Post by mdenney on Jul 18, 2007 19:31:20 GMT -5
Introduction; Indian Land Consolidation Act
Summer 2003
This article originally appeared in the Groundhog Day column in News From Native California, Volume 16, Number 4.
Introduction
This is the first edition of Groundhog Day since the passing of Allogan Slagle. Allogan was a great advocate for Indian people and an inspiration to all of us who worked with him over the years. When I first became Executive Director of California Indian Legal Services (CILS) over twenty years ago, Allogan was already a member of our Board of Directors, and shortly after my selection, he became our chairperson. Of course, we all wanted Allogan to lead us, knowing that no one would work harder.
Every year Allogan would donate hundreds and hundreds of hours to helping unrecognized tribes and other CILS clients achieve their full status under the law. It seemed like not a week would pass without Allogan excitedly rushing into the office with another thousand pages of important documents that he had unearthed after weeks in the dark caverns of some federal archive or another.
Allogan's contributions were appreciated by all who knew him - not just for the quality of his work and the depth of his intellect, but for the spirit he brought to it. I have in my office a picture of Allogan and me taken many, many years ago when he received a Volunteer Attorney of the Year award from the State Bar of California. It only seems like there are a million attorneys in California; at the time there were only about 150,000. But to me and the rest of us at CILS, Allogan will always be one in a million and he will hold a special place in our hearts and minds for as long as we live.
Thus, it is with great pride, as well as humility, that CILS initiates the continuation of Groundhog Day in memory of Allogan. We beg your indulgence as we learn how to fill Allogan's shoes in writing this column and continuing his legacy. Since no single person can have the energy, insight, and breadth of knowledge that Allogan had, the staff at CILS will be sharing responsibility for this column from issue to issue, hoping that our collective experience and knowledge begin to mirror Allogan's.
Today's column deals with a development in federal policy that Allogan would have been extremely involved in and concerned about - the Indian Land Consolidation Act (ILCA) and efforts to use the problem of land fractionation as an excuse to terminate the status of Indians, especially California Indians, so that their lands pass out of trust.
The Problem
The problem of fractionated - divided - interests in Indian trust lands has plagued Indian Country since shortly after the General Allotment Act was enacted in 1887. Under the General Allotment Act, individual Indians who held an interest in trust land could leave their interest in trust to their descendants or other Indians. If the deceased person made a will leaving all the interest to only one person, the entire interest would stay intact. However, most Indians did not make wills (and still do not) - and so their trust interests would be divided up among each of the children or other heirs when they passed on. With each successive generation, these trust interests became divided into smaller and smaller fractions. An additional complication was the fact that if there was no will, the land would pass based upon the probate laws of the particular state where the land was located. Thus, an Indian who had trust interests in both North Dakota and South Dakota, and who died without a will, might have his or her estate divided differently in North and South Dakota. Now, over 110 years since the passage of the General Allotment Act, fractionated interest is an epidemic on most allotted reservations. For example, on just one reservation, there are almost 3,000 individuals who trust interests are estimated to have a value of less than $1.00. Tens of thousands of Indians have undivided trust interests that are valued at less than $50.00. When no single owner has more than a tiny interest in an allotment, it is extremely difficult to use the land in ways that are the most beneficial.
The Indian Land Consolidation Act (ILCA)
As most people familiar with Indian affairs know, the problem of fractionated interests and the difficulty that the Bureau of Indian Affairs (BIA) has in managing these trust interests has led to the filing of a massive class action lawsuit known as Cobell. What is less well known is that long before the Cobell lawsuit was filed, Congress and the Department of Interior attempted to enact legislation that would consolidate Indian lands and counteract fractionation. This legislation is known as the Indian Land Consolidation Act, or ILCA. These earlier attempts - in the 1980's and 1990's - to consolidate Indian lands were eventually declared unconstitutional by the Supreme Court in two separate lawsuits. These first attempts by the federal government to address fractionation sought to extinguish very small trust interests and have those lands consolidated under tribal ownership. Although many believe that this was, and is, good policy (creating more tribal trust land), the problem was that the United States was not willing to pay the Indian owners of the small trust interests anything for taking their interests away. The Supreme Court ruled that these interests could not be consolidated and taken away without compensation.
ILCA Amendments
In the year 2000, Congress passed, and the President signed, new amendments to the Indian Land Consolidation Act (ILCA). These amendments were not widely understood when adopted, and even today are very complex and difficult to understand. (See CILS News, Vol. 9, Summer 2002, pgs. 6-7, 9 for more information.) As Secretary of the Interior Gale Norton started to have training sessions through which her understanding of the Act and her plans for implementation became more well known, it was clear that there was a shift from trying to extinguish small trust land interests to terminating the status of the Indians who owned these interests: if an heir was no longer considered an Indian, then the land would go out of trust. Those of us familiar with California Indian history are all too familiar with this approach to solving complex problems: if we terminate Indians, then we eliminate any trust obligation to them, and we can either take their lands or absolve ourselves of responsibility for managing and protecting these scarce and valuable resources. If the 2000 amendments go into effect, a majority of Indian heirs would no longer be considered Indian for purposes of BIA probate, and perhaps for other purposes as well. These heirs would either be barred from inheriting trust interests or the interests would pass to them in fee. This is a devastating change in federal policy, and will cause great distress throughout Indian Country - but especially in California.
Impact on California Indians
California has less than a half of a million acres remaining in trust. Of this, about 1/5 is held in individual trust, and much of that land would pass out of Indian ownership within a very short period of time if the 2000 amendments were allowed to take effect. This is the result of the special and sordid history of the federal and state governments' involvement in Indian affairs in California. California treaties were not ratified. Not much land was ever acquired or set aside in trust, and much of the trust lands were subsequently terminated and not all of them have been restored. Also, there are many Indians in California who are not enrolled members of federally recognized tribes and thus might not be considered Indian within the meaning of the 2000 amendments.
Status of 2000 Amendments
Fortunately, the 2000 amendments could not take effect without a somewhat complicated certification process. The Secretary has never completed that certification process and the 2000 Amendments have not yet been implemented. However, the fact that the law is still on the books and could be certified and implemented is an intolerable situation. Many Indian seniors do not know whether to leave their land in trust or whether to take it out of trust so they can give it to their children and grandchildren. As attorneys and advisors to individual Indians and tribes, CILS acutely feels their distress, but cannot provide any iron-clad advice at this time. There were other changes that were incorporated in the 2000 amendments for the more beneficial purpose of consolidating small interests so that these allotments would have more value and usefulness. However, upon more considered reflection, some of these proposals were the subject of extensive criticism throughout Indian Country, and there has been a strong current calling for either repeal or reform of the 2000 amendments.
Solutions
These criticisms resulted in a bill that was introduced in the last session of Congress that would have repealed substantial portions of the 2000 amendments - as well as initiating many new changes to Indian probate and the management of Indian trust lands. This bill contained many novel approaches to dealing with the problem of fractionation, but also was very sensitive to and supportive of the need for Indian trust lands to remain in trust. For example, it introduced the idea of a "passive" trust, which provided that such land was immune from state jurisdiction and taxation, but that the individual owner of the interest had the right to manage that land or that interest as he or she saw fit without the intervention or oversight of the Bureau of Indian Affairs. But most importantly, the bill included a special definition of Indian that applied only to California. This definition of Indian is extremely broad - basically it defines as an Indian any individual who was descended from an Indian inhabitant of California in 1851. By broadly defining California Indian, this bill guarantees that Indian trust lands in California would remain in trust from generation to generation. This is important not simply from the standpoint of protecting Indian land, but in terms of providing a dramatic recognition - perhaps the most dramatic ever - of the special status of California Indians. CILS was instrumental in developing this definition and seeking its adoption by the Senate Committee on Indian Affairs, as well as the full Senate. The bill was passed by the Senate Committee on Indian Affairs during the last session of Congress as part of the Omnibus Indian Act of 2002, and came within a day or two of passage by the House of Representatives before they adjourned last year.
What Can Tribal Leaders Do?
Recently, the Secretary of the Interior announced that the BIA and the Office of Special Trustee are creating a working group for the purpose of reviewing and developing proposals for dealing with Indian probate, land consolidation, and land fractionation. The Secretary's announcement, which is reproduced at Federal Register 19845, April 22, 2003, calls for the participation of tribal officials in this working group and is asking for nominations. Tribal leaders, especially in California, should not let this call go unheeded. California participation will be crucial to ensuring that the special provisions of S. 550 that relate to California Indians and California trust lands are preserved. Finally, the Senate Committee on Indian Affairs has scheduled a hearing for May 7, 2003 on S. 550. These are times of great import and great opportunity and risk for California Indians as they struggle to preserve their lands. Stay tuned, and we'll keep you posted. For more up- to- date developments, please check CILS' website at www.calindian.org.
Author Bio Michael Pfeffer, Executive Director of CILS, started working at CILS in 1978. Over the years, he has had direct involvement in virtually every aspect of California Indian policy and law.
About News From Native California
News from Native California is a quarterly magazine devoted to California Indian culture. They have been publishing for fifteen years and currently have a circulation of about 5,000 copies per issue. With its calendar of events, news roundup, feature articles, and regular columns on art, language, traditional skills, grants, and legal concerns, News has kept people informed and at times even inspired. They also sponsor performances, workshops, and other events, as well as several benefits for the Indian community each year, and serve informally as a center for information and connection. To get more information, request a free sample copy of the magazine, or subscribe, please call our offices at (510) 549-2802, email margaret@heydaybooks.com, or visit their website at www.heydaybooks.com/news (opens new window).
www.calindian.org/groundhog.summer2003.htm
Summer 2003
This article originally appeared in the Groundhog Day column in News From Native California, Volume 16, Number 4.
Introduction
This is the first edition of Groundhog Day since the passing of Allogan Slagle. Allogan was a great advocate for Indian people and an inspiration to all of us who worked with him over the years. When I first became Executive Director of California Indian Legal Services (CILS) over twenty years ago, Allogan was already a member of our Board of Directors, and shortly after my selection, he became our chairperson. Of course, we all wanted Allogan to lead us, knowing that no one would work harder.
Every year Allogan would donate hundreds and hundreds of hours to helping unrecognized tribes and other CILS clients achieve their full status under the law. It seemed like not a week would pass without Allogan excitedly rushing into the office with another thousand pages of important documents that he had unearthed after weeks in the dark caverns of some federal archive or another.
Allogan's contributions were appreciated by all who knew him - not just for the quality of his work and the depth of his intellect, but for the spirit he brought to it. I have in my office a picture of Allogan and me taken many, many years ago when he received a Volunteer Attorney of the Year award from the State Bar of California. It only seems like there are a million attorneys in California; at the time there were only about 150,000. But to me and the rest of us at CILS, Allogan will always be one in a million and he will hold a special place in our hearts and minds for as long as we live.
Thus, it is with great pride, as well as humility, that CILS initiates the continuation of Groundhog Day in memory of Allogan. We beg your indulgence as we learn how to fill Allogan's shoes in writing this column and continuing his legacy. Since no single person can have the energy, insight, and breadth of knowledge that Allogan had, the staff at CILS will be sharing responsibility for this column from issue to issue, hoping that our collective experience and knowledge begin to mirror Allogan's.
Today's column deals with a development in federal policy that Allogan would have been extremely involved in and concerned about - the Indian Land Consolidation Act (ILCA) and efforts to use the problem of land fractionation as an excuse to terminate the status of Indians, especially California Indians, so that their lands pass out of trust.
The Problem
The problem of fractionated - divided - interests in Indian trust lands has plagued Indian Country since shortly after the General Allotment Act was enacted in 1887. Under the General Allotment Act, individual Indians who held an interest in trust land could leave their interest in trust to their descendants or other Indians. If the deceased person made a will leaving all the interest to only one person, the entire interest would stay intact. However, most Indians did not make wills (and still do not) - and so their trust interests would be divided up among each of the children or other heirs when they passed on. With each successive generation, these trust interests became divided into smaller and smaller fractions. An additional complication was the fact that if there was no will, the land would pass based upon the probate laws of the particular state where the land was located. Thus, an Indian who had trust interests in both North Dakota and South Dakota, and who died without a will, might have his or her estate divided differently in North and South Dakota. Now, over 110 years since the passage of the General Allotment Act, fractionated interest is an epidemic on most allotted reservations. For example, on just one reservation, there are almost 3,000 individuals who trust interests are estimated to have a value of less than $1.00. Tens of thousands of Indians have undivided trust interests that are valued at less than $50.00. When no single owner has more than a tiny interest in an allotment, it is extremely difficult to use the land in ways that are the most beneficial.
The Indian Land Consolidation Act (ILCA)
As most people familiar with Indian affairs know, the problem of fractionated interests and the difficulty that the Bureau of Indian Affairs (BIA) has in managing these trust interests has led to the filing of a massive class action lawsuit known as Cobell. What is less well known is that long before the Cobell lawsuit was filed, Congress and the Department of Interior attempted to enact legislation that would consolidate Indian lands and counteract fractionation. This legislation is known as the Indian Land Consolidation Act, or ILCA. These earlier attempts - in the 1980's and 1990's - to consolidate Indian lands were eventually declared unconstitutional by the Supreme Court in two separate lawsuits. These first attempts by the federal government to address fractionation sought to extinguish very small trust interests and have those lands consolidated under tribal ownership. Although many believe that this was, and is, good policy (creating more tribal trust land), the problem was that the United States was not willing to pay the Indian owners of the small trust interests anything for taking their interests away. The Supreme Court ruled that these interests could not be consolidated and taken away without compensation.
ILCA Amendments
In the year 2000, Congress passed, and the President signed, new amendments to the Indian Land Consolidation Act (ILCA). These amendments were not widely understood when adopted, and even today are very complex and difficult to understand. (See CILS News, Vol. 9, Summer 2002, pgs. 6-7, 9 for more information.) As Secretary of the Interior Gale Norton started to have training sessions through which her understanding of the Act and her plans for implementation became more well known, it was clear that there was a shift from trying to extinguish small trust land interests to terminating the status of the Indians who owned these interests: if an heir was no longer considered an Indian, then the land would go out of trust. Those of us familiar with California Indian history are all too familiar with this approach to solving complex problems: if we terminate Indians, then we eliminate any trust obligation to them, and we can either take their lands or absolve ourselves of responsibility for managing and protecting these scarce and valuable resources. If the 2000 amendments go into effect, a majority of Indian heirs would no longer be considered Indian for purposes of BIA probate, and perhaps for other purposes as well. These heirs would either be barred from inheriting trust interests or the interests would pass to them in fee. This is a devastating change in federal policy, and will cause great distress throughout Indian Country - but especially in California.
Impact on California Indians
California has less than a half of a million acres remaining in trust. Of this, about 1/5 is held in individual trust, and much of that land would pass out of Indian ownership within a very short period of time if the 2000 amendments were allowed to take effect. This is the result of the special and sordid history of the federal and state governments' involvement in Indian affairs in California. California treaties were not ratified. Not much land was ever acquired or set aside in trust, and much of the trust lands were subsequently terminated and not all of them have been restored. Also, there are many Indians in California who are not enrolled members of federally recognized tribes and thus might not be considered Indian within the meaning of the 2000 amendments.
Status of 2000 Amendments
Fortunately, the 2000 amendments could not take effect without a somewhat complicated certification process. The Secretary has never completed that certification process and the 2000 Amendments have not yet been implemented. However, the fact that the law is still on the books and could be certified and implemented is an intolerable situation. Many Indian seniors do not know whether to leave their land in trust or whether to take it out of trust so they can give it to their children and grandchildren. As attorneys and advisors to individual Indians and tribes, CILS acutely feels their distress, but cannot provide any iron-clad advice at this time. There were other changes that were incorporated in the 2000 amendments for the more beneficial purpose of consolidating small interests so that these allotments would have more value and usefulness. However, upon more considered reflection, some of these proposals were the subject of extensive criticism throughout Indian Country, and there has been a strong current calling for either repeal or reform of the 2000 amendments.
Solutions
These criticisms resulted in a bill that was introduced in the last session of Congress that would have repealed substantial portions of the 2000 amendments - as well as initiating many new changes to Indian probate and the management of Indian trust lands. This bill contained many novel approaches to dealing with the problem of fractionation, but also was very sensitive to and supportive of the need for Indian trust lands to remain in trust. For example, it introduced the idea of a "passive" trust, which provided that such land was immune from state jurisdiction and taxation, but that the individual owner of the interest had the right to manage that land or that interest as he or she saw fit without the intervention or oversight of the Bureau of Indian Affairs. But most importantly, the bill included a special definition of Indian that applied only to California. This definition of Indian is extremely broad - basically it defines as an Indian any individual who was descended from an Indian inhabitant of California in 1851. By broadly defining California Indian, this bill guarantees that Indian trust lands in California would remain in trust from generation to generation. This is important not simply from the standpoint of protecting Indian land, but in terms of providing a dramatic recognition - perhaps the most dramatic ever - of the special status of California Indians. CILS was instrumental in developing this definition and seeking its adoption by the Senate Committee on Indian Affairs, as well as the full Senate. The bill was passed by the Senate Committee on Indian Affairs during the last session of Congress as part of the Omnibus Indian Act of 2002, and came within a day or two of passage by the House of Representatives before they adjourned last year.
What Can Tribal Leaders Do?
Recently, the Secretary of the Interior announced that the BIA and the Office of Special Trustee are creating a working group for the purpose of reviewing and developing proposals for dealing with Indian probate, land consolidation, and land fractionation. The Secretary's announcement, which is reproduced at Federal Register 19845, April 22, 2003, calls for the participation of tribal officials in this working group and is asking for nominations. Tribal leaders, especially in California, should not let this call go unheeded. California participation will be crucial to ensuring that the special provisions of S. 550 that relate to California Indians and California trust lands are preserved. Finally, the Senate Committee on Indian Affairs has scheduled a hearing for May 7, 2003 on S. 550. These are times of great import and great opportunity and risk for California Indians as they struggle to preserve their lands. Stay tuned, and we'll keep you posted. For more up- to- date developments, please check CILS' website at www.calindian.org.
Author Bio Michael Pfeffer, Executive Director of CILS, started working at CILS in 1978. Over the years, he has had direct involvement in virtually every aspect of California Indian policy and law.
About News From Native California
News from Native California is a quarterly magazine devoted to California Indian culture. They have been publishing for fifteen years and currently have a circulation of about 5,000 copies per issue. With its calendar of events, news roundup, feature articles, and regular columns on art, language, traditional skills, grants, and legal concerns, News has kept people informed and at times even inspired. They also sponsor performances, workshops, and other events, as well as several benefits for the Indian community each year, and serve informally as a center for information and connection. To get more information, request a free sample copy of the magazine, or subscribe, please call our offices at (510) 549-2802, email margaret@heydaybooks.com, or visit their website at www.heydaybooks.com/news (opens new window).
www.calindian.org/groundhog.summer2003.htm
