[Senate Hearing 108-81]
[From the U.S. Government Publishing Office]
S. Hrg. 108-81
INDIAN LAND CONSOLIDATION ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
S. 550
TO AMEND INDIAN LAND CONSOLIDATION ACT TO IMPROVE PROVISIONS RELATING
TO PROBATE OF TRUST AND RESTRICTED LAND
__________
MAY 7, 2003
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
87-046 PDF
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
S. 550, text of.................................................. 2
Statements:
Berrey, John, chairman, Quapaw Tribal Business Committee,
Quapaw, OK................................................. 68
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Harris, Robert, Eastern Shoshone Tribe, Fort Washakie, WY.... 72
Lords, D. Jeff, acting deputy special trustee, Trust
Accountability, Office of the Special Trustee, Department
of the Interior, Washington, DC............................ 59
Nordwall, Wayne, director, Bureau of Indian Affairs Western
Region, Department of the Interior, Washington, DC......... 59
O'Neal, Ben, tribal council member, Eastern Shoshone Tribe,
Fort Washakie, WY.......................................... 72
Stainbrook, Cris, executive director, Indian Land Tenure
Foundation, Little Canada, MN.............................. 74
Thomas, Hon. Craig, U.S. Senator from Wyoming................ 59
Willit, Judge Sally, Indian Land Working Group, Albuquerque,
NM......................................................... 77
Appendix
Prepared statements:
Berrey, John................................................. 89
InterTribal Monitoring Association........................... 93
Nordwall, Wayne.............................................. 87
Nunez, Austin, chairman, Indian Land Working Group (with
attachments)............................................... 105
O'Neal, Ben.................................................. 91
Stainbrook, Cris (with attachments).......................... 95
INDIAN LAND CONSOLIDATION ACT
----------
WEDNESDAY, MAY 7, 2003
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 10:03 a.m. in
room 485, Russell Senate Building, the Hon. Ben Nighthorse
Campbell (chairman of the committee) presiding.
Present: Senators Campbell, Inouye, Thomas, and Craig.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. The Committee on Indian Affairs will be in
session.
Welcome to the committee's hearing on the American Indian
Probate Reform Act of 2003. I reintroduced the bill in March,
joined by my colleague and friend, Senator Inouye.
For 200 years, the pendulum of Indian policy has swung from
one extreme to another. Even today, one of the most damaging
legacies of the Allotment Era of the 1800's is the continued
fractionation of Indian lands. The allotment policy was
designed to break up the tribal land mass and turn Indians into
farmers. It resulted in millions of acres of Indian land lost
to their Indian owners.
By virtue of Indian probate rules and the steady march of
time, millions of more acres have passed from the original
Indian allottees to thousands of descendants with undivided and
economically useless interests in the land. The fractionation
problem is at the heart of the ongoing trust reform efforts.
There are bright spots, however. The Department's land
consolidation pilot has resulted in thousands of small parcels
being returned to tribal ownership through a voluntary purchase
program. I want all the people concerned to know that this
committee will work on this measure for as long as it takes to
get it right. In fact, that original pilot program was
authorized by this committee. I believe the core concepts are
solid. Hopefully the witnesses will offer some suggestions of
how to make a bill that I think is a good bill, a better bill.
[Text of S. 550 follows:]
The Chairman. Senator Thomas, did you have an opening
statement?
STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING
Senator Thomas. Thank you, Mr. Chairman. I want to thank
you for holding this hearing. Certainly it is one of the most
important things to us in Wyoming. Last year, the Eastern
Shoshone General Council created a working group. Ben O'Neal
was a part of that group and was elected to the Council. He is
here to testify. We are very pleased about that.
Obviously it is important for us to deal with this issue.
Individual land owners in Wyoming are concerned about the
future and how they are going to go with their families.
Without doing something, it is very limited in what we can do
with the States.
I know you have worked long and hard on this, Mr. Chairman.
I want to join with you in seeking to find a solution. We did
not get it done last year. We need to work on it this year.
Thank you.
The Chairman. Thank you. With that, we will go ahead and
start with our first witness, Wayne Nordwall. He will be
accompanied by D. Jeff Lords.
Mr. Nordwall, let me ask you. Are you related to the
Nordwalls around Reno somewhere? Adam Nordwall and that family?
Mr. Nordwall. Yes, Mr. Chairman; he is my uncle.
The Chairman. He is a good friend of mine. I have not seen
him for years. We used to pow wow together a long time ago, 25
or 30 years ago.
Go ahead, Mr. Nordwall.
STATEMENT OF WAYNE NORDWALL, DIRECTOR FOR THE BUREAU OF INDIAN
AFFAIRS WESTERN REGION, DEPARTMENT OF THE INTERIOR, WASHINGTON,
DC, ACCOMPANIED BY D. JEFF LORDS, ACTING DEPUTY SPECIAL
TRUSTEE, TRUST ACCOUNTABILITY, OFFICE OF THE SPECIAL TRUSTEE
Mr. Nordwall. Thank you, Mr. Chairman.
I would like to submit our testimony for the record.
The Chairman. Without objection, all written testimony will
be included. You can divert from that if you would like.
[Prepared statement of Wayne Nordwall appears in appendix.]
Mr. Nordwall. Rather than read from that or deal with it, I
made some notes last night to talk about some of the general
issues that you just discussed.
The Chairman. That will be fine.
Mr. Nordwall. Probably one of the single most important
measures pending in the Department of the Interior right now is
trust reform. A key to getting trust reform accomplished is
resolving this fractionated heirship issue.
Without some sort of a resolution, any system that we could
create in order to deal with these issues in the short term
probably will not last very long because fractionation would
rapidly outpace almost anything we could put in place.
We support generally the concepts that are in S. 550.
However, after having reviewed the latest draft, and having
more experience on the ground in dealing with the Indian Land
Consolidation Act [ILCA] amendments of 2000, we believe that
the existing version is overly complex. We would like to work
with the committee in order to make a bill that is a little
more understandable and will be capable of being implemented in
the field.
At this point you have already gone over some of the
history of the allotment process so I will not go over that
again other than to say that the direct result of the allotment
process was a loss of over 100 million acres of trust land. It
is the side effects that we are concerned about at this
hearing; principally, the fractionation itself and the problems
we have in probating all these numerous estates.
I was just looking in the room and I see many of the people
that we worked with back in the 1970's that are still here and
still trying to resolve this issue. I met with an old BIA
realty officer. He said:
You know, if we cannot solve this problem relatively soon,
within a generation or two or three, all the land in Indian
country will be so fractionated that it will become almost de
facto communal land. Nobody will know who owns it. It will just
be there and it will be a resource that nobody will really be
able to administer.
So we began reviewing the past history of this thing. It
has been well documented since at least the 1920's. The first
big detailed report was the Miriam Report in 1928 which
outlined all the problems with fractionation, with the
allotment policy, and was a very detailed analysis of all the
problems created. That was the foundation for the Indian
Reorganization Act in 1934.
Two of the cornerstones of the original Indian
Reorganization Act were a title that dealt specifically with
fractionation, and a complete separate title that dealt with
probate. Like many things that have happened over the years, by
the time it went through the legislative process, the two
titles had been dwindled down to one or two paragraphs that
were simply inadequate to address all of the problems.
Had the original provisions been enacted, this problem may
have been solved in the 1930's. That is past history. All
through the 1950's and 1960's there were additional efforts to
get a legislative solution to this problem. All of those
efforts for various reasons failed. Either the allottees
opposed it, or the tribes opposed it, or the Administration
opposed it. There was never a solution worked out.
We began working on this issue again in the early 1980s. At
that point we were working primarily with the old House
Interior and Insular Affairs Committee because they had Indian
expertise over there. That expertise is now in this committee.
We prepared the original draft of what became ILCA, the
Indian Land Consolidation Act. Our original thought was that we
would vest most of the authority to deal with this issue in the
tribes by authorizing them to create tribal probate codes. In a
sort of catchall, fall-back position in order to try to slow
fractionation, the escheat provision was put in there that for
the tiny fractional interests that were continuing to pass
until the tribes enacted their codes, they would escheat to the
tribes. As this committee is well aware, the act was amended in
1984. There were two versions of ILCA, both of which have
subsequently been struck down by the Supreme Court as
unconstitutional.
We started looking at the problem again in 1993. We revised
ILCA substantially. Irvin had been decided. Youpee was pending.
We essentially removed the escheat provision altogether. We
tried to come up with a uniform probate code. Again, as is
typical of the way these things work, by the time it went
through the process, certain provisions were put in there that
either do not directly address the problem sufficiently in
order to resolve it, or they are so confusing that it literally
cannot be implemented.
We have a team that has been put together that consist of
administrative law judges, members of the solicitors office,
and tribal attorneys that have sat around trying to analyze how
the probate provisions of the existing ILCA are supposed to
work. They cannot agree on what exactly they say.
Our employees in the BIA are supposed to go out and explain
this to Indian country. We issued a notice to over 200,000
people, as the act requires, to try to advise them of the
terms. All this created was confusion and fear in Indian
country because the provisions are basically unintelligible.
So we started working with the committee starting almost
immediately after the 2000 amendments were passed on what
became S. 1340. Initially S. 1340 was a relatively simple bill
that addressed only certain key probate issues. But it morphed
into something that is a little more complicated in the
existing version which has now been reintroduced as S. 550.
It is far more complex than the original version. At this
point the Administration just believes that it will not work
again because it is simply too complex. It has this passive
trust, active purchases, and inactive purchases. It has a
variety of things in there that we cannot interpret and we know
we cannot explain it to Indian country.
Last year the Department held a 2-day conference where we
invited members of Indian country. We also had the Secretary's
office represented. Deputy Secretary Griles was there, as well
as Jim Cason and Ross Swimmer. We invited members of the
committee and they were present.
The conference was to brainstorm some ideas on how to
finally resolve this fractionated heirship problem and how to
address probate. A lot of ideas were floated on the table. For
those of us who have been working on this for a long time, it
was old history because all the new people arrive at the table
and think they have new ideas. They have actually been
discussed many times before.
One of the things that I did was ask the Deputy Secretary
and other people from Interior to read a 1938 report that was
drafted at the end of a meeting that was held in Glacier Park,
MT. The people who ran this meeting were Felix Cohen and John
Collier, who basically are the people who created the
cornerstone of modern Federal law and modern Indian policy.
I told them to think about the discussion that they had
that day and to read this report. They would be shocked when
they read this report. They came back the next day. I was
surprised that they had actually read it.
If you tear off the cover of this report and take away the
date, and read the text, the ideas, the suggestions, and the
problems that were facing the Department of the Interior and
Indian country in 1938, they are exactly the same problems we
are talking about now.
If the committee does not have a copy, I will leave a
couple here so that the staff can look at it. I urge them to
look at this report. It is really something that is just truly
amazing when you review this. Felix Cohen and John Collier are,
of course, the fathers of modern Indian law.
At any rate, where are we right now? We have S. 550 which
we greatly appreciate the Committee introducing and to the
extent we can, we will work with the committee in order to try
to revise and create a better bill.
The Department also has a work group in place right now
that is working on a plan to expand the pilot project
nationwide in order to begin acquiring fractionalized
interests. A Federal Register Notice was published a couple of
weeks ago inviting tribal leaders to participate on that in
order to determine which tribes should be selected next in the
process and how the process should actually be implemented out
in Indian country.
When we get to the end of this, we still believe that the
most viable solution to most of these problems is to
reconsolidate these fractional interests and invest them in the
tribe. Then the tribe will be allowed to issue land assignments
or deal with land issues under traditional tribal law.
We also have in place a to-be initiative we are going
through and trying to re-engineer all the Department's trust
processes. One of the processes that is being re-engineered is
probate. Again, we would like to point out that even though we
are looking at this to-be process, that only addresses process,
it does not address substance. That is what S. 550 addresses
and that is what we need to work with. We need a substantive
change in the law because no matter how we streamline the
process this problem is just going to overwhelm anything we can
put in place.
Finally, we do have an informal meeting process. We have
not become part of the formal group. The NCAI, the Indian Land
Working Group, and others have been meeting periodically to
discuss S. 550 and ways to correct ILCA. We have had members of
our staff participating either in person, at the meetings, or
on the telephone. We are trying to solicit ideas in order to
collectively come up with better ideas.
Why do we need this? We need this because we are literally
at the point within another generation or two where this land
is going to be so fractionated that we are not going to be able
to know who owns it. We are not going to be able to account for
income that comes in from it. It will become essentially almost
worthless.
We have situations in Arizona where we have 10-acre
allotments. Many of the allotments in Arizona were made late in
the allotment period and since they are irrigated they are
quite small. We have some with over 500 owners.
When we started the pilot project we selected that because
one of the allotments there had over 1,000 owners which was the
most in the country. We now have several allotments with over
1,000 owners. When we started the pilot project that particular
reservation had 87,000 fractional interests. We have acquired
40,000 and yet we still have 87,000 fractional interests. It
has grown by that much. If we had not purchased those
interests, we would probably have 200,000 or 300,000 because a
lot of those 40,000 would have had to be in re-probate.
In 1992, the General Accounting Office [GAO] did a report
trying to assess the significance of fractionation. They went
out and looked at the 12 worst reservations that probably
account for 75 or 80 percent of the total fractionation
problem, although the problem is on multiple reservations
around the country.
We are attempting right now to generate an update to this
report to show how much fractionation has grown. Because of the
injunction from the Cobell Court, we do not have data after
2001 because our computer systems are still behind. But in the
9 years, from 1992 to the end of 2001, on these 12 reservations
the number of fractional interests went up by 35 percent.
This problem is serious. It is something that needs to be
addressed. One of the things that is required by the existing
act and also contemplated by S. 550, and one of the things that
the Supreme Court found to be deficient in the original two
versions of ILCA, was that we have to provide notice to Indian
country about what these provisions mean. We have to assist
them in drafting wills or doing estate planning.
We have gone through and issued many of the things that are
required for the Secretary of the Interior to issue that
certification. One year after the Secretary certifies it, then
the existing probate provisions become effective. S. 550 has a
similar provision.
Because the act has so many confusing and ambiguous
sections in it, the committee asked us last year not to certify
the bill. We did not certify that so that we could work with
the committee on S. 1340. We are still in that same position.
There are provisions of ILCA that are useful that we need to
implement but we have not, as yet, certified the statute.
We are hoping to work with the committee on S. 550, to
create a bill that is understandable, comprehensive, and deals
with this issue once and for all so we can go through a new
round of notices. Anything that we do as far as an amendment
will require more notices. We only want to do that one or two
more times. The last time we did a mail out, there were a total
of 210,000 notices issued.
Again we are waiting to certify. But if we cannot get
movement on S. 550 then the Secretary will probably have to
certify the bill. There are other provisions in there that we
do need in order to try to address other issues.
Mr. Chairman, that is basically where the Department is
right now. If you have any questions, I will be glad to answer
them. Mr. Lords is here to talk about anything that OST is
doing regarding the to-be process.
The Chairman. Thank you.
My morning started out pretty good until I came in here.
[Laughter.]
Let me ask you a couple of questions. I appreciate your
working with the committee to try to find some solutions to a
very complicated problem. You gave a very concise description
of how complicated it is.
When we talk about total funding, what amount of funding
would be required, do you think, to undertake an aggressive
national campaign to buy back all fractionated land? Do you
even have a ball park figure? It must be in the billions.
Mr. Nordwall. Well, we are doing a preliminary analysis
right now. We have met with the Office of Management and Budget
[OMB]. The Department has been discussing something on the
order of $2 billion.
What we are looking at on a per-project basis is that right
now given our existing systems and what we can reasonably
purchase using Land Records Information System [LRIS] and our
existing computer systems, we can spend on a pilot $1 million a
month, in other words, roughly $12 million a year.
If we just address the 12 reservations in this report, that
would take $144 million per year times however many years it
takes in order to ultimately resolve this.
The Chairman. We have already spent a lot of money on
Cobell-related historical accounting exercises, as you probably
know. What kind of a dent would $350 million make in buying
back fractionated land?
Mr. Nordwall. When we did the original projections in 1992,
we estimated that with $300 million, spread out over 6 years,
we could acquire virtually all of the land that I think was
less than 10 percent in size. That would be all the 2 percent
interests, up to 10 percent.
That constitutes over 80 percent of the record keeping.
Once we have addressed that, at that point I think viable
consideration, either in families or the tribes or in something
else, can take place. But with that amount of money, we could
probably purchase the majority of the 2 percent, and maybe up
to 10 percent interest.
The Chairman. Your testimony is that an aggressive approach
to fractionation needs to be taken and that the 4 million
interests are going to be grown to 11 million by 2030. Given
these figures, what do you call an aggressive approach?
Mr. Nordwall. First we need to address the basic probate
problems which is primarily what S. 550 was intended to do. We
need to come up with a uniform probate code or something that
is understandable by the majority of the people and that
addresses the majority of the problem.
We realize, given the last 75 years of history, that while
everybody philosophically agrees there is a problem, there is
always a disagreement as to the solution. At some point we are
going to have to make some hard decisions about what exactly we
are going to do. There will not always be 100 percent support
for this, obviously, on any piece of legislation.
We need to fix the probate process. Then we need to expand
the pilot project and target particular reservations that have
the most severe fractionation problems and the heaviest burden
on the Department of the Interior and the number of the
allottees as far as the number of Individual Indians Moneys
[IIM] accounts.
We have situations right now, particularly in the Great
Plains, where virtually all the leasing is done under 25 U.S.C.
Sec. 380. Most of the leasing statutes provide that the
allottee can come in and lease their property subject to
approval of the Secretary. But where the heirs are too numerous
or they are undetermined under certain circumstances, the
Secretary can issue a lease on their behalf in order to
generate income and then try to distribute that.
We are in a situation in the Great Plains and in the
Billings area where 90 percent of the leasing is done under
Sec. 380. Basically we pass on land owner base. They all own
very tiny fractional interests. It costs the Administration
$200, $300, or $400 to collect $10 or $20 in income. It is
counter productive.
The Chairman. You mentioned a group that you met with
perhaps several times with tribal members and people of the
Administration. You said someone of the committee was also
there. Is that their view, too, that the most important
problems are probate problems?
Mr. Nordwall. I am sure there are many here who have their
own perspectives, but I think the majority of the allottees in
our region that we deal with are all concerned about this. A
probate gets filed. Sometimes it takes 2, 3, or 4 years in
order for it to be probated. There are a variety of reasons for
that.
There are problems getting deaths reported, and getting the
information that we need from the allottees. Once we receive
the information then it has to go to the Office of Hearings and
Appeals. We have tried to create a streamlined process now,
where, if it is a money estate only, we have created these
attorney decisionmakers where they can adjudicate the small
estates.
One of the things perhaps we can examine as part of this
probate reform initiative is the way that we conduct the
appraisals. How formal does it have to be? How much of a record
has to be created, depending on the value of the estate?
Perhaps these are some of the things we can talk about with the
administrative law judges, with some of the tribal attorneys,
and with the allottees in order to speed up that process.
The Chairman. According to your testimony, it costs about
$1,400 on average to probate an Indian estate and that there
are about 1,500 estates with a combined total value of $7,200.
What ways do you propose to process or clear the books of these
little tiny dollar estates ina way that does not violate the
Constitution?
Mr. Nordwall. That is the attorney decision-maker process
that we came up with. For low dollar estates, it is an informal
process. The way they deal with due process issues is that at
any point during the process, if an allottee or an heir is
concerned about the process, they can request a full blown
hearing before an administrative law judge. For many of these
small dollar estates, though, it has not been an issue. We have
adjudicated several of those.
We are also in the process right now of trying again to
update our information, and get a better idea of the total
number of pending probates. The number is far larger than I had
thought it was. We are probably looking at probably about
18,000 probates that are presently backlogged or pending.
The Chairman. You spoke of this working group of tribal
leaders, departments, and so on. Is it the Department's
position that we should wait here at the committee level until
they reach some kind of a consensus?
Mr. Nordwall. I think most of them agree the existing bill
needs to be refined. I think the committee should wait until
the Department has had an opportunity to prepare a bill. We
will work with these groups as best we can. I think the idea
that we will have a consensus is one of the reasons why we have
never had reform. It seems like in the non-Indian world if you
get 51 percent of the vote it is a landslide, but in Indian
country you have to have a consensus. In other words, everybody
has to agree. You will never get everybody to agree.
At a certain point we are going to have to work with the
Committee. Some decisions will have to be made on how to
address this.
The Chairman. If we expand the buy-back alone without
changes in the probate law, will that accomplish anything?
Mr. Nordwall. The way we have always looked at this is
this. This is a two-part scenario. We have to consolidate the
existing fractions. We have to slow or stop further
fractionation. Somehow if we could get far out in front of this
problem to buy the fractionated interests back quick enough, it
might give us enough time to try to resolve the probate issues.
They really need to go together.
It is a pilot project. The problem that we have had is that
we have bought over 40,000 interests, but we are exactly where
we started three years ago. We still have 87,000 outstanding
interests.
So if we could jump far enough in front with a large enough
program, we might be able to put enough of a delaying action in
there to address these other issues. If we can consolidate
enough of these things into the tribe, it might do it. We
always looked at this as being a two-pronged approach.
The Chairman. Thank you.
Senator Thomas, did you have some questions?
Senator Thomas. As I listened to your describing the
history of this, I think you almost indicated that this bill is
no different than what was talked about in the 1930's. Is there
is a clear remedy that is different than what you talked about
in the last 30 years?
Mr. Nordwall. No; I think that is why I suggested that this
memo is surprising. Virtually every single issue that we have
talked about is in there. I do not know that anybody has a
magic bullet. Nobody has come up with that. That is part of the
problem that we have. Everybody says, ``Gee, there must be a
simple solution to this.'' The solutions are all complex.
Had we done this in the 1930's, it probably would have cost
us $800 or $900 million to resolve this problem in 1930
dollars. Now it is going to cost us $2 or $3 billion to solve
this problem. If we do not address it in the next 5 or 10
years, it is liable to cost us $10 or $20 billion, plus the
exposure to the United States on additional Cobell-type
litigation. It is just going to expand as rapidly as the
fractionation.
Having dealt with this for years and met with lots of
people, there are no magic bullets. I do not know of anybody
that has thought of a solution that will address this problem
cheaply, quickly, and without a lot of manpower involved. It
just is not an easy thing to deal with.
Senator Thomas. How do you divide the issue of resolving
the operations in the future as opposed to settling the
differences in the past? Which of those is most important?
Mr. Nordwall. Do you mean as far as the Cobell litigation,
the issues that are involved in that?
Senator Thomas. Just the differences that are involved in
the issue? If you took the money that I guess you and Griles
are talking about and spending it here, would that solve the
problem in terms of process in the future?
Mr. Nordwall. There are some lands that are still in sole
ownership. Some of the lands, such as the ones at Palm Springs
have high value. Some of them have producing oil and gas wells.
The families, in those cases have tended to not allow the
fractionation to occur at quite the level that we have.
Up at Crow there is a competent leasing statute where as
long as the family keeps the number of owners at five or less,
they can lease their property without the approval of the
Secretary of the Interior. In those circumstances where they
have done that, the Department would not initially be
interested or target acquiring those.
The other interests where there are thousands of owners in
single tracks, we think the only long-term solution is to
acquire them and turn them over to the tribes. At that point
they cannot fractionate after the tribes own them. At that
point, the tribes would issue land assignments or traditional
use areas like they did under tribal law before the allotments
were issued in the first place.
Senator Thomas. What is going to be the benefit to 1,000
owners over a relatively small and productive piece of land?
Mr. Nordwall. What we have found is that these 1,000 owners
own interest in more than one allotment. When we go out and we
do the evaluation for the price, we find that they own multiple
interests. We create an inventory that shows the value of each
interest. While each interest may only generate a few cents,
the value is a little higher. Usually it is a 10-to-1 rule. If
the property generates $1 in income, it is usually worth $10.
It usually adds up to a fairly significant amount of money,
several hundred dollars and in some cases several thousand
dollars. They get a direct benefit from this acquisition
program that they would not get by getting one or two cents a
year off the leasing income. They can use that for other useful
purposes.
Again, hopefully once this land is revested in the tribes,
then as members of the tribe they will have a right to go to
the tribe in order to seek a land assignment or some use right
on that property.
Senator Thomas. I understand. It just seems like it is a
waste of effort to go out and spend a lot of money and spend a
lot of time where each individual gets a few dollars. It is
hardly worth it.
Mr. Nordwall. That is one of the issues that we have talked
about, too. In those circumstances where the inventory is
small, if somebody only has $2 worth of land, they are not even
going to drive to town in order to fill in the paperwork to
sell the property.
Senator Thomas. Or in your time dealing with them?
Mr. Nordwall. Right. And whether or not we should offer a
minimum price on some of these things. That is another issue.
Senator Thomas. Just because issues are difficult does not
mean that they can be prolonged forever. Someone has to step up
and do something. The Department has not done a lot, it seems
to me.
Thank you.
The Chairman. We appreciate your being here. We look
forward to working with you on some amendments to the bill to
try to make it understandable and acceptable to everybody.
Thank you for being here, Mr. Nordwall.
Mr. Nordwall. I will leave a couple of copies of the 1938
report here. If the staff has time to look at it, I think they
will find it very interesting.
The Chairman. Good. Thank you.
Panel two will be John Berrey, chairman, Quapaw Tribal
Business Committee, Quapaw, OK; Ben O'Neal, tribal council
member, Eastern Shoshsone Tribe, Fort Washakie, WY; Cris
Stainbrook, executive director, Indian Land Tenure Foundation,
Canada, MN; and Judge Sally Willit, Indian Land Working Group,
Albuquerque, NM.
All of your written testimony will be included in the
record. As with the first panel, if you would like to
abbreviate or divert from your written statement, that would be
fine.
We will start with Mr. Berrey first. Welcome.
STATEMENT OF JOHN BERREY, CHAIRMAN, QUAPAW TRIBAL BUSINESS
COMMITTEE, QUAPAW, OK
Mr. Berrey. Good morning, Mr. Chairman. Thank you for
inviting me. Senator Thomas, I am very honored to be here to
speak here.
I am here to give you and little idea of what probate looks
like today and how the current problems regarding probate are
not just probate-only problems. I will give a description of
the complex interrelationships involved in the cash, the land,
and the resource management processes that are currently
administered by the Department of the Interior.
Last year I was a member of the non-defunct Trust Reform
Task Force. As part of that Task Force I was really fortunate
to have a great opportunity to work on what is called the ``As-
Is'' project. I spent over 204 days away from my family and
tribe, traveling across the United States, interviewing nearly
1,000 people that work in the Department of the Interior or for
tribal governments in all 12 regions.
We made a detailed and intricate study of how they actually
do their processes. The processes that we analyzed were
accounting, which is the co-actions and the management of that
money, and the distribution of that money. We talked with
everyone from superintendents to MMS people. We did a detailed
study. We put it all down and we have a really good picture of
how this works throughout the country and how there are
different nuances, the way tribal laws work, tribal State laws,
State regulations, and how they affect all these processes.
We also looked at appraisal. We looked at what happens when
someone wants an appraisal. Who do they ask? How do they get
the appraisal started? Who does the appraisal? How is it
reported? How is that information managed?
We looked at what is called beneficiary services which is
the contact between either a tribal member, a beneficiary, or
the tribal government itself, and there interrelationship,
whether it is OTFM, whether it is MMS, or BLM. How do they
interrelate? How do they interact? How is that tracked?
In some locations, particularly at my agency, you used to
go to the superintendent and they would give you nothing. They
would just blow you off. There are some agencies and some
processes out there that really try hard to track that contact
and follow it through all the way to where the answer the
questions. Where is my check? What is going on with the
enforcement on my lease?
We also looked at the Cadastral Survey Services which is
the identification of the true boundaries of any allotment or
any piece of land that is managed by the Department of the
Interior, of how that is ordered, how that is recorded, and how
that information is managed.
We looked at probate. We looked at it in detail. We looked
at the three segments of probate. There are three distinct
sections that you need to understand. That is where a lot of
inherent problems in probate are. There is the case
preparation, which is where all the documents are gathered for
the adjudicator to clearly understand the cash ownership and
the land ownership of the deceased person. They are able to
come up with the people that are inheriting that land through
that process. There is such a tremendous backlog in these
records. That is where a lot of the problem is today: In
probate.
There is the adjudication process. There are three
different adjudicating groups. There are the ADMs as Mr.
Nordwall discussed, the ALJs, and the IPJs. We interviewed all
those people. We talked with them from the very beginning from
the moment a person passes away to the time the accounts closed
and we documented every step of the way--what rules and
regulations they follow, and the intricate processes they
follow.
We also looked at surface and subsurface management. We
wanted to understand in detail how a lease is developed. If
someone wants to look for oil and gas on a particular piece of
property, how does that relationship work when that person goes
to the superintendent? They talk about what they want to do,
and how they go through the process of creating the lease. They
talk about the compliance and enforcement of the lease. They go
all the way to the point of when they release the bonds,
reclamation is done and all the cash is distributed from that
lease.
We did it for timber, for agriculture, whether it was for
crops or grazing. We did for the commercial businesses. We did
it for surface minerals such as gravel and sand. We did it for
subsurface which is oil, gas, and mining.
Finally, we looked at the title. Typically in the non-
Indian world you think of title of the plat book down at the
county courthouse where everything is laid out, any liens and
encumbrances upon that property. But under the Department of
the Interior, their title system is a lot more broad. Because
of fractionalization, it is a huge problem. That where we see a
lot of the problems today. The management of probate circles
around the title which is the ownership information related to
a particular piece of property.
There is a piece of land in the Great Plains that is 80
acres. It has over 3,000 owners. It generates $100 of income a
year. It is a huge problem just to manage those names and
addresses, who they are and where they are from.
We traveled all across the country. We had some people from
the Department of the Interior and we had people from a group
called EDS, our contract facilitators. We talked with people
from BIA, MMS, BLM, OTFM, and OHA. Anybody that touched trust
we interviewed them and we documented what they do. We went
through 638 contracts, self-governance tribes, and direct
service tribes. We went to all 12 regions. We talked with
clerks, line officers, and managers. We interviewed everyone in
the system if they were available. But we got to every position
that was in the system.
The beauty of this whole project is that for the first time
in the history of the United States, we established a
comprehensive understanding of the current trust business
operations. We documented these variances--the difference
between how it is done in Nashville versus how it is done in
Anchorage or how it is done in Phoenix versus how it is done in
the Great Plains.
We have a detailed understanding of the differences between
tribal laws, local laws, and State laws. We documented the way
the people read the CFRs differently. We also identified all
the opportunities for the re-engineering process. What does
this have to do with probate? Over the years, Indian country
has seen reform issues, reorganizations, plans, meetings,
summits, work groups, task forces. All of these have been quick
fixes, but none of it has really worked because they have never
attacked the core problem, which is this fractionalization
problem.
The fractionalization is making it impossible to manage
this information. The General Allotment Act of 1887 was
designed to destroy tribal governments. I think it is time now
that we reverse that and try to give the land back to the
tribes to increase their land base in their jurisdiction.
The DOI is pretty much a land management entity. If you
look at their systems of record, in order for a probate package
to be created, they have about 67 different title systems that
they currently use. There is TAAMS, LRIS, MADS, GLADS, and
TFAS. There are spreadsheets. There are different agencies.
There are different software systems that agencies have
developed.
But the sad part is that 30 percent of the agencies today
still use handwritten A&E cards. That is a huge problem. At my
agency, in particular the Miami Agency in the Eastern Oklahoma
region, they update title once a year. Once a year they update
these 3x5 cards. They order pizzas. They bring everybody into
this room and they all sit around and they fill out these
little cards. Every evening this little old lady carries the
box of cards back to the closet and if she drops it, our
records are going to shoot across the room.
There is a lot of overlapping and inconsistent information.
Most of these systems are stand-alones. It creates a huge
problem for probate. I have an analogy I like to use. I call it
the Haskell effect.
If you have a Navajo man to go to Haskell Indian School. He
marries an Osage woman. They move to Minneapolis. They adopt a
couple of kids from Northern Cheyenne. They die in a car wreck.
The tragedy is not only the death, but the real problem is that
the Department of the Interior has no way to identify that they
have land in holdings in three jurisdictions. Because of the
stand-alone systems, it is very difficult for them just to get
the packet prepared in order for the adjudicator to make his
decision.
There is a bright light here in all this. The second phase
is the re-engineering. It is the ``to be'' process. We are
taking the information we found. I brought you copies of the CD
version and one bound version of our ``As-Is'' report. There
are ways to clean up this ownership information. There are ways
to clean up these systems. It is a process that evolves through
neglect, poor management, and all these other problems.
But I believe that the Secretary and the Deputy Secretary
are really dedicated to trying to fix these processes so you
can do your job by helping us with a uniform probate code that
will solve the fractionalization problem and help them get a
handle on this huge title ownership problem.
There are a few recommendations that I would like to put
forward. We, from the Indian side, have gone from our work with
the As-Is process. We have to respect the property rights of
the individual owners. But within the framework we have to do
everything possible to encourage consolidation of Indian land.
That should be the single guiding light in any probate
reform. Does it help consolidate the land? Does it help reduce
fractionalization? Does it strengthen the tribe's land base and
their sovereignty?
The tribes are making big efforts in this process. My
tribe, for instance, are trying to buy individual undivided
interests in allotments with money that we receive through our
economic development. It is a voluntary program. We just ask
tribal members if they are interested in selling their land. We
try to get a fair market for it and cut a deal with them. A lot
of tribes are trying to work through those kind of ideas.
We also understand that Indian land owners have the right
to devise their land to whomever them want, but they must be
compensated. That is where I think the key is, in making sure
there is due process of compensation for these small fractional
interests.
This could be a giant step forward in this process. But we
believe that they need to limit the testate provisions to the
immediate family who are members of the tribe. If there are no
such members, the land needs to revert back to the tribe
itself.
We need to promote estate planning; 95 percent of the
Indians do not have wills. It is difficult for the average
population to talk about their demise and to plan for it. Many
of them do not even know where their land is. It makes it hard
for them to divide it up. We need to work on some of those
things and reduce fractionation. That would help.
We believe adjudication should be put under one roof. The
ADMs and the IPJs intimately know Indian law. They know the
land. They know the people. They know the fractionalization
problems. We think those should be the people that are doing
the adjudication. It is difficult for young Indian attorneys or
people who are interested in Indian country to be part of that
process. We would like to see getting away from using the ALJs
and going more to the IPJs and to the ADMs.
Perhaps most importantly, like you talked about, you need
to beef up this land consolidation pilot project. We totally
support that. We think it is a great idea. It has to be pushed
harder. It has to be funded better. But it has to be managed
better by both the DOI and the tribes that are involved.
In closing, I would like to pledge my assistance to any
member of your staff or any members of this committee whenever
you have issues related to the complex management of the Indian
trust and Indian country, I would be more than happy to help
you.
When it comes to fractionalization problems, settlement of
historical claims, or any of the historical accounting
problems, I have spent the last year of my life buried in trust
management issues. I love it. It is crazy work. But I really
think I could bring some clarity to it.
If you have any questions, I would be more than happy to
answer them. I would like to submit our testimony for the
record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of John Berrey appears in appendix.]
The Chairman. We will finish with the whole panel before we
ask questions.
We will now go to Ben O'Neal.
STATEMENT OF BEN O'NEAL, TRIBAL COUNCIL MEMBER, EASTERN
SHOSHONE TRIBE, FORT WASHAKIE, WY, ACCOMPANIED BY ROBERT HARRIS
Mr. O'Neal. Mr. Chairman, Senator Thomas, and members of
the committee.
My name is Ben O'Neal and I am a member of the Business
Council of the Eastern Shoshone Tribe of the Wind River
Reservation. I am joined by Robert Harris, also from the
Eastern Shoshone Tribe. It is with great pleasure that I
present this testimony today on behalf of the Eastern Shoshone
Tribe. Chairman Vernon Hill regrets that he could not be here
today, but pressing issues kept him at home.
The Eastern Shoshone Tribe of in Wind River Reservation is
a federally-recognized Indian tribe with approximately 3,500
members. The Wind River Reservation is located in Central
Wyoming and is the home of two tribes--the Eastern Shoshone and
the Northern Band of Arapaho. There are also approximately
25,000 non-Indians living within the exterior boundary of the
reservation.
Many members of the Eastern Shoshone Tribe are deeply
concerned with the fact that they may not be able to leave
their land to their heirs. Provisions within S. 550 address
this problem, and it is for this reason that we strongly
support its passage.
Title to land within our Reservation is held in various
ways, including in trust, in fee patent, as tribal land,or as
land held jointly in trust by the Eastern Shoshone and the
Northern Arapaho Tribes. Our primary concern today is with
property held in trust for individuals Indians. I would like to
use myself as an example of one way in which S. 550 would bring
relief.
In 1955, I married my wife who is non-Indian. We were both
from ranching families,, and in 1972, we started acquiring land
and building our own ranch. The first 200 acres we purchased is
held in fee patent. It is located on the Wind River Reservation
and contains the home site where my family and I have lived for
more than 30 years. We also lease several allotments adjoining
this property, allowing us to run enough cattle and operate a
ranch in such a way we have derived our living solely as
ranchers.
In 1989 we purchased an 80-acre track of trust land from an
individual Indian. We paid fair market value for this land. The
track adjoins our patent fee ground and adds significantly to
our ranch. In 1994, my wife and I purchased 240 acres of patent
fee land from my neighbors to allow for expansion and our son
and daughter expressed an interest in being part of the
ranching operation.
At the same time we also purchased 200 acres of adjoining
Indian trust land from multiple Indian heirs. These lands are
all contiguous and even contain a creek that runs right through
the middle adding further value to our property.
Through additional acquisition, I currently own 1,200 acres
of property within the Wind River Reservation. One-half of this
property is held in trust. The other one-half is held in fee. I
paid fair market value for all of it. Under current law, as a
member of the Eastern Shoshone Tribe, and as a landowner, I can
only will my trust property to an Indian or to my tribe; but I
would like to leave to my family.
I am not alone in the fact that my wife and my children are
not members of the Eastern Shoshone Tribe. Despite the fact
that they have stood by me over the years and have helped our
ranch become a success, current law only permits me to leave my
trust property to them as a life estate. I find this
unacceptable.
My only option is to remove the property from trust status
and place it in fee, something I do not wish to do. Individual
Indian land owners, such as myself, should have other options.
We should be able to determine to whom we leave our land.
Indian land owners should have the same rights as others within
our country to keep property within our families for as long as
we choose to do so.
This right should not be based upon race or political
distinction, just as it should not be based upon religion or
other similar factor. I support the passive trust provisions
within S. 550 because they allow me, and all others like me, to
ensure that property stays within our families for the duration
of our choosing.
Let me be sure to point out that the Eastern Shoshone Tribe
is not seeking to impose this option on everyone. If an Indian
landowner wants to give their trust property to the tribe, they
should be able to do so. Our position simply is that there
should be an option added to those that current exist; that we
should be able to choose who gets our land.
In the future, if my descendants determine that it is time
in their best interest to sell this property, the tribe should
be given a period of time in which to exercise a first right of
refusal. They should, however, be required to pay fair market
value for it, just as I did.
This raises another concern we have with existing law.
Currently, there is little incentive for the tribe to pay
anything of value for trust property. The tribe realizes that
for individuals such as myself, who are restricted to leaving
trust property to heirs as a life estate. It is only a matter
of time before the tribe comes into possession of the property
with no payment at all.
This eventual outcome serves also to discourage use and
improvement of the land. Why would I invest hundreds, even
thousands, of dollars to improve the land when I know, in the
end, I will not be compensated for my investment. Again, I find
this unacceptable, and am pleased that S. 550 works to resolve
this issue as well.
As an aside, I find it important to mention our concern
with the tribe's ability to purchase trust property, even if
they wish to do so. While purchases on a limited basis would be
feasible, financial assistance would be necessary for the tribe
to make larger purchases. We encourage the Congress to ensure
funds are available for this purpose.
I also support the idea that should the tribe not wish to
pay fair market value for trust property, the option should be
available to sell it to someone who is. It is important to note
that this should not be viewed as a reduction of tribal lands.
Many people hear the term ``trust property'' and they think of
``tribal property.'' This, however, is not the case.
My property is trust property. It is held in trust for me,
Ben O'Neal. It is not tribal property. I have spent my entire
life working and saving to buy what I have; to make a life for
me and for my family. I should have the right to determine to
whom this property is left. My descendants and I should have
the right to be dealt with fairly.
On behalf of the Eastern Shoshone Tribe, I again thank you
for the opportunity to present testimony today. I encourage
passage of S. 550.
Mr. Harris and I are happy to answer any questions you may
have.
I would like to submit our testimony for the record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Ben O'Neal appears in appendx.]
The Chairman. Is Mr. Harris your attorney?
Mr. O'Neal. He is a member of the Shoshone Tribe. He is on
the Land Committee for our tribe.
The Chairman. Thank you.
We will now go to Mr. Stainbrook.
STATEMENT OF CRIS STAINBROOK, EXECUTIVE DIRECTOR, INDIAN LAND
TENURE FOUNDATION, LITTLE CANADA, MN
Mr. Stainbrook. Chairman Campbell, thank you for extending
the invitation to provide some testimony on S. 550. I would
appreciate it, and my family would certainly appreciate it, if
these hearings could be spread out over some time as I was here
last week. The commute from here to Minnesota is getting a
little strenuous.
The Chairman. Try it every week from Colorado or Wyoming.
[Laughter.]
Mr. Stainbrook. There you go.
As you will recall from last week's testimony, the Indian
Land Tenure Foundation is a fairly new institution. We were
created by Indian people from throughout the community that had
an interest in land issues and land tenure issues throughout
Indian country.
We basically function as a community foundation within the
Indian community, and received our initial capital of $20
million from the Northwest Area Foundation which has now become
essentially our corpus. The function and the focus of our work
is in resolving land issues in a manner that really creates and
maintains a higher level of self-determination in Indian
country by Indian people and the tribes.
One of the basic premises of that, of course, that Indian
people need to be involved in designing and carrying out
effective solutions. In fact, that is what led to the creation
of the Indian Land Tenure Foundation. I believe over the long
haul this will lead to an effective resolution of the
fractionated ownership that we are talking about today.
Last week in my testimony on S. 519, we talked some about
the problems of the fractionated land base on the future
economic development of Indian country. As you pointed out
again this morning, it is a fundamental core piece and needs to
be resolved.
Let me assure you that Indian people understand that
connection. They also understand the connection between other
aspects of the fractionated land base such as the limitation of
their own use of the land for situations like affordable
housing or even a homesite at all. There is also the basic
threat to sovereignty that exists by having this fractionated
land base. They want effective solutions.
The 2000 amendments to the Indian Land Consolidation Act,
while they are essentially on hold at this point, they have
really created a large amount of concern throughout Indian
country and near panic in some situations, particularly with
some of the older interest holders.
People have begun to pull their land out of trust, fearing
in fact that if they do not do that shortly, they will not be
able to direct where those assets are going, and especially to
their relatives that are not eligible for enrollment with the
tribe.
While this may reduce Federal management costs, it
certainly does put Indian land in jeopardy of passing out of
Indian ownership. The S. 550 amendments that are proposed here
are an improvement on the 2000 amendments, we still believe
that they contain some provisions that limit self determination
and threatens the Indian land base.
Two of those provisions in particular are the joint tenancy
and the passive trust provisions. They both contain substantial
legal issues that will probably be challenged. That, of course,
causes concern.
As was pointed out earlier, the provisions coming out of
the Indian Land Consolidation Act, essentially through Indian
country, have provided several years of discord within Indian
country. When it comes to the data processing and the
application of probate, you end up with considerable problems
and backlog. In fact, that backlog, once the constitutionality
of that provision was declared illegal, it left Indian country
with about 13,000 interests that still need to be re-probated.
Indian country basically cannot afford a repeat of that. We
believe that the joint tenancy and the passive trust components
have that potential.
What we would offer instead is a different route to the
committee. We would certainly invite the Committee to join the
Indian Land Tenure Foundation in engaging the community in the
crafting of some solutions.
One of those solutions that we discussed last week with the
committee was the Indian Land Capital Fund. This is a fund that
we have been working to put together. It is basically designed
to take the pilot project to a different scale where it can, in
fact, begin to have an impact that changes the dynamic from
marking time and not really getting ahead of the fractionated
problems, but gets it up to a scale where, in fact, the number
of ownership interests are reduced. I think Mr. Nordwall
covered a fair bit of problems around that and how they
continue to grow.
The fund itself has two major components, one being a very
large private capital investment pool that would serve us
nationally. And are a number of affiliated local land
consolidation acquisition programs with the tribes. This is
based largely on the Rosebud Sioux Tribes Tribal Land
Enterprise program.
This is a corporate model, essentially, that has been
operating on the Rosebud Sioux Reservation for approximately 50
years. It buys undivided interests from tribal members as well
as alienated lands. It uses their management capability to
increase the amount of leasing coming in off that property. It
then uses the income from the property to make more purchases.
It has grown substantially.
Tribal members, of course, maintain their interests through
class A shares and others through class B shares. They are held
essentially as stock in the enterprise. The shares can also be
traded, bought, and used to ascertain surface use assignments
from the program.
We think it has a number of advantages. One, it reduces
fractionation overall and, therefore, the cost of the Federal
administration. It secures the tribal land base and, in fact,
even expands it through its acquisition of some of the
alienated properties.
It maintains the asset and value for individuals. Indeed,
we think it creates added value in that these shares are much
easier to trade than if you were to do gift deeds or other
pieces related specifically to land title. Therefore,
consolidation becomes much easier over the long haul.
The other pieces that would apply at local levels would be
some variation on the model that Rosebud uses and also an
adaptation to their own local tribal planning. Probably most
significant at all, with enough capitalization, these programs
can, in fact, become self sufficient over the long haul.
This morning we have heard a number of people asking about
the $2 billion. I was interested in that. As you will recall,
last week we provided testimony where our estimate was $1.25
billion to resolve the fractionated interest. I was interested
to hear that the Bureau of Indian Affairs has a little higher
number.
The Chairman. That is how fast the problem is growing.
[Laughter.]
Mr. Stainbrook. Very good.
I think probably it is worth noting that in fact many
resources can be brought to bear from throughout Indian
country. The Federal Government does not necessarily bear the
brunt of the full $2 billion. As Chairman Berrey was pointing
out, their tribe, in fact, has a program of buying undivided
interests.
Individual Indian people want to consolidate their land.
The fact that they will be bringing their resources to bear to
consolidate that land will also help offset some of that $2
billion if, in fact, there is a mechanism there that allows
that.
Will the model that we have described work if S. 550
passes? We think it will, but if it passes as it is, I think
there are a couple of things that will happen. One, the demand
for the services of the model will go up because people will
remain scared of the process and will be looking for
alternatives to it.
As Mr. Nordwall pointed out, the Bureau staff simply do not
understand this and the process will slow completely. That will
create a problem for going forward with the model that we
proposed and will be carrying out. We need those title
processes to work, and work efficiently.
As just a couple of final comments, we would advocate
eliminating all the joint tenancy and passive trust provisions
that are in place. We would advocate adopting a uniform probate
code that is attached and accompanies the Indian Land Working
Group testimony.
Finally, in any piece of legislation that goes forward, we
would encourage the Committee to make any action by the
Secretary based on an affirmative action of 50 percent of the
interest holders for any allotment as opposed to a lack of
objection. This is the standard that has been applied for
Indian people and the tribes in managing this land. We think
the Secretary should also be held to that standard.
Thank you, Senator Campbell, for allowing me to provide
some testimony. I would like to submit our testimony for the
record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Cris Stainbrook appears in
appendix.]
The Chairman. Thank you.
Ms. Willit, I understand you will be speaking for Chairman
Nunez; is that correct? Go ahead and proceed.
STATEMENT OF JUDGE SALLY WILLETT, INDIAN LAND WORKING GROUP,
ALBUQUERQUE, NM
Ms. Willett. Thank you. I am Judge Sally Willett. I am
going to borrow a phrase from one of our Working Group members.
I am older than dirt. I have been doing this forever.
I would like, if at all possible, to hand charts to you
that I think that will address the substantive probate code and
core issues that people have referred to. I would like to give
you and Senator Craig a copy, on behalf of the Indian Land
Working Group, the Indian veterans calendar. I have copies for
everyone on the dais.
The Chairman. Thank you. That has a solution to this
complicated problem in very simple language; is that correct?
Ms. Willett. It has a picture. This can be as deep or as
superficial as we would like.
I am going to introduce myself briefly and then I am going
to make the two comments that I need to make that I have been
asked to give. Then, I am going to get into the nuts of bolts
of what we need to do.
I am a member of the Cherokee Tribe. I entered the
threshold of Indian law 32 years ago. All but 4 of those years
have been involved in Indian probate, Indian estate planning,
anti-fractionation measures, and educating individual Indians.
I have structured a non-fractionating estate plan within my own
family that walks the fine line of benefiting heirs who are
non-Indian and benefiting those who are.
I have conducted thousands of Indian probate proceedings
and in each and every one of them I explained Indian land
ownership and I explained how to estate plan to each and every
one of the people present using charts. We cannot give
information to people who have an average sixth to eight grade
education in high-minded language that nobody understands.
The Chairman. Let me interrupt you for 1 moment.
Is this a descendency and ascendancy chart of a real
person?
Ms. Willett. That is how you determine degrees of
relationship.
The Chairman. Do you know anybody that fits into that
category?
Ms. Willett. Yes; we are not going that far.
I did what Mr. Berrey did in 1999 for the Department of the
Interior. I would say that many of Interior's wounds are self-
inflicted. What I would like to say at this point is that
progress is being made.
I listened to Wayne Nordwall whom I have known for more
than 30 years. I listened to Mr. O'Neal, Mr. Stainbrook, and
Chairman Berrey. It seems to me that we are all on the same
sheet of music. If things were understood properly, we can get
there faster.
We oppose intestate joint tenancy. We oppose passive trust
interest. We oppose the confusing language of both ILCA 2000
and S. 550. People have already commented about the meat of my
presentation.
I am going to restrict my comments to two areas. First, the
definition of Indian and second, how to fix the problem. It
requires that we stop fractionation in the future by limiting
inheritance and that we acquire a Fifth Amendment protected
property rights with compensation. We work from both ends
toward the middle in reducting the problem.
The Indian Land Working Group, the Department of the
Interior, the National Congress of American Indians, California
Legal Services, and I believe the Indian Land Tenure Foundation
are all working very heavily and making progress on many of
these issues. We would like for you to encourage the Department
of the Interior to join in this effort.
We would also like for you to ensure that they do not
certify the ILCA amendments 2000 until this mixed effort has
had a fair opportunity to reach some of the more distracting
issues that are involved.
I am going to basically go to the definition of Indian and
point out what Mr. O'Neal has described as Interior's influence
into the ILCA Amendment 2000. It accomplished shooting the
wrong horse. Anti-fractionation addresses how you approach the
land. When you cut out legitimate heirs, the lineal descendants
which account for 65 percent of all inheritance, you are
unfairly impacting a particular population.
Probate laws are founded upon the common human experience
and that is people look down to dependents. [Pointing to
chart]. If none, they go up to ascendants and, then, they go to
collaterals, to the side.
Lineal descendancy inheritance accounts for approximately
65 percent of all inheritance. All human beings have this
expectation and rightfully so. When you make that heir pool
non-Indian by giving a political definition to who is Indian,
you are wiping out the legitimate heir pool for most human
beings.
There are four points I wanted to make to this in this
regard. A membership definition: ``orphans'' millions of
people. There is an out-marriage rate in Indian country of 75
percent. You have most tribes pegging their membership to a
blood quantum. Blessedly my tribe does not. It recognizes its
people.
In 1980, 40 percent of all tribes had no approved
organizational. I do not know what it is now. But there will be
large numbers of tribes that do not enroll. You are orphaning
them. According to the GAO report of 1992, just the northern
tier, the most fractionated region, one-seventh of that
population ok unenrolled land owners.
ILCA orphans them. You now have non-Indians owning trust
lands. There is another problem. You have--idiosyncratically,
the membership definition hurts people of high blood quantum of
multiple tribes more than people of low quantum who are mixed
with white or non-Indian blood.
For example, it takes three generations to get to a
quarter-blood which is the most common blood quantum. If you,
as in my case, have grandmother, full-blood; mother, half-
blood; and me, quarter-blood. Let us say you have a Pima/
Shoshone, Paiute/Sioux, they were half-bloods of each tribe,
the two parents. Your first generation is quarter-blood. So
people who are higher blood quantums suffer under that
definition.
The more people you make non-Indian, the more
jurisdictional problems you have. The more non-Indians, the
more this aggressively hostile Supreme Court will apply its
unusual new wave of law that has existed since Oliphant and
United States v. Montana.
We are begging you. There is panic in Indian country. What
Mr. O'Neal describes is absolutely true. They tried to reduce
fractionation by eliminating who can inherit. They are taking
away, in many instances--because of the high out-marriage
rate--the people's right to leave property to their children.
This is not right. If you will look at the ascendancy/
descendancy chart that you have in front of you, I would like
for you to go to the middle where you see the term
``decedent.'' I would like for you to count down to two and
three. Then, go up one. Next go out to two. I am sorry. I had
thought the chart was with our presentation. I apologize to
those in attendance.
One through three accounts for 65 percent of all
inheritance. My experience in Indian probate explaining to non-
Indian spouses what their inheritance meant produced 100
percent disclaimer rate, in many instances with a retention of
a life estate. The life estate is inappropriate as applied to
real people of real Indian blood. The problem with ILCA 2000
was the alteration of the ethnicity of real people of Indian
blood, not with the life estate.
I covered Palm Springs. My territory was the Southwest. I
covered the big ticket property. Do not imagine that the big
ticket property was just Palm Springs. At San Xavier District
of which Mr. Nunez is the District Chairman, the largest estate
I ever probated had $80,000 in the IIAM account just from
fractional interests in copper. It is a boom or bust
proposition. Copper is hot or it is not. It was all
fractionated interests.
Essentially, what I want you to know, and bring it down to
a very small picture, is that we need a code that legitimately
recognizes the right of people--and Indians specifically who
are very lineal-descent focused--to benefit their own progeny.
We think that you can go to the collateral second degree.
Beyond that is where explosive fractionation kicks in. It goes
wild after that point.
Look what you are cutting out on this picture. If you go
through one through three, down, and go to two, out, you have
cut out all of the fat, all the difficult to find and manage
interests. You are very basically restricting it to a fair
opportunity for ordinary human beings--and in case Indian human
beings--to benefit people who legitimately have an expectancy
to receive.
We have a code submitted that addresses all of these
issues. The addressing fractionation chart is the next I want
to refer you to. I was sitting around talking to myself, as I
am inclined to do at times, and said, ``Willett put up or shut
up. You are always talking about not fractionating. How would
you do it?''
I sat down and said the first thing I would do is that I
would de-politicize it. I was in the Office of the Secretary.
We were the cash cow. Indian probate did not fail. It was
pushed to failure.
The next is to provide adequate resources. On the
reinvention task force that I was on we provided for that. In
implementation, it went nuts.
Provide cultural sensitivity. Interior got rid of all of
its Indian-knowledgeable people and, now, wonders why it has
problems.
Provide maximum adjudicative protections. This is where
Chairman Berrey and I would disagree. I do not think holders of
interest in public lands should have greater adjudicative
rights than people to whom a trust responsibility is owed. That
situation exists now.
The Uniform Probate Code. Under 25 U.S.C. Section 348 which
was part of the General Allotment Act, they thought Indians
were going to be gone and assimilated in 25 years and that the
States were going to take over. That is why 50 State laws were
applied. We need to get rid of that and make it simple.
Limit inheritance. I have already described that. Give
people a fair opportunity for their real family to take. Do not
change the ethnicity of people as an anti-fractionation device.
It is inappropriate. That is what I call shooting the wrong
horse.
Limit non-Indian inheritance. With an out-marriage rate of
75 percent, your herd is thinning; 100 percent of the spouses I
dealt with were horrified when they realized that if they took
their interest, it collapsed the trust and that it would not be
restored automatically. They could not disclaim fast enough. I
had to convince them to take life estates.
Maximize knowledge. I believe that I may have been the only
person who ever consistently did Indian estate planning and
fractionation education as a part of the probate process as an
integrated system. But there were many non-Indians who did it
with me. My wave was the group that did it.
Tribes need to know about it. They were not allowed to
tamper with allotted land issues for a long time, especially
the IRA tribes. Land owners simply have never been given
information even about the 1984 amendments to ILCA.
Dollars for consolidation. If we limit fairly to the second
degree at the collateral level, and we start buying up the
small stuff--I was thrilled to hear Wayne Nordwall say that.
Then, you can get to the point of real consolidation.
There is a lot of commonality here. I think we need to
approach those things about which we have common ground. We
need to quit coming up with exotica. There is no more room for
exotica. A lot of money has been burned off that could have
applied to good hard acquisition. There is no room for any more
exotic experiments. Stick with meat and potatoes.
The Chairman. I appreciate your testimony, but we are going
to run out of time in just 1 minute or 2.
Ms. Willett. I am done. I would like to submit our
testimony for the record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Ms. Willit on behalf of Chairman
Nunez appears in appendix.]
The Chairman. Thank you.
I am going to submit a number of questions in writing to
you, if you can answer those in writing.
Let me ask you a few questions to start with. I will also
ask Senator Craig if he also has questions.
Let me just start with John Berrey. Thank you for being
here.
Your testimony sounds like you are a no-nonsense kind of
person. You said you did over 1,000 interviews, as I remember
your testimony. If we are going to try to get away from the
exotica, as Sally had mentioned, what would you say we can do
to stop the hemorrhaging? What do we have to do as the central
focal point to try to resolve the problem?
Mr. Berrey. I think I agree with Sally that it has to be a
multi-pronged approach. I think the Uniform Probate Code is big
first step. A simple, clear, unified probate code. Second, I
think the resources on the Interior side need to be targeted
and focused on title ownership, record cleanup, maintenance,
and systems integration.
The Chairman. As I understand your testimony, you would
limit heirship to tribal members?
Mr. Berrey. You have to understand that I come from a tribe
that does not have a blood quantum. It is lineal descendancy. I
am in agreement with Sally in that regard.
The Chairman. The Census Bureau last time estimated over
4.4 million Americans claim to be of Indian ancestry. The
Bureau says that is 2.2 million. There is a big disparity of
about 2 million people out there who say they are Indian.
About 15 or 18 years ago Senator Kyl and I revised the
Indians Arts and Crafts Act. We were on the House side. He was
from Arizona. We did some hearings on that to try to define who
should be legally Indian from the standpoint of being able to
market their arts and crafts as legitimately Indian rather than
imported from Taiwan.
We had one man that was 100 percent Indian. He was eight-
eighths. Every single one of the eights was of a tribe that
required that you had to be 25 percent or more. You had to have
one grandfather and grandmother as a full-blood to be included
in the roll.
Here was a guy that was 100 percent Indian. He could not
get on anybody's roll. I just mention that to emphasize how
complicated the whole roll system is. We know for a fact that
there are other people on rolls, because they were put on rolls
during a time when there was not very much detail given to
authenticating. There are people on the rolls now who are not
Indian at all. But legally they are Indian, as you probably
know.
I do not know how to fix that. It is a very big complicated
problem that we are having with Interior now. In fact, in the
last Administration, they wanted to put a moratorium on any
more tribes being enrolled until they found a better way of
determining who is and who is not Indian. I do not know if
anybody knows since each tribe determines their own membership.
This is something with fractionated land the Cobell case
and so on that is going to get worse. With the advent of so
much casino money, we are getting more people that want to be
enrolled as tribes, as you probably know. Sometimes there are
only two or three people and they want to have their own tribe.
That is really not uncommon now.
We had a disagreement between some family members here in
front of the committee about 6 months ago. After 1 hour of
listening to the attorneys on both sides, and the people on
both sides, I asked them how many members there were in the
tribe and they said ``12.'' Just recently one member was found
in California who did not know she was Indian. She was the only
one left of her tribe who is going to be included in the new
millionaire list since she has already signed a deal with some
casino development company to build a casino for them, but she
will be the front, so to speak.
The advent of all the money that is now out there floating
around in casino businesses, certainly complicated how we look
at enrollment. Believe me, I do not have the answer and I do
not think anybody else does either, that is fair and impartial
and gives those people who are really Indian an opportunity to
be reinstated if they want to and still have a system by which
the people who want to be Indian because it is convenient or
lucrative, making sure that they do not. We know the answer to
that.
John, do you favor a system that relies on purchase of the
shares by either the tribe or the government for tribal members
only?
Mr. Berrey. In Oklahoma there is a lot of undivided
interest owned by non-Indians that is interrelated and
restricted fee with fee-simple land. I think those people
should have the opportunity as well to have their land
purchased by the tribe.
The Chairman. Was it your testimony that mentioned 3,000
members in an 80-acre piece of ground?
Mr. Berrey. Yes, sir.
The Chairman. That sounds like something out of control by
``pi squared''. I do not know how in the world we ever get to a
point to resolve it. It sounds to me like it is getting almost
too big to do anything about. If we wait another generation or
two, it might be so out of control that we might not be able to
do anything about it. Would you like to comment on that?
Mr. Berrey. There are two ways to look at it. It is either
your cup is one-half full or one-half empty. I think if you sat
down and really looked at that piece of property, a lot of
those people, like Mr. Nordwall said, have multiple
fractionated interests and multiple allotments. Many of them do
not really care about it. They do not get much income. It is
more of paying for them.
I think if someone would actually sit down and go through
the work and the process to contact them and give them the fair
market value and assured them that it is helping protect the
land base of the tribe, that their families are members of or
once were members of, then it is not as big a problem as it
really sounds. I think money talks. If it is targeted right, it
will work.
The Chairman. I have one last question. You probably know
from hearing me speak in the committee before that I am on
record as favoring some kind of a voluntary buy-back program or
an opt-out program. The Cobell case and the fractionated lands
are certainly related. Do you support that concept?
Mr. Berrey. I do support any concept that tries to bring
some closure to Cobell. My tribe, for instance, is suffering
worse from Cobell than probably anybody that is working at the
DOI or any members of the attorneys for the plaintiffs' class.
Last quarter, 80 percent of the FTEs in realty were spent
on document production for litigation. That means that 80
percent of the money that my tribe relies on for realty
functions, like economic development, getting land put into
trust, acquisitions--all that is not happening.
The two parties that are there say they represent me.
Stephen Griles gets his paycheck every week or every 2 weeks. I
think Dennis Jengold has been getting his check. The people
that both of them represent are not getting anything. I think
this era of throwing rocks at the Department of the Interior
needs to come to an end. We need to try to resolve this using
an open mind. I think that the plaintiffs' counsel need to have
full input in any kind of solution. I just do not see them
coming to the table right now. It is very frustrating.
The Chairman. I tend to agree with you. I do not think it
is in their best financial interests to come to the table. I
have been criticized a couple of times for saying that. We have
Indian people out there who are dying, waiting for fairness and
waiting for the money the Federal Government owes them. We do
not have it to them yet because of all this ongoing litigation.
Senator Inouye and I and Mr. Griles met the other day. I
think we are going to frame up a bill that does let people opt
out of that Cobell decision.
Mr. Berrey. My tribe currently has a huge piece of
litigation in the Northern District of Oklahoma. Our land once
had the largest mining operations in the United States. It is
now the home of the largest superfund site in the United
States.
Even though we are in litigation, we have stayed our
lawsuit. We have actively pursued alternative dispute
resolution with the Department of the Interior and the
Department of Justice.
We believe that because of Cobell, there are better ways to
solve these problems than just burning down the house. We are
willing to do everything that we can to be open-minded and work
with the Department of the Interior and the Department of
Justice. Stephen Griles has been very impactful on our attempt.
We are the only tribe in the United States currently involved
in a formal alternative dispute resolution process.
The Chairman. Thank you.
Mr. O'Neal, as I understand your testimony, your children
are not eligible to enroll. Under the 2000 ILCA amendments, you
can only leave them a life estate in the trust land portion of
your land. You could put that land in fee status; is that
correct?
Mr. O'Neal. That is right.
The Chairman. Why would you oppose to be putting it in fee
status as opposed to trust status? Is it because of
jurisdictional problems, or taxes, or something else?
Mr. O'Neal. Yes; taxes on our land. I do not pay them now.
I want that to continue as my land base on my ranch. The kids
ought to have that.
The Chairman. Is that a common situation on your
reservation?
Mr. O'Neal. Yes; it is.
The Chairman. What would you guess is the number of people
who are in the same position that you are at Wind River?
Mr. O'Neal. At Wind River right now, I think there were 105
who filed for fee patents right away.
The Chairman. How many?
Mr. O'Neal. I think 110, or somewhere around in there, that
filed automatically. Those are just families that I know of.
The Chairman. Well, if changes are not made in the ILCA
amendments, and if they go into effect, have you thought about
what you are going to do so that your children can inherit your
whole ranch?
Mr. O'Neal. That is what I am saying.
The Chairman. Are you familiar with a man named Abraham
Spotted Elk up there?
Mr. O'Neal. No.
The Chairman. Mr. Stainbrook, you talked about a private
fund. We visited with it a little bit about it the last time
you were here. Is this in some way going to rely on Federal
funds, a private fund? You mentioned a land capital fund?
Mr. Stainbrook. I think there is the potential that Federal
funds will be needed to at least subsidize those deals that
won't cash flow immediately. On the other hand, once the
initial capitalization was put in place at Rosebud, that was
all that was really needed to kick it off.
One of the drawbacks in not having some Federal dollars, at
least in the initial capitalization to cover those subsidies,
is that the pool grows much slower. As you have pointed out,
all of the discussion today has been that if something does not
happen on a scale now, this thing is over.
The Chairman. Your testimony mentioned the Native American
Bank as perhaps becoming involved someday in land
reconsolidation. Have they been involved in it at all yet?
Mr. Stainbrook. We have been working with the Native
American Bank, CDC, the Community Development Corporation. If
you will look on the back of the written testimony, there is a
rough schematic there of bringing in the CDFI to help with
affordable housing financing. That is the role that CDC will be
playing.
The Chairman. All right. I will look at that.
You also mentioned $1.25 billion perhaps to purchase all
fractionation lands. Who did that analysis for you or for your
committee?
Mr. Stainbrook. Our consultant, Gerald Sherman, did that
for us.
The Chairman. Do you have a map for that?
Mr. Stainbrook. I could probably get you one of those.
The Chairman. I would appreciate it if you would.
Sally, you gave me so much extensive testimony between your
written comments and the little scribblings I have made. I am
not quite sure where to start. You are certainly a wealth of
information.
Have you worked with other groups or organizations that
have been working on these same problems that we are
discussing?
Ms. Willett. Yes.
The Chairman. Did you reach any kind of a consensus with
those other groups?
Ms. Willett. Yes; that a uniform probate code is essential.
It has to be simple and usable. It has to be fair.
The Chairman. Have you reached any accord with tribal
organizations?
Ms. Willett. We are doing that now with NCAI and individual
tribes who have members attend. There is a larger working group
that is a consolidated group of multiple interests.
The Chairman. I understand from your testimony that you
think that S. 550 is too complicated and might be difficult to
understand by the average person; is that correct?
Ms. Willett. It is too difficult to understand by the
average lawyer who specializes in the subject matter.
The Chairman. Okay. Then hopefully you will offer some
suggestions. I know you did in your testimony. You will
continue to work with us to try to make it a little easier to
understand.
Your organization advocates the right of lineal descendants
to inherit land in trust status even if the descendants are not
members or even eligible for membership in an Indian tribe.
Under new Federal law, that would deem them to be Indians
for the purpose and require the Secretary to manage the land.
Does that create jurisdictional problems?
Ms. Willett. No, sir; it did not. From 1887 to 1934, there
had never been a membership requirement. Then, from 1934 to
1980, membership was only for IRA tribes as to Indian wills.
These jurisdictional issues that we are seeing are coming
from the aberrant strain of Indian law that is being crafted by
the Supreme Court. We are in free-fall now. Essentially, part
of our proposal is having the Congress declare fractionation a
preempted subject matter. When you balance State and tribal
interests, tribes lose. We want consolidation declared a
preempted subject matter so that we can keep all the
inappropriate interests out. I agree that consolidation has to
include the interest of non-Indians. Otherwise, it is
incomplete.
The Chairman. Your organization is on record as stating
that the pilot program being carried out by the Department,
``Provides for random purchase of fractionated lands from
willing sellers.''
How should the program work if it is not based on willing
seller provisions?
Ms. Willett. I was speaking with Gila River about this. It
is not the willing seller side of it. It is the random
selection. The ILCA Act of January 12, 1983, provides for land
consolidation plans. Tribes today have not really become
heavily involved in true ILCA consolidation plan planning. They
need to.
Then, what they would do is possibly target zoned areas of
importance rather than willy-nilly buying little tiny interests
everywhere that might not produce a return that would help them
pay it off.
What we are saying is do consolidation planning as provided
by ILCA and make it real. Right now the pilot project is
focused on particular areas, which I agree is appropriate. But
acquisition is random. We think that people need to look at it
as a genuine exercise.
The Chairman. Okay. Thank you. I appreciate it. I have no
further questions, but I may submit some in writing as others
may, too. If you could answer them, we would appreciate it.
We will keep the record open for 2 weeks. If anybody in the
audience would like to provide comments in writing, if you will
submit that to the committee, we will also review that and
include that.
The Chairman. With that, thank you once again. This hearing
is adjourned.
[Whereupon, at 11:41 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
=======================================================================
A P P E N D I X
----------
Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Wayne Nordwall, Director, Western Region, Bureau
of Indian Affairs, Department of the Interior, Washington, DC
Mr. Chairman, Mr. Vice Chairman and Members of the Committee, I am
pleased to be here today to provide the Administration's views on S.
550, a bill to amend the Indian Land Consolidation Act to improve
provisions relating to probate of trust and restricted land. The
Department commends the efforts of this Committee in the work that you
and your staff have done over the years concerning the trust reform
activities. We appreciate the support you have provided us. However,
much work remains to be done.
While we support many of the concepts embodied in S. 550,
specifically the creation of a uniform probate code, we would like to
work with you to further refine the bill. In particular, we believe
more work must be done on the bill to ensure that the probate
provisions of ILCA are clear, concise, predictable and comprehensive.
The history of fractionation legislation has been that key provisions
are deleted because of minority opposition. Hard decisions must be made
that will benefit the majority of Indian country.
Addressing the many problems associated with fractionated lands is
a high priority within this Administration. We must find better ways to
consolidate Indian land ownership in order to restore full economic
viability to Indian landowners of their assets, and to reduce the
tremendous administrative burden for the management of these assets. In
fact, the President's fiscal year 2004 budget proposal includes a
request for $21 million for Indian land consolidation, an increase of
$13 million.
We welcome the opportunity to work closely with the Committee to
craft legislation that would better meet the dual goals of probate
reform and the consolidation of fractionated land.
The Department has responsibility for 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 $226 million per year are collected for
approximately 230,000 individual Indian money accounts, and about $530
million per year are collected for approximately 1,400 tribal accounts.
In addition, the trust manages approximately $2.8 billion in tribal
funds and $400 million in individual Indian funds.
There are approximately 230,000 open individual Indian money
accounts, the majority of which have balances under $100 and annual
transactions of less than $1,000. Interior maintains thousands of
accounts that contain less than $1, and has a responsibility to provide
an accounting to all account holders. 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 accounts do not apply to the Indian trust.
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 approximately four million owner interests in the 10 million
acres of individually owned trust lands, a situation the magnitude of
which makes management of trust assets extremely difficult and costly.
These 4 million interests could expand to 11 million interests 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 0.000002 percent of the whole interest.
In 1983 and 1984, 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 2 percent. The United States Supreme Court held the
escheat provision contained in ILCA as unconstitutional. See Hodel v.
Irving (481 U.S. 704 (1987)) and Babbitt v. Youpee (519 U.S. 234
(1997)). 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.
The 2000 amendments established uniform rules for the descent and
distribution of interests in allotted lands. The amendments contained
provisions preventing lands from being taken out of trust when
inherited by non-Indians by creating a life estate for those
beneficiaries with a remainder in interests going to close Indian
family heirs (with conditions depending on the percentage of interest)
or, if none exist, the tribe having jurisdiction over the parcel. The
legislation also contained provisions for the consolidation of
fractional interests. Tribes and individual allotment owners can
consolidate their interests as well as purchase, sell, or exchange
them. The legislation also enhanced opportunities for economic
development by laying out a formula specifying the percentage of owners
of fractional interests that must consent to leasing agreements.
Finally, the amendments extended the Secretary's authority to acquire
fractional interests through the Indian land acquisition pilot program,
establishment of an Acquisition Fund, and the authorization of annual
appropriations to help fund the acquisitions. Under ILCA, the Secretary
is required to certify that she has provided certain notices about the
probate provisions of the 2000 amendments before they become effective.
There is a clear need for probate reform. As it currently stands,
the Department applies 33 different State laws when probating
individual trust estates. By using 33 separate State laws, there is a
lack of consistency and predictability in administering probates in
Indian country. In addition, we must probate for all interests
regardless of the size of the account. For example, we have to probate
a decedent's estate (at an average cost of $1,400 a probate) and
identify and locate all heirs regardless of the value of the estate. As
of December 31, 2002 there were 1,522 open estate accounts where the
funds derive only from per capita or judgment payments (and not income
from land interests) with a combined, total value of $7,194. This
averages out to under $5 per account.
Last Congress, former Assistant Secretary Neal McCaleb testified in
support of the enactment of a uniform intestate code for trust and
restricted estates. However, because of the complexity that S. 550
would build into the proposed uniform code, we would like to work with
the Committee to try to simplify these provisions. The Department's
employees are expected to administer the provisions of ILCA and to
encourage tribal members to draft wills, and eventually to probate
those wills and estates. Therefore, the provisions must be clear.
The benefit to the heirs of a uniform probate code for trust and
restricted estates is that the same law will be applied to all the
trust and restricted estates of the decedent no matter where the real
property is located. A uniform intestate probate code will allow the
entire estate to be probated under one set of laws, and those laws will
be the same throughout the United States. The Indian tribes and
individuals holding interests in allotted lands in the 33 States will
benefit from the clarity, consistency and predictability of using a
uniform probate code. A uniform probate code, built upon current State
probate practices and the Model Uniform Probate Code, will help the
Department decide cases and issue orders in a more timely manner,
resulting in fewer appeals. If a uniform probate code is enacted, the
Department will no longer need to research the laws and legal decisions
of 33 individual States. It will therefore take less time to issue an
order determining heirs. Finally, a uniform probate code will serve as
a model for tribes to develop their own tribal probate codes.
The Indian Land Consolidation Pilot Program is a high priority for
this Administration. The President's 2004 Budget requests $20.98
million for Indian land consolidation through the acquisition of
fractionated ownership interests. This $13.1 million increase will
support our plans to expand the program to new Indian reservations.
The BIA has been conducting the pilot program since fiscal year
1999 in the Midwest region. These pilot projects have successfully
demonstrated that large numbers of owners are willing to sell
fractionated ownership interests, and that a purchase program can be
administered at a reasonable cost. When the projects started, there
were approximately 87,000 interests on three reservations. To date, we
have purchased over 40,000 interests on those three reservations.
However, because of the runaway growth of fractionation we still have
the same number of outstanding interests as when the projects began.
Without this pilot program, the number would be far higher than 127,000
since the interests purchased would have further fractionated. As
reflected in the Administration's Program Assessment Rating Tool (PART)
review, the pilot program has taught valuable lessons about the need to
target purchases to maximize the return of the land to productive use
and to reduce the number of Individual Indian Money (IIM) accounts.
This year, the Department is developing a strategic plan to guide
program expansion, target purchases to reduce future costs of trust
administration, and enhance tribal economic development opportunities.
A national program office has been established to coordinate and
oversee the program expansion and standardize business practices, which
may use contractual arrangements with Tribes or private entities to
purchase individual interests on behalf of the Department. The fiscal
year 2003 budget, together with carry-over balances, will provide
approximately $20 million for the BIA to put in place the necessary
infrastructure and contractual arrangements to support our planned
expansion in fiscal year 2004. Our strategic plan, including
legislative proposals, will be provided to the Committee later this
summer.
Last year, the Department held a 2-day meeting of a subgroup of the
DOI/Tribal Task Force on Trust Reform to address the Indian Land
Consolidation Act and to encourage a dialog on potential solutions to
the fractionation issue. Participants were encouraged to develop
creative ideas, and a number of possible legislative and administrative
solutions were discussed. Many of the ideas developed merit further,
serious consideration by the stakeholders.
To provide a forum to continue this dialog, the Department
published a notice in the Federal Register on April 22, 2003 requesting
nominations for Tribal officials to participate in a Working Group on
Land Consolidation (Working Group). We are seeking participation by
Tribal officials from tribes with highly fractionated lands or those
who have a strong interest in resolving the problem of fractionated
lands to discuss the problems caused by fractionation and to examine
the universe of possible solutions. This Working Group will meet
throughout the summer. We anticipate that the Working Group will
provide important input on recommendations for legislative action to
address solutions to fractionation.
Thank you, Mr. Chairman, Mr. Vice Chairman and Members, for taking
the lead on these important issues for Indian people and the trust
reform. This concludes my statement. I will be happy to answer any
questions you may have.
______
Prepared Statement of John Berrey, Chairman, Quapaw Tribe
Mr. Chairman and distinguished members of the committee thank you
for the invitation to speak to you today on such a critical problem in
Indian country. My name is John Berrey, I am the Chairman if the Quapaw
Tribe of Oklahoma and Vice Chairman of The Inter-Tribal Monitoring
Association. I have been asked to describe the current problems
regarding Indian probate and the complex interrelationships involved in
the cash, land and resource management processes administered by the
Department of the Interior.
I have had the great opportunity to be part of a historic project,
under the direction and guidance of Secretary, The ``As Is'' Business
model now complete, identified in detail the current DOI Trust Business
Processes. The processes that are the subject of this scientific
analysis are:
Accounting (collections, management and distribution
of cash)
Appraisals (ordering, practice, reporting)
Beneficiary Service (Tribal and Individual contact
with DOI)
Cadastral Survey Services (identification, recording
and management of land boundary information)
Probate (case preparation, adjudication, case closing)
Surface Asset Management (lease development,
compliance, enforcement) Timber, agriculture, commercial
businesses, surface minerals
Subsurface Management (lease development, compliance,
enforcement) Oil, gas, mining
Title (acquisitions & disposals, rights of ways, title
management)
``As Is'' Overview. I was the leader of the five Tribal
Representatives selected by last years Tribal Task Force working with a
project team with DOI process experts and contract facilitators from
EDS. I traveled over 200 days last year crossing the country
interviewing nearly 1,000 individuals involved in all the activity that
is Indian Trust business management and documenting in detail the work
that is performed at every level, every day. We interviewed employees
from BIA, MMS, BLM, OTFM, OHA, Direct Service Tribes and tribes with
638 contracts, and Self-governance tribes.
We interviewed every level of staff from all 12 BIA Regions,
numerous BIA agencies and several Tribal Reservations. We talked to
clerks, line officers, managers and directors, if an office had any
activity regarding Indian Trust Management we studied it in some form.
This intense project has had the following benefits:
Established a comprehensive understanding of current
Trust business operations
Documented variances among geographic regions, and
their causes (e.g., due to Federal, tribal, state or local
laws, treaties, court rulings, local practices)
Identified current issues and opportunities for
improvement so as to provide a basis for a ``To-Be'' process
reengineering of the Indian Trust.
Over the decades Indian tribes have witnessed a multitude of trust
reform initiatives, reorganizations, plans, meetings, summits, work
groups, task forces, computer systems, software, out sourcing
contracts, and other efforts to fix the problems with management of
Indian trust funds. To date, none of these efforts have proven
successful. The reason, we believe, is that we have been seeking quick
fixes rather than focusing on the root of the problem. And the root of
the problem is: The fractionation of title ownership is making the
system impossible to manage. The General Allotment Act of 1887 was
designed to destroy tribal governments, that did not work and it is
time we reverse the act and protect and restore tribal land bases and
jurisdiction.
The DOI is pretty much a land management entity and any land title
and ownership information system is the most fundamental aspect of the
trust system. DOI cannot accurately collect and distribute trust funds
if it does not have correct information about the beneficial owners of
the trust assets. This is the starting point for any effort to fix the
trust system. Currently, the BIA is using as many as 67 different
ownership title systems in the various Land Title Record Offices,
regional offices, agencies and tribal locations around the country,
both manual and electronic. There is TAAMS, LRIS, MADS, GLADS, TFAS and
several individualized spreadsheets and other software systems, the sad
thing is over 30 percent of all agencies, still use the old paper 3X5
A&E cards.
At my agency, The Miami Agency in Miami, Oklahoma they update Title
once a year. They order Pizza and the whole gang sits around and
updates these little cards. Each night a little old lady carries the
records back to the closet, God forbid she drops the box and our
records shoot across the floor.
These systems contain overlapping and inconsistent information. The
systems are largely ``stand alone'' in that they do not automatically
reconcile the ownership information in the agency offices, in tribal
records, or in the lease distribution records that are used for daily
operations. Because records management standards and quality control
procedures are lacking, there is no assurance that title records are
accurate. These inaccuracies result in incorrect distribution of
proceeds from trust resources, questions regarding the validity of
trust resource transactions, and the necessity to repeatedly perform
administrative procedures such as probate. Consequently, a large
backlog of corrections has developed in many of the title offices, and
this has compounded the delays in probate, leasing, mortgages, and
other trust transactions that rely on title and ownership information.
In turn, each of these delays compounds the errors in the distribution
of trust funds.
What does this mean? I like to describe what I call the Haskell
effect. If a Navajo man goes away to Haskell Indian School and meets a
Woman from Osage, they marry and move to Minneapolis where they adopt a
couple of young children from Northern Cheyenne and they all get killed
in a car wreck. Besides the obvious tragedy the added problem is the
DOI has no way to know that there is land in three separate regions
managed with systems that do not communicate. It creates a nearly
impossible Probate case preparation nightmare.
Cleaning up the ownership information and implementing an effective
title system that is integrated with the leasing and accounting systems
is a primary need for the Indian trust system. However, the BIA will
never be able to complete this task if Congress does not address the
fractionation problem. In 1998, just 5 years ago, the BIA reported that
it was managing just over I million fractionated ownership interests on
trust lands in Indian country. Just last month, the BIA reported that
it is now managing over 4 million ownership interests. This explosion
in the number of ownership interests comes when the land passes from
one generation to the next generation of children by the automatic
operation of state intestacy laws.
The fractionation problem has already grown wildly out of control.
But if Congress fails to act now to address it, it will continue to
compound.
Even if we built a wonderful computerized system to keep track of
all the millions of ownership interests, we would soon have to scrap it
and build a newer, bigger one. In a couple of generations we could have
billions of interests. How many people, how much time would it take to
keep track of all of those interests?
The As-Is Study and its findings show that we need to focus our
trust reform efforts on the title system. That means that Congress
needs to focus on reducing fractionation, as the single most important
thing in order to address trust reform:
My recommendations would be:
No. 1. We have to respect the property rights of the individual
owners. But within this framework, we have to do everything possible to
encourage the consolidation of Indian land. That should be the single
guiding principle for judging each and every provision in S. 550. Does
it help us consolidate land and reduce fractionation?
No. 2. The tribes are making huge efforts on consolidation. This
bill needs to make sure that tribes have the tools to write their own
probate codes.
No. 3. Indian landowners must have the right to devise their land
to whomever they want, or they must be compensated if they are not able
to. The Uniform Federal In testate Code that is proposed in S. 550
could be a giant step forward to reduce fractionation but it needs
focus. I would like to see us limit the in testate provisions to
immediate family who are members of the tribe, and if there are no such
members, then it should pass to the tribe itself.
No. 4. Promote Estate Planning; provide adequate funding and
training to get individuals to write wills. 95 percent of Indians die
without a will.
No. 5. Put adjudication under one roof. Create an Office of Indian
Probate made up of Indian Probate Judges (IPJ's) and Attorney Decision
Makers (ADM's) removing the Administrative Law Judges (ALJ'S)
No. 6. Finally, and perhaps most importantly, Congress should beef
up the Indian Land Consolidation Pilot Project and make it permanent.
In closing, I would like to pledge my assistance to the Indian
Affairs Committee and its members in any issues related to the complex
management of the Indian Trust, if it is fractionalization, settlement
of mismanagement claims, or historical accounting, I can provide an
clear science-based description and understanding of the multi-agency
cash and resource management provided to Native people by the United
States.
Thank you
______
Prepared Statement of Ben O'Neal, Member, Shoshone Business Council,
Eastern Shoshone Tribe
Mr. Chairman members of the committee. My name is Ben O'Neal and I
am a member of the Business Council of the Eastern Shoshone Tribe of
the Wind River Reservation. It is with great pleasure that I present
this testimony today on behalf of the Eastern Shoshone Tribe. Chairman
Vernon Hill regrets that he could not be here today, but pressing
issues kept him at home.
The Eastern Shoshone Tribe of the Wind River Reservation is a
federally recognized Indian tribe with approximately 3,500 members. The
Wind River Reservation is located in central Wyoming, and is home to
two tribes, the Eastern Shoshone and the Northern Band of the Arapaho.
There are also approximately 25,000 non-Indians living within the
exterior boundary of the Reservation.
Many members of the Eastern Shoshone Tribe are deeply concerned
with the fact that they may not able to leave their land to their
heirs. Provisions within S. 550 address this problem, and it is for
this reason that we strongly support its passage.
Title to land within our Reservation is held in various ways,
including in trust, in fee patent, as tribal land, or as land held
jointly by the Eastern Shoshone and the Northern Arapaho Tribes. Our
primary concern today is with property held in trust for individual
Indians, and I would like to use myself as an example of one way in
which S. 550 would bring relief.
In 1966, I married my wife, who is non-Indian. We were both from
ranching families, and in 1972, we started acquiring land and building
our own ranch. The first 200 acres we purchased is held in fee patent.
It is located on the Wind River Reservation and contains the home site
where my family and I have lived for more than 30 years. We also lease
several allotments adjoining this property, allowing us to run enough
cattle and operate a ranch in such a way as to have derived our living
solely as ranchers.
In 1989, we purchased an 80 acre tract of trust land from an
individual Indian. We paid fair market value for this property. This
tract adjoins our patent fee ground and added significantly to our
ranch. In 1994, my wife and I purchased 240 acres of patent fee land
from our neighbors to allow for expansion as our son and daughter
expressed an interest in being a part of the ranch operations. At the
same time, we also purchased 200 acres of adjoining Indian trust lands
from multiple Indian heirs. These lands are all contiguous, and even
contain a creek that runs year round, adding further to the value of
our property.
Through additional acquisitions, I currently own 1,200 acres of
property within the Wind River Reservation. Half of this property is
held in trust; the other half is held in fee. I paid fair market value
for all of it. Under current law, as a member of the Eastern Shoshone
Tribe, and as a landowner, I can only will my trust property to an
Indian or to my Tribe; but I would like to leave it to my family.
I am not alone in the fact that my wife and my children are not
members of the Eastern Shoshone Tribe. Despite the fact that they have
stood by me over the years, and have helped our ranch become a success,
current law only permits me to leave my trust property to them as a
life estate. I find this unacceptable. My only other option is to
remove the property from trust status and place it into fee; something
that I do not wish to do.
Individual Indian landowners, such as myself, should have another
option. We should be able to determine to whom we leave our land.
Indian landowners should have the same right as others within our
country to keep property within our families for as long as we choose
to do so. This right should not be based upon race or political
distinction, just as it should not be based upon religion, or any other
similar factor. I support the passive trust provisions within S. 550
because they allow me, and all others like me, to ensure that property
stays within our families for a duration of our choosing.
Let me be sure to point out that the Eastern Shoshone Tribe is not
seeking to impose this option on everyone. If an Indian landowner wants
to give their trust property to the Tribe, they should be able to do
so. Our position simply is that there should be an option added to
those that currently exist; that we should be able to choose who gets
our land.
In the future, if my descendants determine that it is in their best
interest to sell this property, the Tribe should be given a period of
time in which to exercise a first right of refusal. They should,
however, be required to pay fair market value for it, just as I did.
This raises another concern we have with existing law. Currently,
there is little incentive for the Tribe to pay anything of value for
trust property. The Tribe realizes that for individuals such as myself,
who are restricted to leaving trust property to heirs as a life estate,
it is only a matter of time before the Tribe comes into possession of
the property, with no payment at all. This eventual outcome serves also
to discourage use and improvement of the land. Why would I invest
hundreds, even thousands, of dollars to improve the land when I know,
in the end, I will not be compensated for my investment. Again, I find
this unacceptable, and am pleased that S. 550 works to resolve this
issue as well.
As an aside, I find it important to mention our concern with the
Tribe's ability to purchase trust property, even if they wish to do so.
While purchases on a limited basis would be feasible, financial
assistance would be necessary for the Tribe to make larger purchases.
We encourage the Congress to ensure funds are available for this
purpose.
I also support the idea that should the Tribe not wish to pay fair
market value for trust property, the option should be available to sell
it to someone who is. It is important to note that this should not be
viewed as a reduction of Tribal lands. Many people hear the term
``trust property'' and they think of ``tribal property.'' This,
however, is not the case. My property is trust property. It is held in
trust for me, Ben O'Neal. It is not Tribal property. I have spent my
entire life working and saving to buy what I have; to make a life for
myself and for my family. I should have the right to determine to whom
this property is left. My descendants and I should have the right to be
dealt with fairly.
On behalf of the Eastern Shoshone Tribe, I again thank you for the
opportunity to present testimony today and I encourage passage of S.
550.
______
Prepared Statement of the InterTribal Monitoring Association
Good Morning, Mr. Chairman, Vice Chairman and honorable members of
the Committee. I am honored to be here on behalf of the 54 federally
recognized Tribes that comprise the InterTribal Monitoring Association
(ITMA). ITMA was established in 1990 to monitor the trust reform
efforts of the United States Department of Interior. In the last year
and a half, ITMA has been actively involved in the Tribal/DOI Task
Force, has drafted trust reform legislation in coordination with NCAI
and has entered into a dialog with DOI to develop a settlement process
for Indian Tribes who have claims against DOI for trust fund and asset
mismanagement. ITMA has been actively monitoring S. 550 as the
organization believes that trust reform cannot effectively occur
without addressing tribal land issues including fractionated ownership
and consolidation of tribal and individual lands. Further, the
continued diminishment of tribal lands results in the continual
diminishment of tribal governance authority.
The vast array of problems created by fractionated land ownership,
as a result of the General Allotment Act of 1887 and individual Tribal
Allotment Acts, for Tribes, individuals and the DOI have been well-
documented. The Indian Land Consolidation Act (ILCA), attempting to
curtail the devastation of the allotment era, was amended in 2000 to
address the significant amount of Indian land passing out of trust
during the probate process. The 2000 amendments to the ILCA limited
non-Indian heirs and beneficiaries to life-estates only. However, this
limitation resulted in an unexpected backlash of individuals converting
trust lands to fee lands in order to devise more than life-estates to
non-Indian spouses and children.
S. 550 attempts to further amend the Indian Land Consolidation Act
to allow trust landowners to devise more than life-estates to non-
Indian heirs and devisees through the creation of a ``passive trust''.
A passive trust is a new form of land ownership, a creative remedy to
the life-estate restriction. The passive trust provision would allow
land to remain in trust, free from state tax liability, remain within
tribal jurisdiction and remain within the BIA probate system. A holder
of a passive trust would be able to lease the land without BIA
approval, would be able to mortgage land without BIA approval, could
devise the land to the Tribe or to Indians or other eligible
descendants of the original holder of the land. In essence, the intent
of the passive trust is to retain the land in trust yet allow the
holder to manage the land as if it were fee. The passive trust is
proposed as an alternative to trust landowners converting trust lands
to fee. For Tribes, the passive trust would prevent a diminishment of
landbase acreage totals.
However, numerous unanswered questions arise about the passive
trust concept. First, the passive trust is a newly created form of land
ownership, no precedent for such a form of long-term ownership exists.
Thus, no data regarding passive trusts exists to allow a knowledgeable
assessment of problems that may occur. Second, serious questions arise
about tribal jurisdiction over the non-Indian holders of a passive
trust. Although the land is to remain within tribal jurisdiction, the
Tribe's jurisdiction over the non-Indian holder of the passive trust is
questionable. Third, the BIA currently has welldocumented problems
tracking current owners of trust land including joint tenants of land,
restricted fee holders, and other forms of ownership. A question arises
regarding how the BIA will track non-Indian holders of passive trusts
to keep the land within the BIA probate system. Although the BIA would
not have approval obligations for passive trust uses, it would have to
record them to effectively probate the land. The general complexity and
costs of recording holders of passive trusts, including the
encumbrances of the land and disposition, render the passive trust a
questionable alternative. Further, no guarantee exists that states will
give non-Indian holders of passive trusts a tax exemption. Finally, a
concern exists that the passive trust may devalue Indian land since no
investigation has occurred regarding whether a title company would
issue title insurance if a passive trust was in the chain of title.
Similarly, any taxation issues that are litigated for any length of
time may result in a devaluation of Indian land .
Although the passive trust concept appears a creative remedy to the
problem of land passing out of trust status at probate when the spouse
and children of the Indian land owner are non-Indian, many questions
exist about its viability. Until more of the questions raised above can
be answered, ITMA cannot support the passive trust concept. ITMA has
been focused on the improvement of DOI land title and recordation
systems as a starting point for effective trust reform. A new form of
land ownership that would complicate the recordation process further
causes concern for ITMA.
S. 550 promotes the development of a uniform probate code for use
in Indian country. The concern has been the application of state laws
to Indian probates and with different states, different laws apply,
resulting in no uniformity throughout Indian country. However, the
reality is that most states have adopted the Uniform Probate Code,
thereby probating cases uniformly from State to State. The real problem
appears to be that the application of the State adopted Uniform Probate
Code does not protect Tribal land bases when an Indian dies intestate
and when no restrictions exist as to disposition of land by will.
Therefore, the application of the State laws result in further
fractionation and land passing out of trust either by intestacy or by
will. A uniform probate code for Indian country will protect Tribal
land bases only if it adopts the above questionable passive trust
concept or limits the devisees and heirs to enrolled Indians. Frankly,
since the passage of ILCA, few tribes have developed probate codes with
disposition and intestacy restrictions that would protect Tribal land
bases. If Indian country accepts the passive trust concept or is
willing to limit heirs and devisees to enrolled Indians, then a uniform
probate code for Indian country would be viable.
S. 550 provides a mechanism to partition undivided fee interests
for purchase by Tribes. Currently, no process exists for a Tribe to
request that the BIA partition out undivided fee interests since the
BIA has no responsibility to manage fee interests. The undivided fee
interests limit Tribes from encumbering the land and selling or
purchasing other undivided:interests. The provision in S. 550 would
allow the fee interest to be partitioned out from the other undivided
trust interests promoting a purchase of the fee interest. Further,
partitioning the fee interest would allow the Tribe or individuals to
encumber, sale or purchase the remaining trust interests. The proposed
language in S. 550 is necessary to promote land consolidation via
tribal or tribal member purchase of fee interests.
In conclusion, ITMA believes that tribal land consolidation is
critical to trust reform. ITMA is unable to support the complex passive
trust concept and believes that Tribes must respond to heir and devisee
limitations before a uniform probate code for Indian country will be
viable. ITMA does support the language in S. 550 for partitioning
undivided fee interests as a necessary step to land consolidation.
Finally, ITMA believes the most viable solution to land consolidation
is sufficient funding for Tribes to purchase the fractionated
interests. In addition to the allotment of Indian lands, Indians were
not allowed to devise lands through wills until 1910, thereby creating
the framework for the fractionation problem. Sufficient funding should
be available for Tribes to purchase undivided interests at fair market
value. The current BIA budget falls short of a realistic attempt to
address the fractionation problem. More funds for this purpose are
critical for land consolidation and true trust reform.
Thank you.
[GRAPHIC] [TIFF OMITTED] T7046.001
[GRAPHIC] [TIFF OMITTED] T7046.002
[GRAPHIC] [TIFF OMITTED] T7046.003
[GRAPHIC] [TIFF OMITTED] T7046.004
[GRAPHIC] [TIFF OMITTED] T7046.005
[GRAPHIC] [TIFF OMITTED] T7046.006
[GRAPHIC] [TIFF OMITTED] T7046.007
[GRAPHIC] [TIFF OMITTED] T7046.008
[GRAPHIC] [TIFF OMITTED] T7046.009
[GRAPHIC] [TIFF OMITTED] T7046.010
[GRAPHIC] [TIFF OMITTED] T7046.011
[GRAPHIC] [TIFF OMITTED] T7046.012
[GRAPHIC] [TIFF OMITTED] T7046.013
[GRAPHIC] [TIFF OMITTED] T7046.014
[GRAPHIC] [TIFF OMITTED] T7046.015
[GRAPHIC] [TIFF OMITTED] T7046.016
[GRAPHIC] [TIFF OMITTED] T7046.017
[GRAPHIC] [TIFF OMITTED] T7046.018
[GRAPHIC] [TIFF OMITTED] T7046.019
[GRAPHIC] [TIFF OMITTED] T7046.020
[GRAPHIC] [TIFF OMITTED] T7046.021
[GRAPHIC] [TIFF OMITTED] T7046.022
[GRAPHIC] [TIFF OMITTED] T7046.023
[GRAPHIC] [TIFF OMITTED] T7046.024
[GRAPHIC] [TIFF OMITTED] T7046.025
[GRAPHIC] [TIFF OMITTED] T7046.026
[GRAPHIC] [TIFF OMITTED] T7046.027
[GRAPHIC] [TIFF OMITTED] T7046.028
[GRAPHIC] [TIFF OMITTED] T7046.029