[Congressional Record Volume 145, Number 96 (Thursday, July 1, 1999)]
[Senate]
[Pages S8088-S8090]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN:
  S. 1315. A bill to permit the leasing of oil and gas rights on 
certain lands held in trust for the Navajo Nation or allotted to a 
member of the Navajo Nation, in any case in which there is consent from 
a specified percentage interest in the parcel of land under 
consideration for lease; to the Committee on Indian Affairs.


                           fractionated lands

  Mr. BINGAMAN. Mr. President, I rise to talk about a bill that I have 
sent to the desk. It relates to a very serious problem faced by a large 
number of Navajo people in my State. The issue is referred to as 
``fractionated lands.''
  Around the turn of the century, the Federal Government attempted to 
force Indian people to assimilate by breaking up traditional tribal 
lands and allotting parcels of the land to individual tribal members. 
In New Mexico, this policy created what is known as the 
``checkerboard,'' because alternating tracts of land are now owned by 
individual Navajos, the state, the federal government, or private 
landowners. A Navajo allotment was generally 160 acres. Under the 
allotment system, the Navajo owner was granted an undivided interest in 
the entire parcel. The heirs of the original owner also inherit an 
undivided interest, geometrically compounding--or fractionating--the 
number of owners of the original 160 acres.
  This allotment policy, coupled with other federal laws governing 
Indian land ownership, land management, and probate, have not served 
the Navajo people well during this century. I am introducing 
legislation today to help address this problem.
  Mr. President, I'd like to take a few minutes to illustrate why the 
legislation I am proposing is needed. If a Navajo was allotted a 160-
acre parcel and had four heirs, the heirs did not inherit 40 acres each 
when the original owner died. Rather, each heir inherited a 25 percent 
undivided interest in the full 160-acre allotment. Going forward, when 
the current four owners died, assuming again four heirs each, sixteen 
heirs inherited a 6.25 percent undivided interest in the allotment. The 
next generation would result in 64 heirs each with a 1.5625 percent 
undivided interest. And so forth.
  What makes this situation so unique is that each heir inherits an 
undivided interest in the allotment. Over time, individual owners may 
inherit tiny fractions in many different allotments around the 
reservation. In my state, there are about 4,000 individual allotments 
covering nearly 700,000 acres. At this point, these 4,000 Navajo 
allotments have a total of 40,000 listed owners, and the number grows 
every day. It doesn't take a Ph.D. in math to figure out what's wrong 
with this policy.
  Mr. President, in April I held a town meeting with Navajo allottees 
in Nageezi, New Mexico, a small chapter house in the Northeast section 
of the Navajo Reservation. The allottees talked about the serious 
problems that fractionated ownership has caused. Over 100 members of 
the Navajo Nation came from as far away as Aneth, Utah, to speak at the 
meeting. As you know, the Navajo Nation extends into three states, New 
Mexico, Arizona and Utah, and there are allottees living in all three 
states.
  Record keeping of individual land ownership has become a nightmare. 
In many cases, owners can no longer be located. Also, ownership can be 
clouded when an owner dies without a legal will--a common situation in 
Indian Country.
  Some individuals do not even realize they own one or more of these 
allotments. Often, individuals are surprised to find out that they are 
an heir to an allotment on another reservation.
  Mr. President, we all recognize there are serious problems with BIA's 
management of its trust responsibilities for allotted lands in New 
Mexico. The management problems were brought out very clearly at a 
joint Senate hearing in March. The hearing also revealed the extent to 
which the government's allotment policy contributed to BIA's current 
trust management problems.
  On the Navajo reservation, a three-year pilot project is underway in 
Farmington, New Mexico, to try to unravel some of the management 
problems with allotted Navajo lands. This project, called the 
Farmington Indian Minerals Office, or FIMO, is trying to cut through 
the red tape created by three different Bureaus in the Department of 
Interior, BIA, BLM, and MMS, which share responsibility for management 
of allotted lands. The FIMO has worked hard to assist Navajo allottees 
determine who their fellow allottees are and what land each allottee 
owns. I support the efforts of FIMO. If this legislation is passed, 
FIMO could accomplish even more on behalf of the Navajo allottees in 
the three states.
  Mr. President, over the years, Congress has tried to deal with the 
problem of fractionated lands, and has failed every time. The long 
history of trust management problems is not going to be corrected 
quickly. Developing and implementing a comprehensive solution is going 
to take time. The Indian Land Working Group is one of

[[Page S8089]]

the leaders in this area and has submitted a proposal for Congress to 
consider. I applaud the efforts of Senators Campbell and Inouye and the 
members of the Indian Affairs Committee for taking on this difficult 
issue. Some of the proposals include improved record keeping, probate 
and estate planning programs, and new processes for consolidating 
fractionated lands. I look forward to working with the Committee to 
craft a comprehensive solution.
  While the larger issue of fractionated ownership is being considered 
by the Senate, I believe it is appropriate to consider a stop-gap 
measure to help stimulate near-term economic development on 
fractionated Navajo lands. There is an abundance of oil and gas beneath 
the Navajo allotments, yet the allottees are unable to benefit from 
this wealth because of federal laws that make it very difficult for 
Indian allottees to lease their land. To illustrate, during the last 12 
years, $7 million in leasing bonuses has been paid to the state and 
federal government for leases in the checkerboard region of New Mexico, 
while only $27,000 has been paid to owners of Navajo allotments.
  The problem lies in the 1909 Mineral Leasing Act. The Act requires 
all persons who have an undivided interest in any particular parcel to 
consent to its lease. In the case of Navajo allottees, 100 percent of 
the allottees must consent to a lease of their land. Because of the 
fractionated land problem, obtaining 100 percent consent is often 
impossible because many owners cannot be located. Consequently, the 
Navajo allottees are precluded from the beneficial use of their land.
  The bill I am introducing today will facilitate the leasing of Navajo 
allotted land for oil and gas development. In the case of non-Indians, 
most states already allow mineral leases with less than 100 percent 
consent of the owners as long as all persons who own an interest 
receive the benefits from the lease. My bill simply extends similar 
benefits to Navajo allottees. The bill would authorize the Secretary of 
the Interior to approve an oil or gas lease connected to Navajo 
allotted land when less than 100 percent of the owners consent to such 
a lease. A similar bill was passed in the 105th Congress to facilitate 
mineral leasing of allotted lands on the Ft. Berthold Reservation in 
North Dakota.
  My bill proposes a graded system for lease approval. In situations 
where there are 10 or fewer owners of an allotment, 100 percent of the 
owners must consent to a lease. However, where there exists 11 to 50 
owners of an allotment, only 80 percent of the owners need consent. 
And, with more than 50 owners, 60 percent consent would be required. 
This graded system was suggested by the Navajo allottees.
  Mr. President, unemployment on the Navajo Reservation now exceeds 50 
percent. The opportunities for economic development on this land are 
few. It is not appropriate for the federal government to continue to 
deprive the legal owners of Navajo allotted lands the option to develop 
their land as they choose. This bill is a small step toward correcting 
the mistakes of the past and a bigger step towards providing economic 
prosperity for future generations of Navajo allottees.
  The bill has the support of the Navajo Nation and the Shii Shi Keyah, 
the principal Navajo Allottees' Association.
  Mr. President, I ask unanimous consent that a resolution from the 
Shii Shi Keyah Association and a letter from the Navajo Nation be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Shii Shi Keyah Association Resolution of the Board of Directors

       Whereas, the Board of Directors of Shii Shi Keyah 
     Association (``SSKA''), an unincorporated association of 
     Navajos who have ownership interests in allotments on or near 
     the Navajo Reservation, generally referred to as Navajo 
     Indian Country, has considered a number of issues relating to 
     oil and gas rights and revenues which require its attention;
       Whereas, United States Senator Jeff Bingaman will introduce 
     in the 106th Congress, 1st Session, a bill which begins ``To 
     permit the leasing of oil and gas rights on certain lands in 
     New Mexico held in trust for the Navajo Tribe or allotted to 
     a member of the Navajo Tribe, in any case in which there is 
     consent from a specified percentage interest in the parcel of 
     land under consideration for issue;''
       Be it Resolved that SSKA will support Senator Bingaman's 
     bill if it is amended to include the states of Utah and 
     Arizona.


                             certification

       The foregoing Resolution was adopted by the Board of 
     Directors of Shii Shi Keyah Association of Bloomfield, NM 
     with no votes against and no abstentions at a regular meeting 
     of the Board held on June 4, 1999.
                                  ____



                                            The Navajo Nation,

                                     Washington, DC, May 18, 1999.
     Re: Proposed Bill to Permit the Leasing of Oil and Gas Rights 
         on Certain Lands in New Mexico Held in Trust for the 
         Navajo Tribe or Allotted to a Member of the Navajo Tribe, 
         in any Case in which There Is Consent from a Specified 
         Percentage Interest in the Parcel of Land under 
         Consideration for Lease
     Hon. Jeff Bingaman,
     U.S. Senate,
     Hart Senate Office Building, Washington, DC.
       Senator Bingaman: Thank you for scheduling the April 8, 
     1999 meeting at the Nageezi Chapter. The Navajo Nation 
     appreciates your interest in the problems faced by Navajo 
     people regarding their allotted lands in northwestern New 
     Mexico.
       The Navajo Nation supports your efforts toward solving the 
     problems engendered by increasingly fractionated interests 
     held by Navajo individuals in allotted lands. We support the 
     intent of the bill, provided that it is supported by a 
     consensus of Navajo individuals that will be affected. In 
     addition, we can support most of the particulars of the bill, 
     although the Navajo Nation would request some minor revisions 
     to the bill before it is introduced, as explained below.
       Initially, we are concerned whether a consensus of affected 
     Navajo individuals support the proposed bill. The Navajo 
     Nation is concerned that the Shii Shi Keyah Association 
     apparently opposes the bill, as indicated in a letter to you 
     dated March 11, 1999 from the Association's attorney, Alan R. 
     Taradash, copy attached. We understand that the Shii Shi 
     Keyah Association is a respected organization comprised of 
     Navajo individuals numbering in the thousands.
       The approach suggested by Mr. Taradash, the conveyance of 
     fractionated interests into family trusts, appears to have 
     much to commend it. However, we are not sure that the family 
     trust approach and the approach reflected in the proposed 
     bill are mutually exclusive. The Navajo Nation 
     respectfully requests that your office continue to work 
     with affected Navajo individuals to assure that the bill 
     reflects the best approach or combination of approaches to 
     solve the problems facing those individuals. The Navajo 
     Nation would be happy to work with your office in this 
     regard, and stands ready to provide any assistance your 
     office may need.
       In addition, the Navajo Nation is very concerned with the 
     effect of section 1(b)(3)(A) of the proposed legislation, 
     which would appear to make the Navajo Nation a party to any 
     lease of oil and gas rights in allotted lands in which it 
     might own a minority interest. While the Navajo Nation has no 
     objection to any minority interest it might hold being leased 
     in accordance with the provisions of the bill, if that is the 
     approach that a consensus of affected Navajo individuals 
     support, the Navajo Nation must opposed being made a party to 
     any such lease. The Navajo Nation has very deliberate 
     policies and requirements regarding terms and conditions in 
     leases to which it is a party. In the present judicial 
     climate, lease terms and conditions can have a profound 
     effect on the sovereignty of an Indian nation. Therefore, we 
     must respectfully request that section 1(b)(3) of the bill be 
     changed to read in its entirety as follows:
       ``(3) Effect of approval.--On approval by the Secretary 
     under paragraph (1), an oil or gas lease or agreement shall 
     be binding upon each of the beneficial owners that have 
     consented in writing to the lease or agreement and upon all 
     other parties to the lease or agreement and shall be binding 
     upon the entire undivided interest in a Navajo Indian 
     allotted land covered under the lease or agreement.''
       Finally, the Navajo Nation respectfully requests that all 
     references to the ``Navajo Tribe'' be changed to refer to the 
     ``Navajo Nation,'' and that the reference be deleted in 
     section 1(a)(3) to the Navajo Nation as ``including the 
     Alamo, Ramah and Canoncito bands of Navajo Indians.'' The 
     Term ``Navajo Nation'' is the legal name of the Navajo 
     Nation, and by Navajo Nation statute is preferred over the 
     term ``Navajo Tribe.'' We must object to the reference to the 
     three bands (but not others) because of the possible negative 
     inference that there exists some ambiguity as to whether such 
     bands are constituent parts of the Navajo Nation. There is no 
     such ambiguity now, and we wish to avoid creating any. The 
     reference can safely be deleted without causing any 
     uncertainty in the definition.
       Unfortunately, fractionated interests remains a significant 
     problem within the Navajo Nation, as we understand it is also 
     within our Indian nations. The Navajo Nation would like to 
     work your office and with other members of Congress on 
     comprehensive, long-term solution to this problem. If you 
     have any questions, or need additional information, please 
     contact the Navajo Nation Washington Office.
           Sincerely,
                                                Estelle J. Bowman,
                                               Executive Director.

[[Page S8090]]

                                 ______