Cobell, with her lawyers, including lead lawyer Gingold (seated), in 2009

Cobell, with her lawyers, including lead lawyer Gingold (seated), in 2009

Cobell Conundrum: Don’t Lien on Me

As Indian appellants of the Cobell settlement ponder continuing their appeal after the D.C. Circuit Court of Appeals shot them down May 22, a major tribal concern about the deal is being highlighted by one appellant. Kimberly Craven, a Sisseton-Wahpeton Oyate citizen and landowner, says the $1.9 billion land consolidation portion of the Cobell settlement will operate under Indian Land Consolidation Act rules—rules established decades before the settlement was reached—unless U.S. Department of the Interior Secretary Ken Salazar waives this provision.

Craven raised the concern on Facebook June 11 and confirmed her alarm to Indian Country Today Media Network after that posting. The implication is that this issue will help her decide whether to continue her appeal, but she hasn’t said that on the record. What is known is that she recently replaced the lawyer who represented her in the appeal, Ted Frank, of the Center for Class Action Fairness. Frank says Craven is hiring a new lawyer.

Craven is concerned because under the old rules, all the income from sales of land acquired by the federal government under the Cobell settlement will have liens placed on it until the liens pay the government back for the land. This adds a layer of federal intervention that was supposed to be alleviated under the land consolidation portion of the deal. Tribal leaders have expressed their dismay with the lien setup, and Interior knows that tribes have widely recommended that the liens be waived, especially for interests purchased with Cobell settlement funds.

A January 2012 report by the Interior Department, Cobell Land Consolidation Program Draft Plan, notes that the Indian Land Consolidation Act, enacted in 1983, provides for liens and waivers in several circumstances and explains that “[t]he original intent of the lien was to create a revolving fund by which additional land could be purchased by the [Indian Land Consolidation Program (ILCP)]. In this regard, Congress intended that the revenue from the liens would serve as a source of funding for the continuation of the ILCP.”

In other words, the liens were a way to keep a federal government program running on the backs of the Indians and tribes it was supposed to be helping, rather than having Congress appropriate new funds each year to keep the program running. Craven is concerned that the same thing—or worse—could happen under the Cobell deal if the same rules apply.

“The Department is currently analyzing this issue,” according to the report, which means it is in the process of deciding whether the old law with its lien methodology will trump the terms of the Cobell settlement, which does not have to rely on liens.

In an op-ed published by ICTMN in April, Gabe Galanda, a partner at the Indian affairs law firm Galanda Broadman, wrote: “Why is the $1.9 billion being used to perpetuate the fractionation status quo and even worse, setting up tribe versus member land disputes?” He labeled Interior’s land consolidation plan a “disaster in the making.”

“Interior threatens to facilitate the forced sale and unconstitutional taking of tribal member-owned fractionated lands, on behalf of tribal governments – with Cobell settlement monies,” Galanda wrote. “Some perspective is in order: The federal government has categorically mismanaged member-owned lands for the last 125 years. For the last 16 years, a putative class of tribal members lead by the Native American Rights Fund sued the United States to ‘right’ that egregious wrong. Justice was purportedly served in 2010, in the form of a $3.4 billion settlement, $1.9 billion of which was allocated for Indian land consolidation.

“Now, after epic insult upon chronic injury to Indians, Interior proposes to spend over half of tribal members’ trust mismanagement settlement monies on a program that will in pertinent part allow tribes to forcibly end tribal member land tenure. Really?” asked Galanda.

David Hayes, deputy secretary at Interior, has reportedly told some tribal officials that the liens will be waived for lands purchases related to the settlement. However, there are some indications that the liens are not likely to be waived altogether under Cobell. Nedra Darling, a spokeswoman for Interior, told ICTMN in February that the liens were part of the plan: “The Indian Land Consolidation Act has a provision within the law that allows the United States to place a lien on the interests in land acquired for tribes to recover or recoup the purchase price from income derived from the leasing and other income-generating uses of the land… Upon recovery of the purchase price the lien is removed and all income derived from the use of the land goes to the respective tribe. While the lien is in place the income collected for the use of the land is used to purchase additional interests from individual Indians for the respective tribe and the lien/recoup cycle begins again on those interests.” Also, language in a draft plan issued by Interior after Hayes’ promise contains the lien provisions.

Some tribal officials are not concerned. “The majority of leaders don’t like the lien program and would prefer to receive the income from the acquired land more quickly,” says John Dossett, a lawyer for the National Congress of American Indians. “However, there are some tribes that like the lien program because it generates revenue for fractionated land acquisition.”

Dossett says that even if the liens are not waived, the lien funds should go back into buying more land for the tribe where the allotment is located. Still, many tribal officials would like to get a waiver in writing because it would remove a layer of federal intervention.

Dossett also notes that the program is set up to be voluntary.  “There are no forced sales, so there is no conflict between tribes and Indian landowners,” he says, although that theory has yet to be tested under the complex rules that are still being written.

Galanda says Interior would do much better to spend the money on funding the Indian estate planning provisions of the American Indian Probate Reform Act of 2004. “Indian estate planning is synonymous with Indian land tenure and self-determination,” he wrote in April. “Spending those monies on tribal government land acquisition, especially via forced sale, is simply not the best and highest—or a just—use of federal taxpayer monies.”

Whether any modifications of the land consolidation plan will take place remains to be seen. Interior says it is still mulling it over. As for Craven, she is still deciding if she will take her appeal further.

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