sir, I appreciate the insight and the depth of your
substance. Can you take that same description, apply it to
business site leasing as it relates to commercial economic
interests where, particularly like on the Navajo Reservation,
18 million acres, the largest Native American Indian
reservation in America, and we trying to go to BIA to get
approval for business site leasing. And, as the Chairman
pointed out, not only are we having the backlog that Mr.
Swimmer addressed as it relates to residential construction,
but we also have a backlog as it relates to commercial entities
who are willing to come to the Navajo Nation, let's say a Wal-
Mart or a Denny's restaurant or something that is going to
allow the Native Americans to spend their money on the
reservation, and allow that dollar to maximize itself and stay
on the reservation rather than going off the reservation and
providing jobs. And yet, when we look at finally consolidating
fractionalized interest, we are not able then to in a timely
manner get approval for a business site leasing so that those
economic interests will stay the course and build.
Can you help me understand that a little bit? Will there be
a benefit there on the commercial side?
Mr. Colombe. I think the great benefit, sir, is that we--as
I stated, we are working on an Indian land bill, if you will,
and we are all getting a much broader understanding of those
problems out there, and as I spoke about the housing issue at
Rosebud--and that is across the whole Midwest that this issue
is out there. People have paid for something, and now they
don't have title to it. That is a humongous issue. Isn't it?
Imagine buying a home and not owning it because it is attached
to a piece of land that can't be sold.
The commercial development has been a giant problem, and we
have only had three businesses on the Rosebud Indian
Reservation in the last 10 years that have grossed over a
million dollars a year by Indians. And, frankly, my family or
myself started all three of them.
We have other problems in those areas. I think there is,
there is some new regulations that are coming that are dealing
with--they are dealing with business leases. And, again, I
would say this is a first step.
Mr. Renzi. I don't want to take too much time. I just
wanted to point out to the listening audience that we can't
effectuate a change in Native American Indian housing, we can't
increase Native American Indian housing until we increase the
jobs and the earned income on the reservations; and we can't do
that until we have better business site leasing provisions. And
hopefully this is a first step, I think is what your point is.
Thanks, Mr. Chairman.
The Chairman. Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman, and I wanted to
thank President Colombe and Chairman Lyons for their testimony.
I wanted to ask you gentlemen if you knew how the Federal
Government institutionalized the definition of the word
``Indian,'' because the problem here is that this isn't just
for the Native Americans. This also has a very, very negative
and serious impact not only to the native Hawaiians and even to
my own people. And let me tell you, it was the U.S. Congress
that institutionalized the definition of an Indian. An Indian
is you have to be at least 50 percent blood quantum Indian to
be considered an Indian. And to me, it is a very racist and a
divisive not only policy, but this is what Congress enacted
years ago defining what an Indian is even today.
And Chairman Lyons, you indicated that the problem now of
defining what an Indian is and who is an heir to the very
issues that we are discussing today. Let's say that I am a
member of Morongo Tribe and I am 50 percent blood Morongo and
an Indian in that respect. And if I marry a non-Indian, what
happens to my heirs? Would they still be in compliance of
defining of what an Indian is?
Mr. Lyons. Under this act, yes. The heirs from that union
still will be defined as an Indian in this act.
Mr. Faleomavaega. And then in your tribal constitutions and
laws, both President Colombe and Chairman Lyons, the rights of
the tribal members--this is a concern that I have. Let's say
three or four generations down the future, what would be the
rights of the heirs of the members of this tribe who are of
less than 50 percent quantum and blood and so-called being
considered as an Indian? Will this bill protect the rights of
those who have less than 50 percent blood quantum?
Mr. Lyons. Yes.
Mr. Faleomavaega. And your understanding--and I would like
to know the latest in Indian Country. If now defining an Indian
you don't have to be 50 percent blood quantum to be considered
an Indian. Is that no longer the case among Native Americans?
Mr. Lyons. That is no longer the case.
Mr. Faleomavaega. Because this bothers me, because the
native Hawaiians are fighting among themselves right now simply
the Congress also enacted legislation to define what a native
Hawaiian was, and that was 50 percent to be considered a native
Hawaiian. And the same thing they did for my people, too, years
ago. So we have got some very serious issues on this.
But I just wanted to ask, is the new definition of Indian
according to Federal law, regulations, or policy, you don't
have to be 50 percent blood quantum to be considered an Indian?
Mr. Lyons. No, you don't.
Mr. Faleomavaega. So what is the new definition now to be
considered an Indian? Because I wanted to------
Mr. Lyons. It is ours--on our reservation it is according
to the role of, I forget what year it is, but--and having
Morongo blood. You just have got to have Morongo blood in you
to be a Morongo Indian.
Mr. Faleomavaega. Mr. Chairman.
Mr. Colombe. Sir, if you are not enrolled, then this
defines it.
Mr. Faleomavaega. Indian.
Mr. Colombe. An Indian. Which I think is something that we
all can support.
Mr. Faleomavaega. So it is fair. In other words, as long as
you are enrolled, whether are 1-10th or 1-18th, you are still
an Indian, a member of the tribe?
Mr. Colombe. And then if you are not enrolled, this defines
it.
Mr. Faleomavaega. If you are not enrolled, then you have to
be 50 percent blood quantum?
Mr. Colombe. No. Two degrees of consanguinity, which is the
great grandfather.
Mr. Faleomavaega. Let me share with you the absurdity of
this whole blood quantum thing that has unraveled even within
my own tribe--I say my own tribe, the Samoan Tribe. I don't
know if you have heard of my people. And we go to court in
terms of who will be the new chief if the members of the tribes
and the clan cannot decide, so the court makes a decision. And
one of the issues to be considered is the amount of blood
quantum that you have as a member of this clan that you are
going to be competing for the tribal chairmanship of that clan.
And as I said, the absurdity of it all is that, like today, I
am--four generations ago great great grandfather was a
paramount chief, so therefore I am only 1-18th blood quantum of
the member of the clan; but if I win the case tomorrow in
court, I am all of a sudden 100 percent paramount chief of that
clan simply because of the way that Congress had enacted the
law to determine what a Samoan was. And that is that you have
to be 50 percent blood quantum in order to be considered a
Samoan. And I was just very curious.
Now, under the proposed bill, will this in any way impact
the current problems we are having with the Indian Trust Fund
on all the collections of the lands and the mineral rights and
the situation that we are still not able to resolve, by the
way? Some estimates from the 2 billion to $10 billion that
Indian, the funds have not been properly--not only properly
held in trust by the Federal Government; but will this bill in
any way have a negative impact on the rights of our Native
American community that have assets or financial holdings under
the Indian Trust Fund?
Mr. Colombe. Sir, I think it will have a positive impact.
It will resolve many, many of those issues that are in Hodel.
And, again, that is why I think it has such broad support. It
has appealed to people who don't have the experience that I
have been fortunate to have.
Mr. Faleomavaega. Chairman Lyons?
Mr. Lyons. I agree with him. I totally agree with him, with
President Colombe.
Mr. Faleomavaega. Just one quick comment, Mr. Chairman. I
know my time is over. You mentioned earlier about housing. We
had developed a law to amend the--allow our veterans--I am a
Vietnam veteran. Because for years the tribal lands, homestead
lands among the Hawaiians and communal lands among Samoans, we
couldn't get loans from the lending--from banks, commercial
banks because of the status of our lands. And now I want to
note for the record that the Veterans Administration has given
a special program to allow our vets to receive loans to build
their homes on tribal lands even though they cannot be--you
know, you cannot sell or convey it in fee simple. And I thought
that this was a very positive result. And maybe it is something
that can be done also to give assistance to the Indian tribes.
Thank you, Mr. Chairman, and I thank the Chairman and the
President of the--it is just always an honor to have our
distinguished leaders from the Native American community appear
before the Committee. Thank you, Mr. Chairman.
The Chairman. Mr. Bishop.
Mr. Bishop. Thank you. I appreciate the comments you made
on this bill. You clarified some of the points to it. In every
bill that comes before us there has to be a tradeoff of winners
and losers. Can I just ask you, are there any tribes out there
of which you are aware that are opposed to anything that is
going on there because they see themselves as losers in this
process?
Mr. Lyons. I don't see any in California, to tell you the
truth. I have not heard of any in California that are opposing
it. None have come to me and told me, because they know I have
been working on this for quite some time. So I don't know of
any.
Mr. Colombe. Sir, I think it is the most significant piece
of land legislation--trust land legislation in my lifetime. And
I believe most tribes recognize it as being a very workable
document, and we also look at it as a process of education.
And, yes, we have other issues that this doesn't resolve, but
it opens the door. It is that first step. And I think there is
broad support. And I have heard different times--and it has had
a fair hearing. There is many, many people who have worked on
this. And I personally have been very involved in it since
actually 1971, in this process.
And, again, the first Act was signed by President Reagan
January 12, 1983, which it didn't have that support. That is
where the Youpee case came. But this, I know of no one. There
may be testimony that is written and otherwise that opposes
this. Frankly, I don't know where it is at.
Mr. Bishop. Then I have to congratulate you and the sender
for reaching that unanimity. Thank you for your time for being
here.
Thank you, Mr. Chairman.
The Chairman. Ms. Herseth.
Ms. Herseth. Thank you.
And, again thank you, President Colombe. And I want to
thank you again for being here and traveling from South Dakota.
I also want to thank Chairman Lyons for his testimony as well.
If I could just follow up from the line of questioning that
Chairman Pombo established at the outset. And we talked about
assuming the bipartisan support of the bill as we move forward,
assuming it becomes law. You pointed out that the Rosebud Sioux
Tribe constitution as well as other IRA tribes have provisions
prohibiting the courts, the tribal courts from probating. So
the first step would be, before whether it is the probate code
that the Rosebud Sioux Tribe may be considering, or as that may
become a model or any other model or uniform code that each
tribe would assume and would adopt, the first step would be to
amend the tribal constitution?
Mr. Colombe. Actually, this allows for a probate process
that is within the current system. What it would do basically
is we no longer have to follow the State probate code. We would
follow this code in essence.
Ms. Herseth. OK.
Mr. Colombe. If that is clear. Then later on, if we choose,
opt to doubt our own probate code, then we have to obviously
amend our own constitution and come forth with a probate code.
But in the interim this takes us out from under that State
probate code and this is a much better document than the State
would set forth.
Ms. Herseth. Thanks for clarifying that. And then I just
wanted to give you an opportunity, because of the depth of your
experience and expertise on these issues, President Colombe, in
addition to Congressman Pallone's question about the use of the
consolidated lands for economic development and other uses, and
then of course the question here as it relates to trust reform.
Are there any other benefits to this proposal as you have seen
based on the Rosebud Sioux Tribe's participation, the pilot
program, that you would want to elaborate on as it relates to
the large land based tribes in South Dakota and then throughout
the region, as you mentioned, with 60 percent comprised within
the 7 States predominantly in our region?
Mr. Colombe. Yes, there are. There is a provision in here
to provide legal services, which is a first. And, frankly, that
is a very important part of this bill. That is--you know, it is
put in there, and I don't think a lot of people will see the
value of that. But understand that many times there are no
legal services and no understanding. And it is such a complex
field of law, Indian land title is, that there is not a lot of
expertise there.
Ms. Herseth. Well, just to follow up from that then in
terms of the provisions as it relates to legal services. How
about for the tribal courts themselves in administering and
being involved in probate? Do you see other resources being
necessary in assisting the tribal court system in engaging now
under the provisions provided by the bill?
Mr. Colombe. I think the jury may still be out on that.
However, I would not recommend amending anything at this point.
I think it is so important to get legislation in place and then
build on that at a later date. And that is a--I think it is
very important that we understand that it does create property
rights. And most tribal codes do not have a process to protect
individual property rights. So that portion of it--again, it is
very complex, it is long. But there is--frankly, if I had
something--and I have been over this, I have had Mr. Emory and
another group of lawyers who I have worked with over the years,
some of them very astute in these areas, have reviewed this
with me, for me, and we support the bill. So I really
appreciate all those other bells and whistles that are in it.
Ms. Herseth. Very good. Thank you. I yield back. Thank you,
Mr. Chairman.
The Chairman. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman. I appreciated the
comments of our witnesses and those of the panel members, but I
have no specific questions.
The Chairman. Thank you.
Mrs. Christensen.
Mrs. Christensen. I have no questions, either, Mr.
Chairman.
The Chairman. Well, thank you very much. I want to thank
this panel for your testimony. It has been very informative and
very helpful for the Committee to have you. I appreciate both
of you traveling to be here and to help us to understand this
issue greater. Thank you very much.
Mr. Colombe. Thank you, Chairman and Committee. I am
extremely privileged to have been here today, and God be with
you.
The Chairman. Thank you.
Mr. Lyons. Thank you.
Mrs. Christensen. Mr. Chairman.
The Chairman. Ms. Christensen.
Mrs. Christensen. Thank you. I would like to just ask
unanimous consent to have the statement of Representative Raul
Grijalva and of Dale Kildee included in the record.
The Chairman. Without objection, so ordered.
[The prepared statement of Mr. Kildee follows:]
Statement of The Honorable Dale Kildee, a Representative in Congress
from the State of Michigan
Good morning, Mr. Chairman. Thank you for holding this hearing
today on such an important issue. The complex issue of fractionated
ownership of Indian lands is a result of federal policy designed to
break up tribal lands. Beginning with the passage of the 1887 General
Allotment Act, Congress began enacting laws requiring the allotment of
tribal land to individual Indians. Allotment laws provided 40-, 80-,
and 160-acre tracts to individual Indians. Congress stopped the
allotment process in 1934, after a loss of millions of acres of tribal
lands and hundreds of thousands of acres that were lost to taxes that
Indians did not know they owed.
Because of the allotment policy, Indian allottees face the complex
problem of owning fractionated interests in allotted land. Today, it is
common for hundreds of owners to hold an interest in one tract of land.
These owners are heirs of the original allotment holder whose land
can become more fractionated as the number of beneficiaries increases.
This means that hundreds of beneficiaries could own shares in income
derived from one tract of land.
While Congress has attempted to deal with land fractionation by
passing the Indian Land Consolidation Act and amendments to that Act,
problems still remain.
We gather today to hear testimony regarding Senator Campbell's bill
that once again attempts to deal with the issue of fractionated
interest in lands. I look forward to hearing today's testimony. Thank
you.
______
[The prepared statement of Mr. Grijalva follows:]
Statement of The Honorable Raul Grijalva, a Representative in Congress
from the State of Arizona
I would like to express my thanks for the prompt scheduling of this
hearing on S. 1721. Few issues are more complicated than issues
concerning allotments on Indian reservations. Also, we should never
lose sight of the fact that the allotting of Indian reservations was
opposed by both Indian tribes and their members. Often Indians could
only be induced to accept allotments under the threat that if they did
not accept the land it would be given to non-Indian settlers. This is
often exactly what happened. After land was allotted to individual
Indians the remaining land was declared to be ``surplus'' land and was
made available for only a fraction of its value.
As the Chairman is aware, the Indian Re-Organization of 1934 (IRA)
expressly repudiated the policy of allotting Indian reservations. It
also created a process for reversing the effect of the allotment
policy. For example, it prevented allotted land from being taken out of
trust status. Those Indian tribes that organized themselves under the
IRA entered into a contract with the federal government. I am sure we
all agree that such a contract cannot be changed by one side without
the approval of the other party to the contract. But in 1948 Congress
apparently tried to unilaterally amend that contract by allowing land
to be taken out of trust status.
Ironically, the effect of the 1948 law happens to fall hardest on
Indian tribes like the Gila River Indian Community (Community) that are
trying to working to combat the growing problem of land fractionation.
I have the pleasure of representing the Community. The Community is
working with the Department of the Interior to address fractionation,
for example as a participant in the pilot project to acquire
fractionated interests. S. 1721 would expand and strengthen this
important program. The Community has not limited itself to the use of
federal resources in this effort to address fractionation. As I
understand it, however, the Community must often decide between
acquiring lower value fractional interests in land or acquiring higher
value parcels that may be taken out of trust. The only rationale choice
is for the Community to acquire the higher value parcels of land. As a
result, the problem of fractionation continues to increase on the
Reservation, even as the Community tries to work with the federal
government to resolve this growing problem.
I know the Community worked very closely with the Senate sponsor of
this legislation, Senate Indian Affairs Committee Chairman Ben
Nighthorse Campbell, when this bill was considered in the other body.
The Community was very close to reaching a compromise on some
amendments to the bill. In fact, at the request of Senate Indian
Affairs Committee staff, the Community had begun to consult with the
staff of this Committee to discuss its proposed amendments. At this
juncture, Chairman Campbell perceived an opportunity to move the bill
to this body without any amendments. In a good faith effort to keep
this important legislation moving the Community did not object to
moving S. 1721 with the understanding that Senator Campbell would
assist the Community's effort to obtain the amendments it is seeking.
I applaud this cooperative attitude and I look forward to working
with the Community and the Chairman and Ranking Member of this
Committee to develop amendments that reflect the Community's string
desire to eliminate fractionation on its reservation lands and to
prevent the creating of a patchwork collection of allotted, trust, and
mixed ownership.
I thank the Chairman of this Committee for his assistance on this
important matter.
______
The Chairman. I would like to call up our next panel.
Marcella Giles, of the Indian Land Working Group, and Lisa
Oshiro, representing the California Indian Legal Services. If I
could just have you stand and raise your right hand.
[Witnesses sworn.]
The Chairman. Thank you very much. Let the record show they
both answered in the affirmative.
Welcome to the Committee. I want to thank you for your
patience and in waiting for this point.
Ms. Giles, if you are ready, we are going to begin with
you.
STATEMENT OF MARCELLA GILES, ESQ., MEMBER,
INDIAN LAND WORKING GROUP
Ms. Giles. Thank you. Thank you, Mr. Chairman, and thank
you, members of this committee. On behalf of the Indian Land
Working Group, I would like to thank you for the opportunity
and for this, to make statements at this hearing, and to
commend the Committee for its consideration of this very, very
important piece of legislation.
The Indian Land Working Group is represented in this piece
of legislation in a manner in which I think exceeds almost a
decade and a half of members of this association working toward
the end result that is contained in this legislation. For many
years, the association represents grassroots individual Indian
owners who face this problem day in, day out, every week, every
year, and trying to work with their tribal leadership, in
trying to work with the bureaucracy, also find what I think
Congressman Rahall said is very complex. And if the lawyers and
others find it complex, you can imagine how individual Indians
trying to make usable their land find the position and the
status that they are experiencing today.
In general, the Indian Land Working Group supports this
legislation. Many of the provisions represent many years of
hard work and trying to bring these issues to the forefront in
order to preserve their interests.
There are four particular provisions that I would like to
note for the Committee. The first one is in fact, as has been
discussed, is a comment that consolidation agreement during
probate. It is at this time during probate that many Indians
landowners have found themselves in probate, whether they have
visited with the ancestor or with the decedent and find
themselves in an intestate position, these consolidation
agreements are put into effect by a probate order, an order
from the probate court. That is a plus and an opportunity that
the association has tried to work with Indian landowners in
looking at some of the estate planning opportunities before
they get to probate, but particularly in this piece of
legislation that vehicle is provided.
There is also a change in the consent requirement for
leasing.
I would also like to state for the record that we do have a
small error, that the change that is reported in this
legislation is that 90 percent consent is now required if there
are five or less owners in a parcel, and I think an error
there, we had 5 percent.
A third part again which has been provided or talked about
is the probate code and legal assistance grants. This is where
our association has particularly been active in working with
tribal leadership and working with land associations that will
work with their tribal leadership in developing probate codes,
consulting with the tribal leadership, and providing assistance
in estate planning. Those legal assistance services grants
would be enormously important for Indian landowners to be able
to achieve some kind of usable land consolidation and working
together so that an estate plan can be put into effect. And,
also, to negotiate this probate complexity that everybody has
talked about.
Also, the family trust partnership corporation pilot
projects that are identified in this piece of legislation are
enormously important from the association's point of view. This
legislation allows for 30 projects to be put in place. And in
consultation with tribes and individual interests, or of
individual Indians, the Secretary will develop regulations,
guidelines, reporting requirements, and there will not be an
impairment of the secretarial authority by this action.
As in all consensus, there are some negatives that we are
aware that exist. The association disagrees with the term, as
the Congressman from Samoa noted, that any time there is a
sense that there is a determination about--with the definition
of Indian, there is a concern, and that concern has been noted
for the record. However, knowing that this is a bill that has
been developed with consensus, we are aware that the eligible
heir has--terminology has been drafted and is providing
protection in the sense that, for those who are going to be
outside of enrollment eligibility for their tribe can inherit
and are eligible to inherit for the two degrees from
consanguinity.
Another item that the association particularly would want
to point to is the life estate for the non-Indian spouse or for
the spouse as a life tenant. Under standard--generally standard
probate, there is a one-third life estate and a one-third of
revenue generated from the land. Here, I believe the life
tenant of the spouse receives 100 percent.
Other items are noted in our testimony, and we would be
willing to respond to those specifics. However, I will conclude
my statements this morning, and compliment the Committee again
for their consideration of this legislation. Thank you.
[The prepared statement of Ms. Giles follows:]
Statement of Marcella Giles, Esq., Member,
Indian Land Working Group
Mr. Chairman, and members of the Committee, on behalf of the Indian
Land Working Group, I would like to thank you for this opportunity to
testify on S. 1721, the Indian Probate Reform Act of 2004.
The Indian Land Working Group (ILWG) commends the Committee for
consideration of this important legislation. Although the ILWG does not
support this legislation in it's entirety, we support the intent and
many of the provisions that address inheritance, management and use
issues on allotted trust lands.
The ILWG is working to assure that lands remain in Indian
ownership, and that these lands are used and managed properly. With
this in mind, we would like to mention several provisions in S.1721
which are a positive change in addressing multiple ownership on trust
allotments.
Consolidation Agreements In Probate: During probate, the decision
maker may approve consolidation agreements involving exchanges and
gifts of property already owned by the parties or on the decedent's
inventory. Such agreements are made final by the probate order.
Interests subject to a consolidation agreement cannot be taken under a
probate purchase option in Section 207(p) which impacts interests that
are less than 5% of a tract.
Change in Consent requirement for Leasing: 90% (rather than 100%)
consent is required if there are 5% or less owners in a parcel.
Probate Code and Legal Assistance Grants: Grants may be given to
tribes, legal services and landowner groups (that are tax exempt) to
provide assistance to tribes, landowners, and Indian organizations to
develop tribal codes and to engage in estate planning
Family Trust/Partnership/Corporation Pilot Project: The goal is to
develop mechanisms for managing Indian lands held by multiple owners.
In consultation with tribes and individual Indians, the secretary will
develop up to thirty (30) pilot projects with regulations, guidelines,
reporting requirements and revocation/suspension provisions.
Secretarial authority is not impaired or diminished by this authority.
ADDITIONAL SPECIFIC COMMENTS CONCERNING S. 1721 ARE AS FOLLOWS:
1. The Indian Land Working Group opposes the definition changes
made in S. 1721 in response to input provided by the Department of the
Interior long after the stated deadline for submission of comments re
S. 1721. No other sector was permitted to input changes or allowed to
alter text subsequent to the deadline. Accordingly, a uniform standard
has not been applied to all participants placing the non-governmental
groups at a disadvantage by having their year-long processes nullified
sub rosa.
The result of the disparate treatment is that Interior has been
afforded a unilateral veto outside of but over work group processes on
central issues that informed important provisions of S. 1721 as agreed
upon by tribal representatives, legal service organizations, landowner
group representatives and others. Interior's demand that certain
categories of individuals not be entitled to the benefit of the term
``Indian'' (See Sec. 202) nullifies core work group assumptions about
who would be entitled to be called ``Indian'' and who could hold
property in trust.
The particulars of ILWG's concerns about the department's demanded
changes are set forth in a narrative entitled, ``Comments on Behalf of
the Indian Land Working Group Re: DOI's Proposed Changes to S. 1721.''
There is no valid justification for the department's failure to
have officially ``advocated'' its position timely or at such a point
that its views could be openly addressed by the work group. The
department not only knew of work group processes, at various times,
departmental personnel participated in them.
The net procedural effect of the department's position is to return
the definition of ``Indian'' issue to where it was prior to May 2003
before work group processes earnestly began for all tribes but those in
California. The department's position is even more restrictive than the
definition of ``Indian'' contained in the initial S. 550 draft
considered at the Albuquerque meeting of the work group which set the
stage for subsequent activities.
The substantive effect is to resurrect damaging structures (non-
Indians who hold land in trust) on the order of the previously-proposed
and vigorously-opposed ``non-Indian estate,'' ``Indian heirship
interest'' or ``passive trust interest'' which, like the 2% rule, would
impair land holder rights for the sole purpose of getting rid of
federal duties without fixing fractionation.
One need look no farther than at the Chinooks to see the impact of
the proposed system. The Chinooks experience restrictions but are not
afforded general privileges due to their status as Indians who are not
recognized but who nonetheless hold property in trust. The Chinooks are
in land purgatory.
By refusing to permit individuals who are bloodline descendants of
trust landowners to be called Indian, even those within the two degrees
it would allow to inherit, Interior advocates a radical and immediate
system of termination.
The concept of ``eligible heir'' simply creates Chinooks out of
those so classified casting in jeopardy the ultimate retention of the
land as a trust asset which in turn can impair tribal territorial
integrity.
The definition of Indian in the 2000 ILCA amendments fast tracked
the transfer of land interests to tribes by disqualifying owners'
immediate families from full intestate inheritance as Indians. It
deprives actual Indian landowners of the opportunity to benefit their
issue as Indians holding land in trust. A hybrid is created: non-
Indians who hold land in trust.
The effort to retain property in trust or restricted status while
declaring the owner's ``eligible heirs'' but not Indians violates the
department's well-documented position that ``...[T]he Federal trust
responsibility over allotted land or any fractional share thereof is
extinguished as to that interest immediately upon its acquisition by a
non-Indian.'' The bloodline descendants who are now classified as non-
Indian (and affected tribes) can expect to be confronted by intense
jurisdictional problems in the post-Oliphant and Montana Rule judicial
climate.
The effect is duplicated under the 1721's devise provisions which
permits the devise in trust to any ``Indian'' but allows other devisees
to take as life estates or in fee by express action. By disqualifying
landowner's immediate families from full inheritance in trust as
Indians, ordinary expectations are thwarted making it necessary for
actual Indian landowners to seek other avenues to benefit their
families fully. Such measures include taking land out of trust which is
destructive of tribal territorial integrity and jurisdiction. The
``eligible heirs'' are not as in the Lara case ``non-member Indians.''
Such individuals are not classified as Indian at all.
It is currently the informal practice in some BIA regions to sit on
applications for patents in fee for fractional interests or arbitrarily
to deny them approval. It has even been proposed, recently, by certain
departmental officials that legislation be sought prohibiting the
department from issuing patents for fractional interests.
If challenged legally, standard principles of the law of real
property and long- established Indian law principles would govern.
Interior's subjective practices would be invalidated as arbitrary and
capricious and an abuse of discretion because there is no objective
codified authority for what they do. Restraints on alienation are
generally disfavored in law. Such restraints as exist must be found in
the allotment patent or certificate. Superimposition of additional
restraints outside the organic documents is unlikely to pass legal
muster.
The department's radical insistence upon impairing the status of
lineal descendants is responsible for the landowner panic that followed
the enactment of the 2000 ILCA amendments. Its continued insistence
upon similar draconian definitions and limitations to lighten its load
will fuel further patent applications, general widespread opposition
and litigation. Trustees are not typically given the power to
unilaterally walk away from trust obligations, especially, after having
first made a mess of them.
Permitting inheritance in trust but prohibiting the individual who
inherits to be called Indian sets such heirs and the department up for
continuing legal problems, it is an incentive for equal protection
challenges by non-Indians who are treated differently than the
``eligible heirs'' and does little to advance the cause of coherent
land administration or prevent landowner flight to fee.
2. There are two instances of merger in the new changes to S.
1721: Sec. 207(a)(2)(C) and Sec. 207(a)(2)(D)(IV). The former is an
intestate inheritance provision; the latter, is a provision of the
single-heir rule. A tax exemption is a compensable interest. If
extinguished by any method, here merger of the lesser estate (the
beneficial interest) with the larger estate (the naked fee) thereby
collapsing the trust, should not the decedent's estate must be
compensated if a White Earth situation is to be avoided? While heirs
have only expectancies, the decedent or the estate should be entitled
to compensation for the elimination of a valuable protected property
right held by it.
3. Use of the inventory at the time of the heirship determination
as the sole basis for triggering application of the single-heir rule
can easily lead to overlapping ownership on the order of that now found
in the unrestored 2% interests.
It was acknowledged during the March 27 conference call that BIA is
behind in its posting. Posting, it was said ``should be caught up in
two years.'' We have only experience by which to measure assurances of
this type. In 1999, the BIA's probate backlog was to be eliminated in a
couple of years. Despite expensive outsourcing, doubling probate
manpower and the expenditure of huge sums, the backlog has more than
doubled. It is therefore prudent to consider what circumstances are (a
posting backlog) when considering this issue.
The circumstance that will present the problem is common. A probate
is held. The owners (e.g. three children entitled to an undivided 1/3
each of the estate) are determined in a formal decision issued by a
decision-maker. Once issued, the interests are deemed vested in the
heirs as of the date of the decedent's death. At the time of the
decision, all of the decedent's interests have not been posted to the
estate. This may result in a single-heir inheriting what appears to be
a less than 5% interest under Sec. 207(a)(2)(D)(i)-(iii).
In this example, had all interests previously inherited by the
decedent been properly posted, the amount would have exceeded the 5%
threshold and the rule would not have been applied. Vesting principles
entitle each of the three heirs to an undivided one-third of the estate
as of the date of death but the provisions of the single-heir rule
allow consideration only of the inventory at the time of the heirship
determination.
Most often, those who argue the position that ``there has to be a
cutoff point'' tend to think in terms of what they call de minimus
interests. By doing so, they overlook the fact that a small interest
involving a timber sale, a major regional shopping center in an upscale
part of a major metropolitan area or a producing mineral interest can
have significant value.
In the past, modifications under 43 CFR 4.272 ultimately would have
caught up and corrected the deficient inventory. However, by
restricting consideration to the ``decedent's estate inventory at the
time of the heirship determination,'' the usual corrective device is
overridden. Last in time, therefore wins through posting negligence
even though subsequent modifications show that a different disposition
was warranted.
Does this quirky system result in the single-heir taking what was
on the inventory and the additional interest when it is posted even
though the full amount is 5% or over? Or does the single-heir take only
what was listed on the inventory and the deprived true heir take the
additional interest when it comes into the estate?
One of two things must be done to fix the problems created by the
``inventory at the time of the heirship determination'' restriction.
Either eliminate the restriction or expressly make it subject to 43 CFR
4.272.
4. The single-heir provisions as they pertain to tribes in effect
give tribes no choice under the rule except who the single-heir
designate will be demonstrating paternalism not self-determination as
the overarching ILCA policy.
5. In Sec. 207, ILWG agrees with:
The changed language describing right of representation.
Prior S. 1721 language was legally and technically incorrect.
The joint tenancy devise presumption and its restriction
to post-certification wills.
The changes in the intestate succession sequence. Prior
S. 1712 language created a sequence without precedent in succession
law.
The changes in the lapsed gift language for wills. Prior
S. 1712 language was difficult to read and did not conform to time-
tested Indian will anti-lapse provisions (43 CFR 4.261)
The new renunciation language with ratification
provisions. The additions cure problems the ILWG previously reported to
departmental personnel arising from the Board of Indian Appeals'
decision in the Estate of Gus Four Eyes and similar cases. The
decisions were inconsistent with the majority of jurisdictions and at
variance with beneficial departmental practice which aided retention of
land in trust status and encouraged the use of disclaimers to prevent
fractionation.
The land consolidation agreement language in probate,
including the exemption of lands subject to consolidation agreements
from the operation of Sec. 207(p)(5)(A)(2).
6. In Sec. 207, The ILWG disagrees with:
The intestate provision that assigns a full life estate
with right to consume income in trust lands rather than a 1/2 life
estate when they are children by another marriage.
Contemporary life spans could deprive children by other
marriages of any benefit of inheritance in a parent's estate. Modern
uniform probate codes tend to establish shares based upon whether or
not the surviving spouse is the parent of all the children to address
this problem. (E.g. surviving spouse not parent of all the children
takes one half and the children share the other half.)
As written, the provision would entitle the spouse life-
tenant (if the decedent had issue) to 1/3 of the personal property on
hand at death and a 100% life estate in the land. Based upon standard
probate vesting rules, income derived from or associated with land
after the date of death (the vesting point for the transfer of rights
in the estate) goes to the person directed to receive the land under
the rules of intestate succession. Here the spouse is given a 100% life
estate in estate lands with the express right to consume income
(described as the right to commit waste). The remaindermen would
receive 2/3 of the cash on hand at death after payment of approved
claims and nothing for the duration of the life estate. This effect
appears not to be understood. He who has the rights to the real
property has the right to receive the income therefrom. A
remainderman's rights of use and benefit are deferred until the
expiration of the life estate.
The use of the concept of ``eligible heir'' in the
intestate provisions (207(a)) is to prevent individuals being called
Indians so that the department can avoid performance of management and
administrative duties. ILWG also opposes its use in other provisions
including but not limited to the single-heir provision, the
renunciation provisions and the purchase option in probate
authorization.
207(b)(2) as written. It contains extensive cross
references without narratively stating what particular provisions mean.
Typical users will be unable to ascertain the meaning of the full
provision. Laws that are not comprehensible are not usable by the
intended user population.
A forced spousal share inter alia may be based solely
upon the fact of marriage for a stated period in Sec.
207(k)(2)(A)(iii). Such a provision overrides the testamentary freedom
of the testator. It fails to take into account the fact that spousal
omission from a will can be a conscious choice in the act of testation,
that Indian lands are sole and separate property and that, among
certain tribes, spouses as a coordinated act, traditionally benefit
separate groups of lineal descendants rather than each other.
The rules of interpretation that were boiler plated out
of a high-end source without regard to application to the real world of
Indian estates and probate:
E.g.'s:
Sec. 207(i)(4) (birth out of wedlock) addresses a subject
governed by a statute in existence since 1891 (25 USC 371).
Sec. 207(j)(3)(G) executory and future interests like (j)(5)
life estates ``pur autre vie'' [for the life of another] are
beyond exotic from the standpoint of Indian probate.
Sec. 207(j)(4) (joint obliges) the department doesn't probate
secured debts so it would have no occasion to apply this
provision in a land context.
7. ILWG has questions and concerns about specific features of the
partition provision:
Persons within the pool of eligible purchasers are
required to pay costs or provide a bond to cover the costs of serving
and publishing notice. In cases where there is a lack of bids and the
Secretary steps in to purchase the interest for a tribe, should waiver
of costs be discretionary? If the applicant fails to pursue partition,
upon what basis does the Secretary step into the applicant's shoes on
behalf, possibly, of a third party, unless the object is to permit
selective targeting of property. Individuals or tribes with no
intention of follow through could initiate a partition against
particular heirs and set them up for forced sale as an act of reprisal
or political or personal enmity without expense or inconvenience to
themselves.
Given the limited notice the department (who lobbied for the
notice provisions) gives owners, the potential low-balling of values
obtainable under Sec. 215 valuations by geographic unit and the lack of
consequences to parties who trigger partitions with no consequence to
themselves if they decide to back out and the odd feature that there
can be grants and low cost loans to ``successful bidders'' (meaning
that individuals and tribes may be encouraged to trigger partition by
sale without having the finances in advance to consummate the
transaction, the entire process is suspect.
Sec. 205(d)(2)(D)(i)(III): geographic unit valuations
(Sec. 215) could easily be worked to eliminate all situations in which
owner consent would be required.
205(d)(2)(F)(i)(VII)and (H)(v): The right to a notice of
the final appraisal and the right to pursue an appeal on value or
partitionment is tied to receipt of comments from notices that are
based upon ``last known addresses,'' which are notoriously inaccurate,
with address inquiry required by the department only in instances in
which letters are returned undelivered with no requirement that efforts
to locate addresses be certified. Huge amounts of allotted land was
lost in Oklahoma by the use and mis-use of constructive notice
(publication). People were unaware that there property was the subject
of a partition proceeding. Repeat of this unfortunate experience should
not occur.
Separately, tribes can be the third party beneficiary of
partition proceedings in which there is no bid by eligible purchasers
but they are not required, when they have such data (p. 20), to provide
current addresses for notice purposes. There should be no prospect of
gain in instances of data withholding.
8. ILWG has no objection to the owner-managed provisions but has a
question regarding (g)(2). Does the phrase ``otherwise using such
interest in land'' for purposes of jurisdiction include trespassers?
[In (h)(1), the phrase ``subsequent descent'' should be changed to
``subsequent inheritance.'' ``Descent'' is a term that applies to
intestate succession.
9. Sec. 2212(b)(4): In connection with the mandate to minimize
administrative costs and elimination of duplicate administrative
proceedings, ILWG is informed that the special trustee has assigned a
particular individual the responsibility of developing non-APA
procedures to transfer property (funds and land) in lieu of regular
probate processes. It is ILWG's further understanding that public land
proceedings which often involve only permits and leases rather than
actual ownership interests in land are not the subject of similar
economies. The minimization effort, when combined with the elimination
of requirements of procedural regulation to carry out particular
provisions, appears to vest the department with ever greater unfettered
discretion that, at most, will be governed by ``manual'' provisions
which do not have the force and effect of law and are not subject to
the same oversight or protective features associated with regulations.
______
The Chairman. Thank you.
Ms. Oshiro.
STATEMENT OF LISA OSHIRO, DIRECTING ATTORNEY,
CALIFORNIA INDIAN LEGAL SERVICES
Ms. Oshiro. Good morning, Chairman Pombo and distinguished
members of the House Committee on Resources. On behalf of
California Indian Legal Services and the California Indian
community that we serve, I want to thank you for this
opportunity to speak with you on S. 1721, the American Indian
Probate Reform Act of 2004.
The issues addressed by the Indian Land Consolidation Act
and the proposed amendments in S. 1721 are very important to
preserve the Indian land base throughout Indian Country, and
especially to protect the very limited Indian land base in
California.
As Chairman Lyons had spoken to earlier, fractionation of
allotments is not as significant in California as it is
throughout the rest of Indian Country, but that is because
there weren't as many reservations in existence at the time
that the General Allotment Act was enacted. So you didn't have
a lot of reservations being allotted. That was in 1887.
In 1891, we had the Mission Indian Relief Act that created
some reservations for tribes in southern California, and the
rancherias that exist throughout northern and central
California today weren't created until much later, after the
allotment period had ended. So we don't have many of those, a
lot of allotment of reservation lands.
However, recognizing that there weren't many reservations,
there were revisions to the General Allotment Act that provided
for allotments on the public domain, and there were many
individuals who received public domain allotments. And
ironically, later, when an Indian agent was commissioned to
study the homeless Indians in California and establish a
rancheria system, those who held public domain allotments were
overlooked because they had lands and the Federal Government
did not establish a rancheria for their tribe. And that also
later led to that tribe not being included on the list of
federally recognized tribes.
So it is especially in relation to these public domain
allottees that the definition in the Indian Land Consolidation
Act has been very important.
The 2000 amendments, as has been alluded to, had created
quite a bit of panic throughout Indian Country. Many Indian
elders--when I first began in Indian Legal Services in 1996,
one of my first clients was an Indian elder who was very
concerned about being able to pass on her trust interests to
her children and grandchildren and have them pass it on to
successive generations, as this was a symbol of this Indian
legacy and how they had survived so many different periods that
had been aimed at really trying to terminate and assimilate
their peoples.
The definition that is contained in the proposed bill, we
look to the definition of Indian as it also interplays with the
definition of eligible heirs. And California Indian Legal
Services jumped on the opportunity to be very intimately
involved in drafting the language of the bill and negotiating
various provisions, working with the Indian Land Working Group,
the National Congress of American Indians, Indian tribes, and
other organizations, and having sessions with the Senate
Committee on Indian Affairs as well as BIA representatives to
try to strike a balance and address all of our issues and
concerns, and also take advantage of everyone's ideas,
resources, and experience in putting together provisions that
would slow fractionation, promote consolidation, and provide
various estate planning services and tools to individual
landowners, and I believe that this bill represents a lot of
that work.
We do recognize that there were continuing negotiations and
discussions, there was a markup in the Senate committee in
January, another markup in April because we were continuing to
have these discussions. And we have agreed within our informal
task force and in our discussions with Senator Campbell's staff
that this is a very, very important step for us to take, and we
would like to see S. 1721 pass during this session. However, we
will continue to work together within the task force, we hope
to continue to work with Congress and the Department of the
Interior to address the remaining outstanding issues, whether
it be additional technical amendments or other substantive
changes and enhancements to the bill.
So we commend this bill, we thank you for bringing it up
for a hearing rather quickly after passage in the Senate, and
we hope to continue to work with you to see its passage during
this 108th Congress.
Thank you.
[The prepared statement of Ms. Oshiro follows:]
Statement of Lisa C. Oshiro, Directing Attorney,
California Indian Legal Services
Chairman Pombo and distinguished members of the House Committee on
Resources, on behalf of California Indian Legal Services, I thank you
for this opportunity to address you on S. 1721, the American Indian
Probate Reform Act of 2004, and other proposed amendments to the Indian
Land Consolidation Act. The issues addressed by the Indian Land
Consolidation Act and the proposed amendments in S. 1721 are very
important to preserve the Indian land base throughout Indian Country
and especially the very limited Indian land base in California.
Introduction
California Indian Legal Services (CILS), a law firm devoted
exclusively to the representation of Indian people and Tribes, submits
these comments based upon the collective experience of the firm over a
period of thirty-seven years. CILS was incorporated in 1967 by public
interest attorneys and California Indian leaders. When it was created,
CILS became the first non-profit law firm in the history of the United
States devoted exclusively to representing the rights of Indian tribes
and individual Indians. Over the years, CILS has had remarkable
successes--ranging from the creation of the Native American Rights Fund
to cases before the Supreme Court, the Ninth Circuit, other federal
courts and state courts.
CILS has represented most of California's 107 federally recognized
tribes during its existence and has served as counsel in many
successful cases resulting in the restoration of improperly terminated
California Indian rancherias. CILS has also represented many California
Indian tribes in their legislative efforts, often successful, to
restore their rightful status as recognized tribes. In addition, CILS
has represented over 30,000 California Indians in matters such as
Indian status, land status, and probate. As general counsel to the
Advisory Council on California Indian Policy, CILS helped publish the
most comprehensive report on the history and status of California
Indians ever commissioned by the United States Congress. 1
Our historical role in California Indian affairs provides CILS with a
clear perspective on how the probate provisions in the 2000 amendments
to the Indian Land Consolidation Act would adversely impact California
Indians, as well as on how S. 1721 eliminates those adverse impacts and
would be beneficial for the California Indian community. Moreover,
because we have a long history of representing tribes and individuals,
CILS understands the sometimes competing nature of individual and
tribal interests, and what policies strike a reasonable balance between
such interests.
---------------------------------------------------------------------------
\1\ Congress commissioned exhaustive reports that detailed the
tragic history and its remaining effects on California Indians. See,
Advisory Council on California Indian Policy, Final Reports and
Recommendations to the Congress of the United States Pursuant to Public
Law 102-416, September 1997.
---------------------------------------------------------------------------
The Indian Land and Natural Resource Base in California
With 107 federally recognized tribes in California, one might
expect the Indian land base in California to be substantial. However,
the Indian land base in California is extremely small. The reservations
and rancherias under the jurisdiction of the Pacific Region Office
2 consist of approximately 400,000 acres of land held in
trust for the benefit of California Indian tribes. An additional 63,000
acres of public domain and reservation allotments are held in trust for
the benefit of individual California Indians. 3 By contrast,
the eighteen unratified treaties between the United States and
California Indian tribes would have reserved approximately 8.5 million
acres of Indian land in California. 4
---------------------------------------------------------------------------
\2\ This does not include the three reservations that straddle the
California/Arizona border, which are under the jurisdiction of the
Phoenix Area Office. Bureau of Indian Affairs, Sacramento Area Office,
``Trust Acreage--Summary, CY Ending December 31, 1996.''
\3\ Id.
\4\ See Flushman and Barbieri, Aboriginal Title: The Special Case
of California, 17 Pac. L.J. 390, 418 (1986) at 403-404.
---------------------------------------------------------------------------
Some federally recognized tribes in California have no tribal land
base whatsoever. 5 Many of the reservations and rancherias
in California are extremely small: most are less than 500 acres; 22 are
100 acres or less and, of these, 16 are 50 acres or less; seven are 20
acres or less; five are under 10 acres; and four are under five acres.
6 Only 11 California Indian tribes have a land base of over
10,000 acres. 7 This lack of land stems, at least in part,
from Congress' failure to ratify negotiated treaties, the termination
of California Indian tribes under the California Rancheria Act of 1958,
as amended, and their partial restoration. 8
---------------------------------------------------------------------------
\5\ See Table 1 to the ACCIP Economic Development Report.
\6\ Id.
\7\ The ACCIP Trust and Natural Resources Report, at pp. 11-12.
\8\ ``The ACCIP Historical Overview Report: The Special
Circumstances of California Indians,'' at p. 5,13; See, e.g., ``The
ACCIP Termination Report: The Continuing Destructive Effects of the
Termination Policy on California Indians.''
---------------------------------------------------------------------------
Effect on Indian Elders in California
California Indian elders are a remarkable group of survivors.
Beyond the ravages of the Mission Period and the Gold Rush era,
California Indians have survived the unrelenting antipathy, until
recent times, of the State of California to its native people, as well
as a federal government that seemed intent on terminating their status
or refusing to recognize their existence. Despite some of the poorest
treatment and the most sordid history native people in the United
States have ever experienced, California Indian elders have managed to
remain Indian, survive as members of communities they have kept alive
and vibrant against all odds, and have kept almost one-half million
acres of individual and tribal lands in trust. California Indian elders
find themselves once again fighting to maintain their existence as
Indians and fighting to keep their precious limited land base.
The California Indian community needs S. 1721 enacted into law
rather than allowing the probate code and related provisions of the
2000 amendments to the Indian Land Consolidation Act to become
effective. Serving many Tribes and elders, CILS is in a unique position
to gauge the effect of the 2000 amendments on the California Indian
elder population and we regret to report that the uncertainty
occasioned by the 2000 amendments to the Indian Land Consolidation Act
has created great distress among California Indian elders. No other
recently enacted piece of federal legislation has caused as much
anguish and fear among the American Indian community, especially our
elders.
Since the passage of the 2000 amendments to the Indian Land
Consolidation Act, Indian elders in California who possess interests in
trust allotments have been under significant stress and discomfort--
because the definition of ``Indian'' and limitations in the probate
provisions of the 2000 amendments would have the effect of preventing
them from leaving their lands to many of their children, grandchildren,
and great-grandchildren in trust.
The 2000 amendments changed the definition of ``Indian'' to mean:
``any person who is a member of any Indian tribe or is eligible
to become a member of any Indian tribe, or any person who has
been found to meet the definition of 'Indian' under a provision
of Federal law if the Secretary determines that using such
law's definition of Indian is consistent with the purposes of
this chapter.''
The above definition is especially troubling for current owners of
off-reservation trust and restricted lands in California, generally
public domain allotments, who are not members of federally recognized
tribes, but are members of tribes which were terminated and are
undertaking efforts to become restored; were previously recognized but
not included on the Part 83 list of federally recognized tribes due to
administrative oversight; or have petitioned for recognition and have
either been waiting for many years on the ready list or are in other
stages of processing their petitions for federal recognition with very
limited resources.
While the definition of ``Indian'' in the 2000 amendments does not
limit that term to members of any ``federally recognized'' tribe, but
rather any ``Indian tribe'' which is more broadly defined to mean:
``any Indian tribe, band, group, pueblo, or community for
which, or for the members of which, the United States holds
lands in trust;''
CILS has received many frantic calls from elders holding public
domain allotments who were told by the Bureau of Indian Affairs
following the passage of the 2000 amendments that their allotments
would no longer be held in trust once the 2000 amendments became
effective. Thus, while we would argue that these unrecognized tribes
are ``Indian communities for whose members the United States holds
lands in trust,'' there is apparent disagreement over such
interpretation. There has also been a great amount of uncertainty about
which limited definitions the Secretary would incorporate under the
latter half of the 2000 definition of ``Indian.''
The proposed definitions of ``Indian'' and ``eligible heirs'' in S.
1721 would provide both the Indian community and the Department of the
Interior with greater certainty of who would qualify to hold and
inherit interests in trust and restricted lands and would provide many
California Indian elders with greater security in passing their
interests to their lineal descendants in trust or restricted status.
Proposed S. 1721 Referred to the House Committee on Resources
Since its inception, CILS' number one priority, as identified by
the California Indian community, has been the preservation and
enhancement of the Indian land base in California. This priority has
led CILS to undertake significant efforts to ensure that some of the
amendments to the Indian Land Consolidation Act enacted in 2000 be
repealed or modified. To that end, CILS has worked closely with the
Senate Committee on Indian Affairs since the 2nd Session of the 107th
Congress, on S. 1721's predecessor bill, S. 1340; and CILS has served
as coordinators, along with organizations such as the Indian Land
Working Group and the National Congress of American Indians, for an
informal S. 1721 Task Force. The S. 1721 Task Force, a coalition
representing tribal and individual Indian interests, has sought to
fashion a fair and effective substitute bill in S. 1721 which balances
the needs of individual landowners, Indian tribes, and the Department
of the Interior.
CILS has assisted in coordinating numerous meetings, drafting
sessions, discussion groups, community education forums and briefings.
As a result of this significant effort by the national Indian
community, the S. 1721 Task Force drafted and submitted a proposed
substitute bill. Many of those provisions have made it into the current
version of the bill with some provisions vastly improved through
continued discussions and revisions and other provisions revised in
attempts to strike a balance among the interests of Indian tribes,
individual Indian landowners and the Department of the Interior.
There are times when we face what appear to be almost
insurmountable challenges. Indian land fractionation has presented many
problems and significant challenges since the 1930s. Such challenges
often require communities to come together and aggressively take on
those challenges by making tough decisions which reflect a great deal
of deliberation and compromise. Everyone agrees that the current level
of fractionation of trust and restricted lands, and the associated
management of the fractionated interests, pose massive problems for the
owners of such interests (including Indian tribes), the Indian tribes
with jurisdiction over such interests, and the Department of the
Interior. S. 1721 has provided Indian Country with an opportunity for
everyone to be a part of a solution which prevents further loss of
trust and restricted lands, promotes the consolidation of fractionated
interests in trust and restricted lands so that such lands and their
resources may be protected and/or put to productive use for housing,
schools, health clinics, cultural centers, economic development, and
other community purposes. S. 1721 attempts to do all of these things
while also respecting and protecting the rights and interests of
individual landowners, and preserving and promoting the jurisdiction
and sovereignty of Indian tribes.
The current version of S. 1721 reflects hundreds of hours of
drafting, discussions and negotiations and an effort to bring together
the collective knowledge, experience, resources, and vision of
individual owners of trust and restricted interests, Indian tribes,
tribal staff, consultants and advocates, Indian organizations,
Congressional members and staff, and DOI officials and staff to provide
solutions with immediate and long-term benefits throughout Indian
Country. S. 1721 proposes important land consolidation measures which
we would be happy to discuss separately in greater detail. However, the
bill's probate code and related provisions were the focus of the
California Indian community and thus CILS.
The centerpiece of S. 1721 is a more easily understood uniform
federal probate code and its critical revision of the definition of
``Indian'' and addition of the definition of ``eligible heirs.'' The
proposed definition of ``Indian'' would includes members and those
eligible for membership in any Indian tribe and would also grandfather
in all current owners of interests in trust or restricted lands as of
the date of the enactment. The proposed definition of ``eligible
heirs'' would include all Indians as well as their lineal descendants
within two degrees of consanguinity. For Indian Country in general,
these definitions working together would allow families to protect and
preserve their trust and restricted lands for at least the current and
next two generations while working together with their tribes to
determine long-term plans and solutions for maintaining the trust and
restricted status of those lands.
Due to the unique and special circumstances in California which are
highlighted by the Advisory Council on California Indian Policy
Reports, the proposed definition of ``Indian'' also includes a
provision specifically applicable to the inheritance and ownership of
trust and restricted lands in the State of California, providing for
the continuing qualification of such owners as ``Indian'' for those
purposes. Together with the proposed definition of ``eligible heirs,''
successive generations of lineal descendants may continue to inherit
and own interests in the limited trust and restricted lands in
California.
These revisions and improvements to the uniform federal probate
code will not slow fractionation or facilitate consolidation without
appropriate estate planning and will drafting assistance. Thus, S. 1721
proposes solutions to assist the Department of the Interior in
encouraging estate planning throughout Indian Country through the
assistance of tribal governments, Indian landowner organizations and
Indian legal services programs. Indian families would be provided with
more estate planning tools and services so that they may better manage
their families' trust and restricted lands.
California Indian elders deserve the comfort and the certainty that
their precious trust lands will remain in their families and will be
passed on to future generations. Moreover, they deserve the right to
live out their lives secure in the knowledge that, whether by will or
by intestate succession, their lands will remain protected and in trust
status. We therefore urge the House Committee on Resources to act
quickly during this 108th Congress and restore confidence and certainty
to the trust probate process.
______
The Chairman. Thank you, Ms. Oshiro.
Just to begin with you, if I may. It is my understanding
that the majority of tribes, if not all of the California
tribes, are in support of the legislation as it is currently
written, even though you may have concerns about different
parts of it. But in general, most of the tribes are in favor of
it.
Ms. Oshiro. Yes, that is correct, and California Indian
Legal Services is strongly in support of the bill. The
definition of Indian does contain a California specific
provision that is beneficial to both federally recognized
tribes as well as members of unrecognized tribes throughout
California.
The Chairman. Well, thank you very much.
Ms. Giles, I know that in your written testimony there were
certain provisions in the bill that you had concerns over.
Ms. Giles. Yes, sir.
The Chairman. But would it be safe to say that the working
group generally supports the legislation?
The Chairman. The--when it comes to the specific issues
that you've brought up, and I know I've been working with staff
to try to address the issues that you brought up, that you
submitted in your testimony, and I guess my question to you
would be, would you prefer that the legislation pass and be
signed into law as is, quickly? Because we have a lot of
concerns that, if there are amendments made to the legislation
as it's been worked out, that, in one sense, we kind of go back
to square one and begin the consultation process again and
making sure everybody is OK with whatever changes we make, and
this ends up slipping a year or two off into the future. And I
know there are a lot of people that have concerns with the
further delay of this legislation.
Ms. Giles. Yes, sir. The Indian Land Working Group does
not--has developed within its own association a consensus that
there should not be a delay in the passage, the quick passage
of this legislation. It is understandable that there needs to
be consensus made for the passage of this legislation, and the
four particular provisions that I noted in the testimony today
have been near and dear to the heart of the Indian Land Working
Group.
As I said, over a decade and a half, members of this
association have worked intimately at the grass roots level
with individual Indians who are totally impacted by this type
of legislation. And they support those particular four
provisions wholeheartedly. And the sense from the association
is that the passage is a positive from the many, many years of
work that this association has, in fact, in some times,
initiated themselves.
The Chairman. Well, I will tell you, the both of you, that
if we can move this and move it quickly and get it signed into
law, I'm sure there will come the opportunity to have technical
amendments, if necessary, in the future. And, as you know,
right now there seems to be very broad and general consensus
that this is the right way to go, and we need to move forward
with that legislation.
But if there are issues that arise and we are successful in
getting it signed into law, we do have to make technical
amendments to it or we have to take another look at it. We will
take advantage of that in the future and try to rectify any
issues that come up because of some oversight that occurred or
some issue that was identified at this hearing.
But thank you, thank both of you very much for your
testimony. Again, thank you for your patience in waiting and in
being part of the panel.
If there are any further discussions or any further
questions that Members of the Committee have, they will be
submitted to you in writing and if you can answer those in
writing so that they can be included as part of the hearing
record.
Thank you very much. I thank all of the witnesses for their
valuable testimony and my fellow Members of the Committee for
their questions.
If there is no further business, I, again, thank the
Members and the Committee and our witnesses.
The Committee now stands adjourned.
[Whereupon, at 12:02 p.m., the Committee was adjourned.]