To quote an Indianz.com headline: “Interior’s land consolidation plan is a disaster.” The Department of the Interior’s proposal to spend $1.9 billion in taxpayer dollars authorized by the Cobell settlement focuses myopically on effecting consolidation through tribal government land acquisition.
As I explained in the column under that Indianz.com headline, 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.
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?
Interior’s “plan” is more of a restatement of tribal government comments heard at consultation sessions. Conspicuously absent from that restatement, though, are any tribal member remarks about the Department’s particular strategy to “identify 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.”
Interior also gives short shrift to what seems to be the most obvious solution to stemming further fractionation: Indian estate planning. The Department admits that through estate planning “some allotments today are still owned by single individuals,” and acknowledges many stakeholders’ suggestions “that the Department place a priority on estate planning, drafting of wills, and probate, stating that this was an opportunity to efficiently purchase interests before they were further fractionated.” Yet Interior’s plan focuses little attention – lip service at best – on Indian estate planning. Why?
The plan’s stated intent is to implement the land consolidation provisions contained in the Indian Land Consolidation Act (ILCA), which was enacted in the 1980s and chiefly amended in 2004 through the American Indian Probate Reform Act (AIPRA). AIPRA was designed to reduce fractionation, primarily through Indian estate planning. But as with many Congressional mandates for Indian Country, AIRPA has for the most part never been funded.
Interior’s plan should focus a meaningful portion of the $1.9 billion on funding AIRPA’s comparably inexpensive Indian estate planning provisions. 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.
Consider the formal comments on Interior’s plan submitted by Professor Douglas Nash, Nez Perce lawyer and Director of the Institute for Indian Estate Planning and Probate at Seattle University’s School of Law: “The experience of the Institute over the past seven years has consistently demonstrated that when effective estate planning is provided to Indian land owners, fractionation is avoided or reduced approximately 87% of the time.” Audit findings from a 2005 Bureau of Indian Affairs Indian estate planning pilot program likewise concluded that 83.5 percent of the time, proper Indian will writing reduces and possibly altogether avoids fractionation.
Professor Nash further argues that as Indian estate planning reduces fractionation, it will also reduce the high costs of Indian land trust management. “This means that the number of interests the BIA is obliged to track and administer is reduced as are the resultant costs and it means that in many instances those interests are removed from the probate process thereby avoiding those costs.” In today’s political economic climate, or what Mark Trahant describes as the nascent federal Indian policy era of contraction, lessening the federal burden associated with allotted or restricted fee land stewardship and probate is wise. Setting up a titanic property rights clash between tribal governments and tribal members and their federal trustee under the auspices of “consolidation” – especially while the battle wounds from Cobell have not yet even begun to heal – is unwise. Indeed, as Professor Nash has remarked to Interior: “The draft plan focuses entirely on land purchases by and for tribes” – another disaster in the making for sure.
As one of the first Native American lawyers, who has dedicated his late career to Indian estate planning, probate reform, and land protection, Professor Nash knows what he is talking about. He tells me that as of 2011, his Institute has on a pro bono basis: educated over 24,000 Indian landowners as to the benefits of estate planning; helped over 4,000 Indian clients plan their estates, and executed over 2,000 wills and another 1,600 estate planning instruments for those clients. The Institute emphasizes counseling Indian landowners on their options in devising trust land interests in ways that will reduce or avoid further Indian land fractionation, if not completely remove their lands from the federal probate process. Again, the Institute and their clients have an 87% success rate in stemming fractionation.Galandadad
The taxpayer savings realized by the Institute’s services certainly far exceed the federal costs of administering the daily snowballing number of fractionated Indian trust interests – e.g., dividing a single lease payment among “dozens to more than 1,000 individual owners of a single allotment” (Cobell v. Norton (D.D.C. 2003)) – and of facilitating the perennially backlogged federal probate process. Notwithstanding, AIRPA has largely gone unfunded; the BIA has abandoned Indian estate planning programming since at least 2006; and now, Interior proposes to fund tribal land acquisition to the exclusion of Indian estate planning or other means of restorative justice post-Cobell.
With respect, Interior has it all wrong. They are band-aiding a malignant Indian injury. In time, what they currently propose will not alleviate but instead exacerbate the harm inflicted upon Indians ever since the passage of the Dawes Act in 1887. Tribal land acquisition may be part of the remedy to that historical harm, say, in the instance of willing Indian sellers, whose informed consent to forever cede their family lands has been obtained by the BIA. Forcing the sale and causing the unconstitutional taking of Indians’ lands, however, is in no way good for what ails Indians. A more appropriate remedy to fractionation, among others identified by Indian Country, is funding nationwide Indian estate planning efforts, in fulfillment of AIRPA. Tribal governments, too, should fund preventative work like that undertaken by Professor Nash’s Institute, even though the current fractionation disaster is completely the United States’ doing.
Indian estate planning is synonymous with Indian land tenure and self-determination. Most of the rest of Interior’s land consolidation plan is antithetical to those ideals.
Gabriel S. Galanda, an enrolled member of the Round Valley Indian Tribes, is a partner with Galanda Broadman, PLLC, in Seattle – (206) 691-3631 or firstname.lastname@example.org.