Land Buy-Back Program: Only the Beginning

The Department of Interior recently completed the final tribal consultations for the implementation of the Cobell Settlement's Land Buy Back Program for Tribal Nations. Tribal Consultations were previously conducted in Billings, Montana (July 15, 2011), Minneapolis, Minnesota (August 18, 2011), Seattle, Washington (September 16, 2011), Albuquerque, New Mexico (September 27, 2011), Phoenix, Arizona (September 29, 2011), Oklahoma City, Oklahoma (October 6, 2011) and Rapid City, South Dakota (October 26, 2011), in anticipation of the Court approval of the final Cobell Settlement Agreement which became final during November, 2012.

These tribal consultation meetings were to address the continued proliferation of thousands of new trust accounts caused by the "fractionation" of land interests through succeeding generations. The Settlement established a $1.9 billion fund for the voluntary buy-back and consolidation of fractionated land interests. The land consolidation program will provide individual American Indians with an opportunity to obtain cash payments for divided land interests and free up the land for the benefit of tribal communities.

One problem with these pre-consultation meetings is tribes were not entirely aware of the Department's proposed implementation plan prior to the consultation meetings so discussion was limited without pre-consultation time to absorb and discuss possible plans with their tribal leaders and tribal members. Basically the Department was gathering comments before two appeals were decided. These costs for the ten tribal consultation meetings probably will be part of the 15% administrative costs reimbursement from the Cobell Settlement award of $1.9 billion awarded for the Land Buy Back Program.

The tribal consultation process begins. The Department will review and discuss for consideration each of the comments submitted by tribes. This process will likely take some time as thoughtful consideration to meet the needs of each tribe where possible. The Department will have to establish a Land Buy Back Program office(s) and land titles records office(s) to meet the increased workload resulting from this program.

The proposed office overhead and staffing costs most likely will be offset by the 15 percent administrative cost pool. Of course, centralizing also costs relocation, or moving, expenses for staff relocating to the new office, again offset by the 15 percent administrative cost pool. And then of course, new positions, more supervisors, more promotions increasing personnel costs offset by the 15 percent administrative cost pool. And, because the Office of the Special Trustee's Office of Appraisal Services will be an integral part of the program effort, their costs will most likely be offset by the 15 percent administrative cost pool. You can see where this is going.

One question of interest I have is "how much interest funds is the $1.9 billion earning, and, how will it be used?" No specific response was given concerning these questions. Did anyone else at any of the other tribal consultation meetings hear this type of discussion? It's important because by the time funds are paid for the actual acquisitions, there should a nice little pot of interest monies earned by the primary deposit funds in late 2012.

The Department stated that tribes will not be able to contract these costs because the Indian Land Consolidation Act does not authorize P.L. 93-638 contracting for this purpose. However, the Department has stated that cooperative agreements may be used for costs associated with the Land Buy Back Program outreach effort to solicit interest by tribal members in selling their land.

The initial implementation plan can be read here. The following post-settlement consultations for the Land Buy-Back Program for Tribal Nations have taken place since the Cobell Settlement was made final in November 2012:
Consultations
•    Minneapolis – January 31, 2013, Consultation Agenda
•    Rapid City – February 6, 2013, Consultation Agenda
•    Seattle – February 14, 2013, Consultation Agenda

In conclusion, the Land Buy Back Program really is a beneficial program and will make it easier for land management and development. Fractionation is increasing as we speak and will never cease under the current scenario. People never stop passing on to the other side. The American Indian Probate Reform Act of 2004 was meant to slow down fractionation, but there are too many areas of the Act which need to be tightened down to be completely effective. Owning ancestral lands is important to Indian folks, and truly so. It's a tie to our past and what it stands for. But, in actuality, the land is not lost in consolidation, but held by the tribe for the whole of it's members.

There is a astonishing story that a probate which, before the probate order was final, incurred an additional 5 or 6 estates or final probate order of heirs within the allotment. Once the probate actually became final, probably more than 500 new owner interests were added to the ownership of the allotment. How would you like to attempt to negotiate a lease with 500 other owners and still expect to get exactly what you want, and everybody is happy? But the Land Buy Back Program can work and be somewhat successful. But, the ten year clock has already started, and it's ticking away. This really isn't the end, it's the beginning.

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.

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