[Senate Hearing 108-379]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-379

                   AMERICAN INDIAN PROBATE REFORM 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

                               __________

                            OCTOBER 15, 2003
                             WASHINGTON, DC



89-982              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
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                      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:
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      chairman, Committee on Indian Affairs......................     1
    Lyons, Maurice, chairman, Morongo Band of Mission Indians, 
      Banning, CA................................................    67
    Matt, Fred, chairman, Confederated Salish and Kootenai 
      Tribes, Pablo, MT..........................................    64
    Nordwall, Wayne, director, Western Region for Bureau of 
      Indian Affairs, Department of the Interior, Washington, DC.    60
    Nunez, Austin, chairman, Indian Land Working Group, 
      Albuquerque, NM............................................    70
    Oshiro, Lisa, directing attorney, California Indian Legal 
      Services, Washington, DC...................................    68

                                Appendix

Prepared statements:
    Hall, Tex G., president, National Congress of American 
      Indians....................................................    75
    Lyons, Maurice...............................................    73
    Matt, Fred (with attachment).................................    82
    Nordwall, Wayne..............................................    96
    Nunez, Austin (with attachment)..............................   106
    Oshiro, Lisa.................................................   143

 
                   AMERICAN INDIAN PROBATE REFORM ACT

                              ----------                              


                      WEDNESDAY, OCTOBER 15, 2003


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m. in room 
485, Senate Russell Building, the Hon. Ben Nighthorse Campbell 
(chairman of the committee) presiding.

 STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM 
        COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    The Chairman. The committee will be in session.
    We have been notified that we have stacked roll calls votes 
at 10:40 a.m. Senator Inouye is probably not going to attend 
this morning, so I am going ahead and start the hearing. I need 
to tell everybody that because we have those stacked roll calls 
votes more than likely we will not be coming back unless you 
want to wait for several hours, and I do not think most people 
would want to do that. I have another conflict, as well.
    So we are going to take all the testimony and ask everyone 
who is testifying to keep their statements down to about five 
minutes or so. Most of the questions that Senator Inouye and I 
have will be submitted in writing because of the very 
abbreviated time that we have in the hearing this morning.
    This past May this committee held a hearing on S. 550, the 
American Indian Probate Reform Act of 2003. Yesterday, I 
introduced a complete substitute to S. 550 that is based on 
meetings and a dialog held across the Nation with many Indian 
tribes since the May 7 hearing. The goal of S. 550 and the 
substitute are the same--to stop the fractionation of Indian 
lands and to help reconsolidate those lands. We hope this can 
be done through a commonsense approach and commonsense changes 
to the rules governing Indian probate.
    [Text of S. 550 follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    The Chairman. As an aside, the Capitol Police have also 
notified us on two or three occasions that they have had 
complaints from some of the Senators who have offices right 
across the hall. When we leave today, please keep the noise 
down in the hall.
    I will start with our first witness today, Wayne Nordwall, 
director of the Western Region for Bureau of Indian Affairs. 
Please come up and start, please.

   STATEMENT OF WAYNE NORDWALL, DIRECTOR, WESTERN REGION FOR 
     BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, 
                         WASHINGTON, DC

    Mr. Nordwall. I am Wayne Nordwall, director of the Western 
Region for the Bureau of Indian Affairs [BIA].
    Mr. Chairman, I would like to thank the committee for its 
continued interest in this matter. This is one of the most 
critical issues that faces the Department at this point. It 
also critically affects the lives and property of thousands of 
Indians throughout the country. We are very grateful that the 
committee has continued to work on this issue.
    One of the things that we had hoped to do when we met in 
May was to have a set of recommendations ready to submit before 
the next hearing, but unfortunately because of the Bureau 
reorganization, Trust reform projects, and trying to comply 
with some of the Cobell issues, we have not done that. But we 
have worked with the committee, the Indian Land Working Group, 
and other people. I think we are moving forward on this thing.
    We cannot emphasize how critical this issue really is. We 
have all talked for years about the exponential growth of 
fractionation. I think that is starting to begin to rear its 
ugly head more and more on a weekly and monthly basis. I do not 
have the graph with me, and I know you have seen it before, 
where if you start in 1887 and you go up to 1920, 1930, 1940, 
and 1950, this line showing the increase of fractionation is 
relatively flat until you get to the 1960's, 1970's, 1980's, 
and 1990's where it goes almost vertical.
    We are at the point now where if we cannot correct this 
problem within a decade or less, it may overwhelm us and we 
will not be able to do anything with it. Our current computer 
systems are at their maximum limit. At this point, we are 
having to migrate our title data from the existing LRIS system 
over to TAAMs title. We are trying to put that in nationwide.
    The system that pays out many of the allottees is called 
IRMS. That system is literally on the verge of collapse. It is 
an old mechanical system that was developed in the 1960's. The 
software is no longer supported. We have to develop another 
system. Of course, this whole fractionation issue is literally 
about ready to crush many of those systems. We have to do 
something relatively soon.
    In our testimony we have a couple of examples of the 
problems that fractionation causes. I am just going to go 
through a couple of others just because I thought they were 
timely at this point to show this exponential growth.
    In 1992, the General Accounting Office [GAO] did a profile 
of land ownership on 12 highly fractionated reservations. One 
of the findings that they found in here was that there were 
80,000 discrete owners on this 12 reservations, yet there were 
over 1 million fractional interests involved. I think many 
times people do not understand how there can be so many 
fractions when there is such a small number of Indians. For 
instance, the reason this happens is one person may inherit a 
one two-thousandths interests from his uncle, and then in a 
separate probate a one five-hundredths interests from an aunt. 
Then if the surface and the subsurface are split, then it 
causes even more problems with fractionation.
    We did not have the exact software that they used in order 
to compile these numbers. We attempted to update this report 
about 6 months ago as part of the pilot project to see how we 
could make that a national program. We could not get a full 10-
year span because of the court injunction. Some of our computer 
systems are still off-line. What we found was that the problem 
has increased on those reservations from 1992-2000, it grew by 
40 percent on those 12 reservations. We have 1,400,000 
fractional interests on those 12 reservations.
    In 1992 we also had a probate study where we went out and 
tried to analyze the condition of the probate program. At that 
point we found that there were approximately 6,000 cases that 
were backlogged. We just did that same study again. Now there 
are over 18,000 cases. As you can see, this exponential growth 
is starting to grow.
    I called the Rocky Mountain region before I left Phoenix 
and asked them if they could send me an example of some of the 
problems they are having. They have a Turtle Mountain public 
domain allotment which is located off reservation. It is 80 
acres. It is worth about $10,000. It is leased every year for 
$240. Right now there are 60 pending probates on that 
allotment. The average cost of a probate is $3,000. That is 
$180,000 worth of probate on that one alone. There are 11 dower 
interest holders, six life estates, 35 interests of passed into 
fee. Once they go into fee we lose control. We have no idea who 
the actual owners are at this point. There are 558 trust 
interests. Even if we just figure the average cost of $150 per 
account to maintain those, that is $83,000 just to maintain the 
accounts on those 558 interests. When you add in the probate, 
you can see the administrative costs far exceed the value of 
the land. This is becoming a more frequent problem all through 
Indian country.
    We are still off the internet. I think sometimes people 
tend to forget that. They send stuff and it bounces back. We 
did not get the revisions to S. 550 until last night. I have 
not had a chance to look at them. As soon as I get back we will 
submit detailed comments on S. 550.
    The Chairman. I would appreciate that.
    Mr. Nordwall. One of the things that we were concerned 
about in the original S. 550 is that it dealt solely with 
probate. At this point there are issues that have arisen in the 
implication of the 2000 amendments that require more than just 
addressing probate. I think one of the things that was in the 
original bill was a provision that said at the end of 3 years 
the Secretary of the Interior is supposed to submit amendments 
to correct any problems that have been identified. That was 
taken out because everybody figured the Secretary had that 
authority anyway. It has been three years. There are several 
things that the Department is focusing on.
    I will just go through some of the ideas that we have 
discussed. We have a draft that we have been working with the 
committee members and with the Indian Land Working Group. We 
have looked at the California Indian Legal Services draft. 
Everybody has spent time working on this. We do have a draft 
floating around within the Department with some ideas. I will 
just go through some of the ideas that are in there. Hopefully, 
once we look at S. 550, rather than perhaps submit a 
Departmental revision, we will just modify S. 550. It seems 
that many of the things that we were concerned about are now 
addressed in this bill.
    The Chairman. We will address any further comments you have 
when you give us those recommendations.
    Mr. Nordwall. Fine. The first thing is that we agree that 
there needs to be a definition of highly fractionated land. At 
this point, because of the problems, we need to address them 
differently than some of the ones that are less fractionated. 
We have to expand the Secretary's partition authority. At 
present, the existing statute authorizes the Secretary to 
partition only if it is in the best interest of the Indians. 
That has always been construed to mean economic best interests.
    In other words, if you have an 80-acre grazing allotment in 
North Dakota, and there are 80 owners, you cannot divide it and 
give each one an acre because that acre has no separate 
utility. There is no way in or out. It has no value.
    What we want to do is to allow partition-in-kind. If 
someone has a home site, you can partition it out and try to 
deal with that and create a usable unit for each person and not 
be focused on finance.
    We also may want to consider is partition by sale. If you 
wind up with an allotment with 400 owners, and 30 of them 
decide they just want to sell and get out of it, right now it 
is almost impossible to do that. We want to set up a procedure 
to where they can, in effect, go in and petition the Secretary 
and ultimately may be have a review by the Courts in order to 
sell these things to either co-owners, third parties, or to the 
tribes.
    The other thing which was in S. 550, and is critical, is to 
create a uniform Federal probate code. The existing reliance on 
50 States is just not working, especially as these things get 
more complex, and especially as more people wind up inheriting 
land on different reservations in different States. We have 
more and more circumstances where that happens.
    Under our proposal, one of the big criticisms of the old 
provisions is that it had very limited ability for people to 
devise property to their wives and children. The 2000 
amendments have the same problem. They limit who you can will 
your property to. That ended up sending a shock wave through 
Indian country with a lot of people coming in wanting to 
convert their land to fee so they could will their property to 
their non-Indian spouses and children.
    What we have proposed is that in this probate code that 
there be very liberal provisions for people who write wills. In 
teste is a different issue. If somebody does not write a will, 
then we think there has to be a limited class. We just cannot 
have it open-ended so that it keeps fractionating indefinitely.
    One of the other things that we think is critical is that 
we have to have the ability to purchase these fractional 
interests during the probate process. There are four or five 
special acts that relate to particular tribes, where during the 
probate process the tribe can go in and in lieu of that land 
going to that owner, they can pony up the money and take that 
land themselves. We think the Secretary and the tribe should 
both have that authority. Again, the details of how that would 
work are things we still need to work out.
    Another critical issue is to come up with an expedited 
probate process, particularly on small money estates. Right now 
we have hundreds and hundreds of accounts that are less than 
one dollar, and yet we still wind up having to probate them 
through the normal probate process which costs thousands of 
dollars. We want to come up with some sort of an in-house 
administrative procedure to deal with these highly fractionated 
small estates and not have a full-blown probate hearing.
    One of the other issues that was discussed at length in the 
2000 amendments and in the original act in 1984 was giving the 
tribes the authority to probate these estates in tribal court. 
They currently do not do that. They can draft a probate code 
but it has to be probated by the Secretary. Again, one of the 
issues that we are considering is allowing the tribes to 
probate in tribal court. One of the big problems again, of 
course, is: What do you do in those circumstances where a 
person owns land on multiple reservations? Who has primary 
jurisdiction? Will there be a split? We do not want people to 
have to go through multiple probates.
    We want to have the Secretary to perhaps have greater 
authority under the land acquisition program. At present, 
whenever we purchase land under the acquisition program, it 
automatically goes to the tribe. In addition to the 
fractionation, we have checkerboarding where we have fee land, 
we have trust land, and we have tribal land. We think that 
perhaps we should be able to sit down with the tribes, help 
them work on a consolidation plan, and for those interests that 
are within that consolidation area, to convey those to the 
tribes as we do under the existing statute, but if they are 
outside, sell them to co-owners or something else to 
consolidate those interests.
    Finally is the whole issue of whereabouts unknown and 
unclaimed property. Again, we have thousands of accounts with 
just pennies in them that we cannot locate the owner. Every 
State in the Union has an unclaimed property statute where if 
there is no activity in that account for a certain amount of 
time, it goes into a fund. You post a notice in a local 
newspaper. Every year you see these things come out. Then after 
a certain number of years it just goes to the State fund. In 
this case, we propose it go into the land acquisition fund.
    The bottomline is that we have made much progress. The 
committee has put much work into this effort. We appreciate 
that. Again, we want to emphasize how critical it is that we 
try to come up with a solution. One of the things that we are 
concerned about and we are working with everyone to try to fix 
as much as possible is to water the bill down, to be blunt.
    The history of this initiative since the 1920's and 1930's 
is that every time Congress attempts to put real teeth in the 
bill, there are complaints in Indian country. Then it gets 
watered down to the point where it is diluted and has no 
effect. I do not think we have another opportunity to fix this 
problem. Given the fractionation, if we do not fix it at this 
point, within 8 or 10 years, this is going to become de facto 
communal land. On any given day, no one is going to know who 
owns the property. There will be hundreds of estates in probate 
on any given day. We have to fix it.
    There will be some hard decisions that have to be made. 
Everybody will not be happy. Any time you draw up a set of 
standards, draw a line, or set criteria, somebody is on the 
wrong side. We realize that. What we think we have to do is 
that we have to focus on the 99 percent of the problem. We may 
not be able to address the problems of the 1 percent. But it 
has to be fixed. Otherwise, the system is just going to 
collapse.
    I will be glad to answer any questions, Mr. Chairman. I 
would like to submit my written testimony for the record.
    The Chairman. Without objection, your testimony will be 
placed in the record in its entirety.
    [Prepared statement of Wayne Nordwall appears in appendix.]
    The Chairman. Thank you, Wayne. If you would get back to 
the committee as soon as you have recommendations for us, I 
would certainly appreciate it.
    Mr. Nordwall. I have to go to Nashville to work on some 
Cobell issues, but we will fax a copy of the bill back to our 
Committee and start getting some comments for you.
    The Chairman. Thank you.
    I will submit questions to you in writing.
    We will now go to the next panel which consist of Fred 
Matt, chairman, Confederated Salish and Kootenai Tribes, Pablo, 
MT; Maurice Lyons, chairman, Morongo Band of Mission Indians, 
Banning, CA; Lisa Oshiro, directing attorney, California Indian 
Legal Services, Washington, DC; and Austin Nunez, chairman, 
Indian Land Working Group, Albuquerque, NM.
    As I told Mr. Nordwall, we have a very tight agenda this 
morning. I know that I am going to have to leave. If another 
Senator is here, we will let him go ahead and chair the 
hearing. If we do not finish before I have to leave, I am going 
to ask staff to finish chairing the hearing.
    Let us start in the order that I mentioned your name.
    Fred, go ahead.

   STATEMENT OF FRED MATT, CHAIRMAN, CONFEDERATED SALISH AND 
                   KOOTENAI TRIBES, PABLO, MT

    Mr. Matt. Chairman Campbell, with what you have said, I 
will be as brief as I can. My name is Fred Matt. I am the 
chairman of the Confederated Salish and Kootenai Tribes of the 
Flathead Nation. On behalf of our tribal council, I am pleased 
to provide testimony regarding the substitute bill for S. 550 
entitled, ``American Indian Probate Reform Act of 2003.''
    I will summarize the most important points of my testimony. 
Before I get into my comments, I would like to say, Chairman 
Campbell, that I ran into a good friend of yours a couple of 
days ago, Doug Allard. I would not be a very popular person if 
I did not say hi and send his regards. I saw him the other day 
at one of the most popular gathering places that we have in 
Western Montana, WalMart.
    The Chairman. Tell him hello for me. When I had a life, I 
was a jeweler and I made his wedding rings. He might have told 
you that.
    Mr. Matt. He just went through cancer surgery. He is 
recovering very well. He looked very good. I would like to send 
his regards.
    The Chairman. Thank you.
    Mr. Matt. We just hosted the 13th annual Indian Land 
Working Group Conference in Flathead. We are pleased that David 
Mullin was there from your staff on behalf of the committee. 
The conference was a great success. The tribes appreciate the 
efforts this committee and the staff in attempting to correct 
the fractionated interest problems of Indian land ownership, 
while also endeavoring to retain the trust status of property 
on reservations.
    We support the objectives of the Indian Land Consolidation 
Act Amendments of 2000, ILCA, and recognize that some 
amendments are necessary to clarify this complex legislation. 
Foremost, we encourage the committee to seek enactment of these 
amendments prior to the Secretary's certification of notices as 
required by ILCA which triggers the 1-year effective date.
    The Flathead Reservation was created in 1855 by the Treaty 
of Hellgate. CSKT ceded over 22 million acres of tribal 
homelands and retained 1.3 million acres located in 
Northwestern Montana. We have always been, and remain, a part 
of that land. Initially we were successful opposing the General 
Allotment Act of 1887. However, competition for the land from 
outside business and political interests forced the passage of 
the Flathead Allotment Act in 1904.
    Pursuant to that act and others, a total of 3,380 
allotments were made to individual Indians. More devastating to 
their tribal self-governance and the economic base was the 
opening of the reservation to homesteading. The allotment era 
reduced tribal government ownership to approximately 30 percent 
of the total reservation.
    In 1934, Congress enacted the Indian Reorganization Act for 
various reasons including the end of the devastation caused by 
the allotment era. We were the first tribe in the United States 
to organize under IRA, and one of the first tribes to begin to 
reacquire lost lands. We have come a long way since the 1930's, 
including being one of the first self-governance tribes. We 
have now compacted all land management functions, including 
land titles and records. We have also reacquired land on the 
Flathead Reservation to the point where nearly 70 percent of 
the lands are back in the hands of the tribe. We have provided 
land status maps with our written testimony to show what this 
has done to our reservation.
    ILCA assists our goals for land restoration. However, 
currently the legislation, although not certified and, 
therefore, not in effect right now, is having the unintended 
consequences of pushing Indian land owners to request fee 
patents for their trust property. Indian land owners are 
fearful that they may not be able to leave their trust property 
to family members.
    In my case, I own seven acres and a home that is in trust. 
My wife is a non-Indian. Some of my children are unenrolled. 
Some of them are enrolled members. It is a long story. I will 
not share that with you now.
    The Chairman. That is okay. That is becoming more of a 
common story in Indian country everywhere.
    Mr. Matt. If Section 207 of ILCA was effective in my 
situation, my wife and my unenrolled children would inherit the 
life estate and my enrolled child would inherit the land and 
the title to the home. This is not my desired outcome.
    The legislation needs to allow for descent of property to 
rightful heirs by will. In addition, if the land should acquire 
fee status due to inheritance by a non-Indian, I would first 
support the tribal option to keep the property in trust. It is 
the same option tribes exercise when a land owner now requests 
a fee patent by an application. Furthermore, if the Indian land 
owner does not make a will, the stricter rules of inheritance 
should apply. However, Indian land owners need the ability to 
estate plan.
    Again, we need to balance our membership's needs with our 
self-governance. S. 550 attempts to provide that balance. The 
potential of Indian land owners on our Reservation who feel 
forced to prematurely transfer their interest from trust to fee 
status, poses a threat to our self-governance and tribal 
jurisdiction.
    Next, we need to know the definition of Indian. This 
legislation is an opportunity to clarify the definition. We 
believe that it would be best to use the definition contained 
in the Indian Health Care Improvement Act. However, if S. 550 
should broaden the definition of Indian, the legislation should 
also recognize the tribe's right to restrict the inheritance 
through an enactment of the tribal probate code.
    S. 550 is an opportunity to establish the framework for 
probate reform and still allow tribes to enact a probate code 
of their own.
    Last, CSKT needs access to acquisition funds for 
consolidating fractionated interests. The BIA has interpreted 
the pilot acquisition program, as authorized by Congress, not 
to apply on reservations where programs are operated by the 
tribes. This discrimination against tribes who utilize the 
Indian self-determination makes no sense. CSKT could eliminate 
nearly 3,000 undivided land interests with such funding. CSKT 
has identified 200 tracts of lands with 50 percent tribal 
ownership. In May 2003, CSKT submitted a proposal to the 
Department requesting funding in the amount of $6.5 million to 
complete such projects. CSKT suggests that the Committee either 
amend the land acquisition program so that all tribes can 
participate or allocate funding for tribes operating under the 
Self-Determination Act.
    In addition, when ILCA, is implemented, we will also need 
funding for training and for estate planning if the amendments 
are going to be successful. Education about fractionation is 
probably a key factor for our membership. Since our membership 
received the BIA notice to Indian land owners in August 2001, 
our tribal council has committed to keeping our membership 
informed about this issue.
    There are numerous items in this legislation. CSKT has 
addressed these in our prepared written testimony. We believe 
that through the combined efforts of land acquisition, probate 
reform, and estate planning education, we will eventually 
manage land fractionation on the Flathead Reservation.
    We look forward to working on the technical issues 
surrounding S. 550 and hope to provide additional comments in 
the future. Thank you again for allowing me to testify. I would 
like to submit my written testimony for the record.
    The Chairman. Without objection, your testimony will be 
placed in the record in its entirety.
    [Prepared statement of Fred Matt appears in appendix.]
    The Chairman. Thank you, Fred. What you have talked about 
of leaving land to your children and descendants that they 
might not be enrolled is an important point. I do not know if 
you have read the new version of S. 550. I understand there is 
a section that hopefully will take care of that problem by 
allowing Indian people to leave the land to their direct 
descendant with the tribal first right-of-purchase if that 
descendant decides to sell it. We are floating that idea with 
tribes. That might be the compromise that works for you.
    We will now go to Chairman Lyons. Thank you for being here.

 STATEMENT OF MAURICE LYONS, CHAIRMAN, MORONGO BAND OF MISSION 
                      INDIANS, BANNING, CA

    Mr. Lyons. Thank you, Chairman Campbell, and Vice Chairman 
Inouye for inviting Morongo to testify today. Our position is 
spelled out in our written statement. In addition, I would like 
to make a few points.
    Last year Chairman Campbell asked the Department of the 
Interior to delay implementation of the amendments to the 
Indian Land Consolidation Act. This was to allow Congressional 
review of concerns and issues that have arisen in Indian 
Country. To date, the Department of the Interior appears to 
have honored your request and we are thankful of their 
willingness to do so.
    The proposed amendments will protect our members' rights of 
inheritance. Because of the way the 2000 act now defines 
Indian, the Morongo Band is faced with having to substantially 
reverse or revise our membership criteria in order to make 
possible for some of our members to pass the interest and Trust 
allotments to their heirs, to their children.
    Arbitrarily revising our membership criteria will only 
cause further unfairness, divisiveness, and confusion. We 
should not be forced to amend our membership criteria in order 
to protect the right of our children to inherit family lands. 
The amendments to S. 550 provide a solution to the problem we 
have in California.
    I was reading a book that I think fits right in with what 
we are doing here today. It was about George Washington and the 
Seneca Indian chiefs. They were talking about the land that 
they had at that time. George Washington was talking to Chief 
Cornplanter, and Chief Cornplanter told him: ``The land we live 
on, our fathers received from God. They transmitted it to us 
for our children. We cannot part with it.'' President 
Washington told him: ``In keeping with the spirit, the 
Government will never consent to your being defrauded, but will 
protect all your just rights.''
    That is something.
    Thank you, Mr. Chairman, for hearing my testimony today. 
Your efforts today will help the promise George Washington 
originally made to America's first people. I would like to 
submit my written testimony for the record.
    The Chairman. Without objection, your testimony will be 
placed in the record in its entirety.
    [Prepared statement of Maurice Lyons appears in appendix.]
    The Chairman. Thank you.
    George Washington may have had very good intentions toward 
Chief Cornplanter, too. It is too bad that the people who 
followed him did not have as good intentions, very frankly.
    Ms. Oshiro? Where is your office, by the way? Sacramento?
    Ms. Oshiro. California Indian Legal Services has offices 
throughout California. We also have an office here in 
Washington, DC, where I work.
    The Chairman. I see. Thank you.

STATEMENT OF LISA OSHIRO, DIRECTING ATTORNEY, CALIFORNIA INDIAN 
                 LEGAL SERVICES, WASHINGTON, DC

    Ms. Oshiro. Thank you, Chairman Campbell, for inviting 
California Indian Legal Services to testify before you on S. 
550. We come to you wearing various hats. First, California 
Indian Legal Services represents tribes and individuals 
throughout the State of California. One of our primary purposes 
is to protect the very limited and precious trust and 
restricted lands in California.
    S. 550, as Chairman Lyons has said, includes some 
amendments to the definition of Indian that are very critical. 
I want to point out that there is a specific definition for 
California Indians that is very important because of the status 
of some of our tribes that were terminated by acts of Congress 
and have not yet been restored. Congress has, through various 
acts, allotted lands on the public domain and national forests 
that those members would like to continue to pass on to their 
descendants. They need to be recognized as Indians, although 
they are not members of a federally recognized tribe. The 
broader definitions under S. 550 are helpful all throughout 
Indian Country. We applaud your efforts in amending that.
    I also come here wearing the hat of one of the participants 
on the S. 550 Task Force. California Indian Legal Services came 
together with the National Congress of American Indians, the 
Indian Land Working Group, and various tribal representatives 
last November in support of your bill, S. 1340, as we were 
trying to amend that and get that passed. At that time, we were 
specifically addressing the definition of Indian.
    When you introduced S. 550 in March, we brought those 
people together, as well as additional advocates and 
representatives from throughout Indian Country. We have a very 
long distribution list. We have been one of the primary 
organizers of this informal S. 550 Task Force. We have been 
very appreciative of the participation of representatives from 
the Department of the Interior, from your staff, and from 
Indian tribes, Indian organizations, and Indian land owner 
associations. We have come together to try to address this very 
difficult and complex problem where we know that we had to make 
some tough decisions.
    As Wayne Nordwall was pointing out, we are not able to 
reach consensus on everything. Not everyone can have their 
ideal bill. But we have been engaged in many discussions and 
deliberations about what we need to do to aggressively address 
this problem that is pervasive throughout Indian country. It 
poses a problem to the productive use of these lands, as our 
elders want to put these lands that they have fought so long 
and hard to protect to productive use for their current 
generation and for future generations.
    We have been very happy to be participating with this 
informal S. 550 Task Force to bring together the collective 
knowledge, experience, wisdom, resources, and vision of all of 
these groups. We need a solution, and we need that solution 
now. We recognize the problems that the Department of the 
Interior has in managing these highly fractionated parcels. We 
are happy to really hear and echo the various provisions that 
were expressed in Interior's desire for and support for highly 
fractionated lands, partition, the Uniform Probate Code, the 
ability for individuals to freely devise their interests. It 
would also provide estate planning services.
    That is where I switch to my next hat. In providing 
education and estate planning services throughout Indian 
country, we are encouraging Interior to also consider utilizing 
the services of Indian Legal Services throughout the country, 
which has long been recognized as the most effective and 
efficient model for the delivery of quality legal services 
throughout Indian country. There are programs, such as in the 
State of Montana, that do not receive sufficient funding to 
provide this type of estate planning services. This is another 
measure to address fractionation and promote consolidation in 
individual estate planning and family estate planning, to be 
able to provide that education and legal services to our 
communities. It also provides the confidential setting as well 
as other protections of the attorney/client relationship.
    Before closing, I would like to thank you for your bill and 
for the commitment of your staff and for their availability, 
accessibility, and their participation in all of our meetings 
and discussions. This has been, as some people have pointed 
out, rather historic for all of these different interests to 
come together and work collaboratively and make those hard 
decisions.
    In conclusion, we look forward to continuing our work with 
you in the coming days and weeks. There is an urgent need to 
pass this bill, S. 550, before the 2000 amendments are put into 
effect. We are doing this work because we must honor--and we 
would like to honor--the elders and their ancestors who have 
fought so long and hard to protect these precious lands so that 
they can rest with the comfort and the assurance that they can 
pass these lands on to their children and future generations, 
to continue to protect them, as well as to consolidate them, 
and put them to productive use.
    Thank you. I would like to submit my written testimony for 
the record.
    The Chairman. Without objection, your testimony will be 
placed in the record in its entirety.
    [Prepared statement of Lisa Oshiro appears in apendix.]
    The Chairman. Thank you for the nice compliment of the 
staff. They have worked very hard on this bill. They work hard 
on all bills, but they worked particularly hard on this bill. 
You certainly brought up the difficulty, the complications, 
about identifying who is Indian anymore. I can tell you that 50 
years ago it was easier. The community was small. You tended to 
know families or you knew how it was as the community grew. 
There was intermarriage. More and more people are being 
reinstated as Federally-recognized tribes. I cannot tell. If 
they tell me they are, I take their word for it. It is getting 
more and more difficult all the time to define who is Indian, 
particularly when each tribe sets their own criteria.
    Thank you.
    Mr. Nunez, you are the chairman of the Indian Land Working 
Group from Albuquerque; is that correct?
    Mr. Nunez. Yes, sir.
    The Chairman. Please go ahead.

STATEMENT OF AUSTIN NUNEZ, CHAIRMAN, INDIAN LAND WORKING GROUP, 
           SAN XAVIER DISTRICT, TOHONO O'ODHAM NATION

    Mr. Nunez. Thank you very much, Chairman Campbell. The 
Indian Land Working Group thanks the committee for its 
invitation to appear and provide testimony concerning the 
proposed amendments of the Indian Land Consolidation Act.
    I would like to state at the outset that we are very 
pleased with the changes that are contained in your bill. We 
look forward to its passage. I would like to make some 
additional comments from my prepared statement.
    ILWG supports the implementation of a steady, long-term, 
adequately funded program of tribal and individual 
consolidation and acquisition of fractional interests to avoid 
loss of trust status of allotted lands; adequate land owner 
access to information about their lands; elimination of 
experimental estates; and land that have no foundation and no 
law; amendments that are written in a style comprehensible to 
the users; and true consultation with interests directly 
affected by trust reform measures.
    ILWG further supports the ability of land owners to engage 
in owner management of parcels, if all owners agree; and a well 
thought-out and carefully structured family and private trust 
pilot project that protects against overreaching by third 
parties and preserves trust status; secretarially-maintained 
recording system for tribal inheritance codes which are 
encouraged under ILCA; and the establishment of missing persons 
investigation systems with appropriate unclaimed property 
provisions tailored for small accounts and possibly smaller 
highly fractionated land interests.
    In conclusion, ILWG suggests that S. 550 substitutes be 
streamlined to enact those provisions that are critical to 
repairing the problems created by ILCA 2000, and the numerous 
provisions about which there is general consensus.
    Thank you. I would like to submit my written testimony for 
the record.
    The Chairman. Without objection, your testimony will be 
placed in the record in its entirety.
    [Prepared statement of Austin Nunez appears in appendix.]
    The Chairman. Thank you, I appreciate your comments.
    I am going to submit all of my questions to be answered in 
writing, if you would. Senator Inouye will probably do the same 
thing.
    Without objection, so ordered.
    We will keep the record open for 2 weeks for any additional 
comments that staff would ask or if you have some further 
recommendations of how we can make S. 1721 work. I would 
certainly appreciate it.
    Those in the audience, too, if you have any comments to 
submit, we would appreciate that, too.
    The Chairman. With that, the hearing is adjourned.
    [Whereupon, at 10:40 a.m., the committee was adjourned, to 
reconvene at the call of the Chair.]


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                            A P P E N D I X

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              Additional Material Submitted for the Record

=======================================================================


Prepared Statement of Maurice Lyons, Chairman, Morongo Band of Mission 
                                Indians

    Thank you Mr. Chairman and Vice Chairman Inouye for inviting the 
Morongo Band of Mission Indians to provide you with our testimony 
concerning S. 550, the American Indian Probate Reform Act of 2003, a 
bill to amend the Indian Land Consolidation Act. As you may recall, I 
testified before this committee in May of last year to encourage the 
Senate to adopt legislation to amend ILCA and I come before you today 
to do the same.
    In 2002, Chairman Campbell asked the Department of the Interior to 
delay implementation of certain provisions of the Indian Land 
Consolidation Act Amendments of 2000 [the act] pending further 
Congressional review of concerns and confusion that have arisen in 
Indian country about the consequences--both intended and possibly 
unintended of those amendments. To date, the Department appears to have 
honored your request and we are thankful for their willingness to do 
so.
    As I relayed to you in May of last year, the 2000 act prompted the 
Department to send out a series of notices to individual tribal members 
alerting them of expected changes to the rules of intestate succession 
and inheritance that will constrain the devising of interests on trust 
and restricted land to non-Indians. These notices had an immediate 
detrimental impact on our tribe's ability to plan for the future and 
manage our tribal lands effectively and our tribal members' ability to 
pass their land down to their children and grandchildren.
    While the Department has to date been willing to not implement the 
amendments from the 2000 act, we know that they are not able to defer 
this action forever. To this end, we encourage you to act swiftly on 
this matter.
    The Morongo Reservation is located approximately 17 miles west of 
Palm Springs. Our tribal membership enrollment is 1,200 and the 
reservation comprises approximately 33,000 acres of trust land, of 
which 31,115.47 acres are held in trust for the tribe, and 1,286.35 
acres are held in trust for individual allottees or their heirs. We are 
continuing to make inquiries relative to the number of Morongo members 
that have an interest in trust allotments on our reservation and other 
reservations. We are also interested to learn how many non-Morongo 
members hold an interest in trust allotments on the Morongo 
Reservation.
    We at Morongo share the desire of Congress to preserve the trust 
status of existing allotments and other Indian lands, and we appreciate 
this committee's hard work in 1999 and 2000 to strike a balance in the 
Indian Land Consolidation Act Amendments of 2000 between the individual 
property rights and interests of allottees and the sovereign rights and 
interests of tribal governments. However, we now recognize unintended 
consequences from this legislation have come about.
    For example, because of the way that the 2000 act now defines 
``Indian,'' the Morongo Band is faced with having to revise its own 
membership criteria in order to enable some of our enrolled members to 
pass their interests in trust allotments to their own children. 
Congress must understand that we do not feel revising our membership is 
a solution. The fact is that changing the membership is a very divisive 
matter for tribal governments and their members. We should not be 
forced to amend our membership criteria in order to protect the right 
of our members' children to continue having interests in their family 
lands.
    S. 550 includes a solution to the problem we face in California. 
Specifically, the bill protects those individuals having an interest in 
the ownership, devise, or descent of trust or restricted land in the 
State of California, as long as that person is a descendent of an 
Indian residing in the State of California on June 1, 1852 This will 
allow members of my family who may no longer be eligible for membership 
in the Morongo Tribe--but are most definitely American Indians--to 
carry on the traditions of our family on our lands.
    Due to the unique history of reservations and rancherias in 
California, this definition highly warranted. Mr. Chairman, as you 
know, tribes which exist today were largely cobbled together based on 
the geographic proximity of native people. For example, the Morongo 
Band of Mission Indians is made up from people who descended from 
Cahuilla, Chemehuevi, Luiseno, Serrano and many others. These people 
all lived in the same area and where combined into the Morongo Indian 
Reservation. This situation is shared by many of the tribes located in 
California and is the basis for a much needed definition for those 
native people who live California.
    Mr. Chairman, thank you for your time and willingness to hear about 
the concerns of the Morongo Band of Mission Indians.
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