When the United States supposedly sent $1,000 checks to over 300,000 Indians in time for Christmas or the New Year, the holiday good tidings read: “South Dakota to receive $115M in Cobell monies.” “Cobell settlement brings $25M to Wyoming.” “50,000 Oklahoma Indians to share in $3.4B Cobell settlement.” And my favorite: “Bank floor collapses in rush to cash checks.”
With that holiday hype and new money in Indian hands, it is easy to understand Indian Country’s recent euphoria about the historic $3.4 billion Cobell settlement. Taking full advantage of that newfound goodwill, the Department of the Interior also announced its “Land Buy-Back Program for Tribal Nations” just before Christmas. Backed by $1.9 billion of the Cobell settlement dollars, which Congress disbursed to resolve tribal member historic land and money mismanagement claims against the U.S., Interior announced its plans to now purchase fractionated allotment land for tribal governments.
“Freeing up fractionated lands for the benefit of tribal nations will increase the number of acres in tribal land bases, stimulate economic development and promote tribal sovereignty and self-determination,” said Interior Deputy Secretary David J. Hayes in a release. “This initial plan will guide this landmark effort, and we will continually update the plan to reflect lessons learned and tribal input. We know that success will only happen with the leadership of tribes, and we look forward to working through our nation-to nation relationship to implement the important initiative.”
Note the void of any mention whatsoever of individual Indians, whose lands will now be “bought back” by the U.S. on behalf of tribes. In fact, in proclaiming benefit to tribal nations and deference to tribal governmental leadership, tribal members seem to be a federal afterthought, yet again, even though it is members’ settlement money and members’ property rights in play.
As I wrote last year, “Interior’s proposal is ripe for disaster because it would spawn property ownership clashes of enormous legal and socioeconomic consequence. In many instances, the fight would be between tribal governments and impoverished tribal members—pinning tribes against their own citizens, and causing actionable intra-tribal conflicts of interest for the United States.” In the last year, Interior does not appear to have done anything to assuage stated tribal member concerns.
Interior, which, let’s not let it forget, must fulfill the United States’ trust responsibility to both tribal governments and members, cannot reconcile those BIA conflicts of interest that are inherent in consolidation; specifically in regard to the agency’s stated strategy of “identify[ing] tracts with relatively low fractionation and a few ‘large’ interest owners, the acquisition of whose interests could bring a tribe to a controlling level of interest in that tract with a minimal number of acquisitions.” With trust duties running to both the buyer and seller(s) in such an acquisition, the BIA cannot avoid breaching them to one party or the other, if not both parties.
The BIA’s conflict predicament is already acute. Its Pacific Northwest Regional Office is currently embroiled in two active “forced sales” of allotted land, as that phrase is used in the Indian Land Consolidation Act, 25 U.S.C. § 2204(a). In both instances, a tribal government is forcing the sale of commercially valuable member-owned allotment land. And rather than protecting the members and their families from having their ancestral lands unconstitutionally and otherwise illegally taken, the Bureau is aggressively facilitating those sales for the tribes, at below fair market value, and without proper member notice to or consultation with the allottees. That was most certainly not the scenario Congress intended when passing Section 2204 30 years ago.
Interior’s plan does not contemplate how the BIA will even attempt to resolve its trustee conflicts in any way that will avoid breach to either the tribe or member(s). Meanwhile, Interior feigns that its new buy-back program is only for “purchase fractional interests in American Indian trust lands from willing sellers.” It is not; recall the above-quoted strategy of bringing tribes into a “controlling level of interest” in allotted lands—in veiled reference to the forced sale provision of Section 2204. Make no mistake, the program will purposefully encourage more forced sales, against unwilling Indian sellers.
What is more, Interior will pay itself $285 million of the $1.9 billion earmarked in Cobell for land consolidation, to administer the program. In other words, 15 percent of those settlement monies will be used to pay Interior to cause the sale of member-owned lands to tribal governments. Interior’s approach counsels for austerity, especially considering alternatives such as funding Native-administered programs to stem fractionation. While professing encouragement of “tribal sovereignty and self-determination”—and with NCAI shilling for the program on behalf of tribal governments—Interior does not appear to have seriously considered grassroots Indian solutions.
For example, Interior seems to have rejected the premise shared with it by Professor Douglas Nash (Nez Perce), that Indian estate planning effectively reduces fractionation, while reducing—not increasing—the already high costs of Indian land management. Indeed, 2005 audit findings from the BIA’s own Indian estate planning pilot program show that 83.5 percent of the time, proper Indian will-writing stems fractionation. A fraction of that $285 million, if dedicated to Indian estate planning by Native lawyers and other professionals, would reduce fractionation. Why is Interior not dedicating any money to this BIA-proven solution?
Because, as Professor David Wilkins (Lumbee) sagely explains, Interior’s plan is premised on the presumption that the solution “to indigenous problems is only a matter of a simple adjustment of pre-existing programs and policies.” Indeed: “Rarely do change agents investigate the ideological or structural underpinnings of federal programs, laws, doctrines—believing instead that the basic federal structure and legal arrangements are sound and that all that is needed is a minor tweaking of the system or its component parts. This is evident in the recent $3.4 billion Cobell congressional settlement.”
Professor Wilkins continues: “Despite reams of evidence and several court opinions that the Bureau of Indian Affairs and the Department of Interior had mismanaged Indian trust account funds for well over a century, the Bureau, the major culprit in the mismanagement, was entrusted by Congress with the authority to use $1.9 billion of the settlement package to devise a land consolidation plan to address the problems that the Bureau itself had spawned and perpetuated.” Now, Interior is entrusting itself with $285 million to correct those age-old problems. Yet another federal Indian bureaucracy, to be managed by career BIA employees—what “lessons learned?”
Do folks other than Professors Nash and Wilkins not see the acute philosophical and practical, and impending constitutional and legal, problems with what Interior is now proposing? Indian lands are now not only at risk of continued federal trust mismanagement for reasons Professor Wilkins offers, but of being forcibly sold out of tribal member hands—as they were starting in the late 1800s. Only this time the forced takings will not be caused by non-Indians; but instead by individual Indians’ own tribes, backed by the full faith and credit of the United States—those Indians’ trustee.
With Interior soon set to “dialogue with tribal nations” about its plan—on January 31 in Minneapolis, February 6 in Rapid City, and February 14 in Seattle—hopefully tribal member landowners will also stand, and be allowed, to voice their concerns. In turn, hopefully Interior will start to take American Indigenous Peoples’ ideas about their property rights into account, before the U.S. repeats its same mistakes of the last 125 years. If, in the end, all that results is Interior’s currently proposed minor tweaking of the federal Indian land tenure system, mark my words: to certain tribal members, some day it will not be good tidings that Interior brings to you and your kin.
Gabriel S. Galanda is a lawyer with Galanda Broadman, PLLC, in Seattle, and a member of the Round Valley Indian Tribes.