The Cobell settlement, approved on November 24, 2012, provides for a $1.9 billion Trust Land Consolidation Fund (Fund). The settlement charges the U.S. Department of the Interior with the responsibility to use the Fund within a 10-year period to acquire, at fair market value as defined in the Indian Land Consolidation Act (ILCA). The overall goal of the Cobell Land Buy-Back Program is to reduce the number of fractional interests through individually-owned Indian land transfers to tribes.
On August 22, 2013, I was invited to participate on a discussion carried live on Native American Calling (NAC) regarding the Cobell Land Buy Back Program. Assistant Secretary, Indian Affairs (ASIA) Kevin Washburn explained the program and then fielded questions from around the country from individual Indian landowners. I must state that ASIA Washburn did a wonderful job with the background and information he provided.
There were some moments that due to his limited time as the ASIA where he could have used some support from the Bureau of Indian Affairs technical specialists, but those things happen. AISA Washburn displayed a very heartwarming connection with his audience though and that was a relief considering past discussions and consultations.
As part of President Obama's commitment to regular and meaningful consultation and collaboration with federally recognized Indian tribes, Presidential Memorandum on tribal vonsultation was issued and signed during the White House Tribal Nations Conference on November 5, 2009. The President directed federal agencies to develop plans to implement Executive Order 13175, Consultation and Coordination with Tribal Governments.
I still have concerns related to administrative plans. These concerns should have been addressed prior to the finalization of the Land Buy-Back Program plan. These concerns are:
1) how were the initial project tribes were selected in comparison to the tribes who actually experience the greatest individually owned highly fractionated interests;
2) the diminishment of available funds if BIA establishes central clearing houses which require initial startup costs, time to fill new positions, if current employees are selected for these positions, the backfill to pick up the current workload due to vacancies. There would be promotions for some individuals, relocation costs which also include those employees being unable to contribute immediately due to transition on both ends of their old and new postions;
3) the Land Title Recording Office’s ability to be timely in providing certified title status reports to ensure that true and correct ownership conveyances will occur;
4) the impact to provide other title and appraisal services throughout the organization timely while the Land Buy Back Program is being administered.
Regardless of these concerns, more importantly, the following are my “key” concerns, which need immediate discussion and explanation.
Fair Market Value
What method of fair market value (FMV) estimation has been chosen? Typically, a land specific appraisal is conducted based upon the type of land, use, existing or lack of improvements, and in accordance with the Office of Appraisal Services appraisers to strictly follow the Uniform Standards of Professional Appraisal Practice (USPAP) and Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA) guidelines. During the NAC airing, there was much discussion regarding a new terminology referred to as “mass” appraisals.
Basically the reference is to a market analysis, which pretty much establishes FMV without much regard to land specific value but enables the Bureau of Indian Affairs to “place all tracts into one box and pay the same value.” BIA will dance around this definition, but it is what it is and the landowner is the loser, or winner in some circumstances. How would you like to get paid the same value for land that is more developed than your neighbors? Could happen.
Interest on funds deposited
I put forth the question “where has the $1.9 billion been deposited, how long, and what is the plan for use and by whom for any interest funds earned?” Initially AISA Washburn said that was a good question and he couldn’t respond. Then later he stated that all funds for the program would be spent in the program. It would be nice to know exactly rather than to leave it on the table for a later discussion where tribes may not have any input.
And finally, it’s easy to develop plans behind closed doors in Washington, D.C. by folks who have never worked on the frontlines, or at the agencies, where we have to deal with tribal members who are desperately waiting for a rental payment because their utilities are about to be shut off, their rent is past due and they face eviction, they have multiple families living in the same housing unit, and without assistance from those frontline BIA staff, they have very little hope. You can make a box and everything may not fit into it. But somehow, someway, those frontline folks mostly resolve these issues in spite of plans made by those who have not seen a frontline day at an BIA reservation agency.
It might work, or it could work, and it should work. But it doesn’t always work and Indian country has very few shots left to make life better?
Jay Daniels has 30 years of experience working in Indian country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at RoundHouseTalk.com.