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S. HRG. 107–512

INDIAN LAND CONSOLIDATION ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

S. 1340

TO AMEND THE INDIAN CONSOLIDATION ACT FOR PROBATE REFORM

WITH RESPECT TO TRUST OR RESTRICTED LANDS

MAY 22, 2002

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman

BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

FRANK MURKOWSKI, Alaska

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

PAUL WELLSTONE, Minnesota

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel

PAUL MOOREHEAD, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 1340, text of ......................................................................................................... 2

Statements:

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, vice chairman, Committee on Indian Affairs .............................................................. 1

Hall, Tex, chairman, Three Affiliated Tribes Business Council, president,

National Congress of American Indians ..................................................... 25

Lyons, Maurice, chairman, Morongo Band of Mission Indians .................... 29

McCaleb, Neal, assistant secretary, Indian Affairs, Department of the

Interior ........................................................................................................... 23

Nunez, Austin, president, Indian Land Working Group ............................... 33

Speakthunder, Benjamin, president, Port Belknap Community Council .... 31

Supernaw, Kathy, BIA, Department of the Interior ...................................... 23

APPENDIX

Prepared statements:

Hall, Tex ............................................................................................................ 41

Headdress, Arlyn, chairman, Assiniboine and Sioux Tribes, Fort Peck

Reservation .................................................................................................... 45

Lyons, Maurice (with letters) .......................................................................... 49

McCaleb, Neal ................................................................................................... 39

Murphy, Charles, chairman, Standing Rock Sioux Tribe (with attachments) ............................................................................................................ 57

Nunez, Austin (with attachments) .................................................................. 66

Pfeffer, Michael S., executive director, California Indian Legal Services

(with attachments) ........................................................................................ 124

Speakthunder, Benjamin ................................................................................. 47

Thomas, Hon. Craig, U.S. Senator from Wyoming ........................................ 39

Additional material submitted for the record:

Lewis Sr., Virgil, chairman, Roads, Irrigation, Land Committee, Confederated Tribes and Bands, Yakama Nation (letter) ..................................... 146

Matt, Fred D., chairman, tribal council, Confederated Salish and

Kootenai Tribes, Flathead Nation (letter) .................................................. 134

O’Neil, Ben, enrolled member, Shoshone Tribe (letter) ................................. 143

Wahpat, Robert N., chairman, Yakama Nation Tribal Council, Confederated Tribes and Bands, Yakama Nation (letter) ..................................... 146

(1)

INDIAN LAND CONSOLIDATION ACT

WEDNESDAY, MAY 22, 2002

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m. in room 485,

Senate Russell Building, Hon. Ben Nighthorse Campbell (acting

chairman of the committee) presiding.

Present: Senator Campbell.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, VICE CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

Senator CAMPBELL. Good morning. The committee will be in session.

I want to thank our Chairman, who is out for a few days, for continuing to encourage Indian trust management reforms and for

scheduling today’s hearing. I also want to welcome our witnesses

to discuss S. 1340, the Indian Probate Reform Act, the bill that I

introduced in August 2001. During the last Congress, the committee worked very hard to develop the Indian Lands Consolidation

Act Amendments of 2000 to see it signed into law on November 7

of the year 2000.

[Text of S. 1340 follows:]
2

1

II

107TH CONGRESS

1ST SESSION S. 1340

To amend the Indian Land Consolidation Act to provide for probate reform

with respect to trust or restricted lands.

IN THE SENATE OF THE UNITED STATES

AUGUST 2, 2001

Mr. CAMPBELL introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To amend the Indian Land Consolidation Act to provide

for probate reform with respect to trust or restricted lands.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Indian Probate Reform

5 Act of 2001’’.

6 SEC. 2. AMENDMENTS TO THE INDIAN LAND CONSOLIDA7 TION ACT.

8 (a) IN GENERAL.—The Indian Land Consolidation

9 Act (25 U.S.C. 2201 et seq.) is amended by adding at

10 the end the following:
3

2

•S 1340 IS

1 ‘‘Subtitle B—Indian Probate

2 Reform

3 ‘‘SEC. 231. FINDINGS.

4 ‘‘Congress makes the following findings:

5 ‘‘(1) The General Allotment Act of 1887 (com6 monly known as the ‘‘Dawes Act’’), which authorized

7 the allotment of Indian reservations, did not allow

8 Indian allotment owners to provide for the testa9 mentary disposition of the land that was allotted to

10 such owners.

11 ‘‘(2) The Dawes Act provided that allotments

12 would descend according to State law of intestate

13 succession based on the location of the allotment.

14 ‘‘(3) The Federal Government’s reliance on the

15 State law of intestate succession with respect to the

16 descendency of allotments has resulted in numerous

17 problems to Indian tribes, their members, and the

18 Federal Government. These problems include—

19 ‘‘(A) the increasing fractionated ownership

20 of trust and restricted land as these lands are

21 inherited by successive generations of owners as

22 tenants in common;

23 ‘‘(B) the application of different rules of

24 intestate succession to each of a decedent’s in25 terests in trust and restricted land if such land
4

3

•S 1340 IS

1 is located within the boundaries of different

2 States which makes probate planning unneces3 sarily difficult and impedes efforts to provide

4 probate planning assistance or advice;

5 ‘‘(C) the absence of a uniform general pro6 bate code for trust and restricted land which

7 makes it difficult for Indian tribes to work co8 operatively to develop tribal probate codes; and

9 ‘‘(D) the failure of Federal law to address

10 or provide for many of the essential elements of

11 general probate law, either directly or by ref12 erence, which is unfair to the owners of trust

13 and restricted land and their heirs and devisees

14 and which makes probate planning more dif15 ficult.

16 ‘‘(4) Based on the problems identified in para17 graph (3), a uniform Federal probate code would

18 likely—

19 ‘‘(A) reduce the number of unnecessary

20 fractionated interests in trust or restricted land;

21 ‘‘(B) facilitate efforts to provide probate

22 planning assistance and advice;

23 ‘‘(C) facilitate inter-tribal efforts to

24 produce tribal probate codes pursuant to section

25 206; and
5

4

•S 1340 IS

1 ‘‘(D) provide essential elements of general

2 probate law that are not applicable on the date

3 of enactment of this subtitle to interests in

4 trust or restricted land.

5 ‘‘SEC. 232. RULES RELATING TO INTESTATE INTERESTS

6 AND PROBATE.

7 ‘‘(a) IN GENERAL.—Any interest in trust or re8 stricted land that is not disposed of by a valid will shall—

9 ‘‘(1) descend according to a tribal probate code

10 that is approved pursuant to section 206; or

11 ‘‘(2) in the case of an interest in trust or re12 stricted land to which such a code does not apply,

13 be considered an ‘intestate interest’ and descend

14 pursuant to subsection (b), this Act, and other appli15 cable Federal law.

16 ‘‘(b) INTESTATE SUCCESSION.—An interest in trust

17 or restricted land described in subsection (a)(2) (intestate

18 interest) shall descend as provided for in this subsection

19 in the following order:

20 ‘‘(1) SURVIVING INDIAN SPOUSE.—

21 ‘‘(A) SOLE HEIR.—A surviving Indian

22 spouse of the decedent shall receive all of the

23 decedent’s intestate interests if no Indian child

24 or grandchild of the decedent survives the dece25 dent.
6

5

•S 1340 IS

1 ‘‘(B) OTHER HEIRS.—A surviving Indian

2 spouse of the decedent shall receive a one-half

3 interest in each of the decedent’s intestate in4 terests if the decedent is also survived by In5 dian children or grandchildren.

6 ‘‘(C) HEIRS OF THE FIRST OR SECOND DE7 GREE OTHER THAN SURVIVING INDIAN

8 SPOUSE.—The one-half interest in each of the

9 decedent’s intestate interests that do not de10 scend to the surviving Indian spouse under sub11 paragraph (B) shall descend in the following

12 order:

13 ‘‘(i) To the Indian children of the de14 cedent in equal shares, or to the Indian

15 grandchildren of the decedent, if any, in

16 equal shares by right of representation if 1

17 or more of the Indian children of the dece18 dent do not survive the decedent.

19 ‘‘(ii) If the decedent is not survived by

20 Indian children or grandchildren, to the

21 surviving Indian parent of the decedent, or

22 to both of the surviving Indian parents of

23 the decedent as joint tenants with the right

24 of survivorship.
7

6

•S 1340 IS

1 ‘‘(iii) If the decedent is not survived

2 by any person who is eligible to inherit

3 under clause (i) or (ii), to the surviving In4 dian brothers and sisters of the decedent.

5 ‘‘(iv) If the decedent is not survived

6 by any person who is eligible to inherit

7 under clause (i), (ii), or (iii), the intestate

8 interests shall descend, or may be ac9 quired, as provided for in section

10 207(a)(3)(B), 207(a)(4), or 207(a)(5).

11 ‘‘(2) NO SURVIVING INDIAN SPOUSE.—If the

12 decedent is not survived by an Indian spouse, the in13 testate interests of the decedent shall descend to the

14 individuals described in subparagraphs (A) through

15 (D) who survive the decedent in the following order:

16 ‘‘(A) To the Indian children of the dece17 dent in equal shares, or to the Indian grand18 children of the decedent, if any, in equal shares

19 by right of representation if 1 or more of the

20 Indian children of the decedent do not survive

21 the decedent.

22 ‘‘(B) If the decedent is not survived by In23 dian children or grandchildren, to the surviving

24 Indian parent of the decedent, or to both of the
8

7

•S 1340 IS

1 surviving Indian parents of the decedent as

2 joint tenants with the right of survivorship.

3 ‘‘(C) If the decedent is not survived by any

4 person who is eligible to inherit under subpara5 graph (A) or (B), to the surviving Indian broth6 ers and sisters of the decedent.

7 ‘‘(D) If the decent is not survived by any

8 person who is eligible to inherit under subpara9 graph (A), (B), or (C), the intestate interests

10 shall descend, or may be acquired, as provided

11 for in section 207(a)(3)(B), 207(a)(4), or

12 207(a)(5).

13 ‘‘(3) SURVIVING NON-INDIAN SPOUSE.—

14 ‘‘(A) NO DESCENDANTS.—A surviving non15 Indian spouse of the decedent shall receive a

16 life estate in each of the intestate interests of

17 the decedent pursuant to section 207(b)(2) if

18 the decedent is not survived by any children or

19 grandchildren.

20 ‘‘(B) DESCENDANTS.—A surviving non-In21 dian spouse of the decedent shall receive a life

22 estate in one-half of the intestate interests of

23 the decedent pursuant to section 207(b)(2) if

24 the decedent is survived by at least one of the

25 children or grandchildren of the decedent.
9

8

•S 1340 IS

1 ‘‘(C) DESCENDANTS OTHER THAN SURVIV2 ING NON-INDIAN SPOUSE.—The one-half life es3 tate interest in each of the decedent’s intestate

4 interests that do not descend to the surviving

5 non-Indian spouse under subparagraph (B)

6 shall descend to the children of the decedent in

7 equal shares, or to the grandchildren of the de8 cedent, if any, in equal shares by right of rep9 resentation if 1 or more of the children of the

10 decedent do not survive the decedent.

11 ‘‘(4) NO SURVIVING SPOUSE OR INDIAN

12 HEIRS.—If the decedent is not survived by a spouse,

13 a life estate in the intestate interests of the decedent

14 shall descend in the following order:

15 ‘‘(A) To the children of the decedent in

16 equal shares, or to the grandchildren of the de17 cedent, if any, in equal shares by right of rep18 resentation if 1 or more of the children of the

19 decedent do not survive the decedent.

20 ‘‘(B) If the decedent has no surviving chil21 dren or grandchildren, to the surviving parents

22 of the decedent.

23 ‘‘(5) REMAINDER INTEREST FROM LIFE ES24 TATES.—The remainder interest from a life estate
10

9

•S 1340 IS

1 established under paragraphs (3) and (4) shall de2 scend in the following order:

3 ‘‘(A) To the Indian children of the dece4 dent in equal shares, or to the Indian grand5 children of the decedent, if any, in equal shares

6 by right of representation if 1 or more of the

7 children of the decedent do not survive the de8 cedent.

9 ‘‘(B) If there are no surviving Indian chil10 dren or grandchildren of the decedent, to the

11 surviving Indian parent of the decedent or to

12 both of the surviving Indian parents of the de13 cedent as joint tenant with the right of survi14 vorship.

15 ‘‘(C) If there is no surviving Indian child,

16 grandchild, or parent, to the surviving Indian

17 brothers or sisters of the decedent in equal

18 shares.

19 ‘‘(D) If there is no surviving Indian de20 scendant or parent, brother or sister, the intes21 tate interests of the decedent shall descend, or

22 may be acquired, as provided for in section

23 207(a)(3)(B), 207(a)(4), or 207(a)(5).

24 ‘‘(c) SPECIAL RULE RELATING TO SURVIVAL.—For

25 purposes of this section, an individual who fails to survive
11

10

•S 1340 IS

1 a decedent by at least 120 hours is deemed to have pre2 deceased the decedent for purposes of intestate succession,

3 and the heirs of the decedent shall be determined accord4 ingly. If it is not established by clear and convincing evi5 dence that an individual who would otherwise be an heir

6 survived the decedent by at least 120 hours, such individ7 ual shall be deemed to have failed to survive for the re8 quired time-period for purposes of the preceding sentence.

9 ‘‘(d) PRETERMITTED SPOUSES AND CHILDREN.—

10 ‘‘(1) SPOUSES.—For purposes of this section, if

11 the surviving spouse of a testator married the tes12 tator after the testator executed his or her will, the

13 surviving spouse shall receive the intestate share in

14 trust or restricted land that such spouse would have

15 otherwise received if the testator had died intestate.

16 The preceding sentence shall not apply to an interest

17 in trust or restricted lands where—

18 ‘‘(A) the will is executed before the date

19 specified in section 234(a);

20 ‘‘(B) the testator’s spouse is a non-Indian

21 and the testator has devised his or her interests

22 in trust or restricted land to an Indian or Indi23 ans;

24 ‘‘(C) it appears from the will or other evi25 dence that the will was made in contemplation
12

11

•S 1340 IS

1 of the testator’s marriage to the surviving

2 spouse;

3 ‘‘(D) the will expresses the intention that

4 it is to be effective notwithstanding any subse5 quent marriage; or

6 ‘‘(E) the testator provided for the spouse

7 by a transfer of funds or property outside of

8 the will and an intent that the transfer be in

9 lieu of a testamentary provision is demonstrated

10 by the testator’s statements or is reasonably in11 ferred from the amount of the transfer or other

12 evidence.

13 ‘‘(2) CHILDREN.—For purposes of this section,

14 if a testator executed his or her will prior to the

15 birth of 1 or more children of the testator and the

16 omission is the product of inadvertence rather than

17 an intentional omission, such children shall share in

18 the decedent’s intestate interests in trust or re19 stricted lands as if the decedent had died intestate.

20 Any person recognized as an heir by virtue of adop21 tion under the Act of July 8, 1940 (54 Stat 746)

22 shall be treated as a decedent’s child under this sec23 tion.

24 ‘‘(e) DIVORCE.—

25 ‘‘(1) SURVIVING SPOUSE.—
13

12

•S 1340 IS

1 ‘‘(A) IN GENERAL.—For purposes of this

2 section, an individual who is divorced from the

3 decedent, or whose marriage to the decedent

4 has been annulled, shall not be considered to be

5 a surviving spouse unless, by virtue of a subse6 quent marriage, such individual is married to

7 the decedent at the time of death. A decree of

8 separation that does not terminate the status of

9 husband and wife shall not be considered a di10 vorce for purposes of this subsection.

11 ‘‘(B) RULE OF CONSTRUCTION.—Nothing

12 in subparagraph (A) shall be construed to pre13 vent an entity responsible for adjudicating in14 terests in trust or restricted land from giving

15 force and effect to a property right settlement

16 if one of the parties to the settlement dies be17 fore the issuance of a final decree dissolving the

18 marriage of the parties to the property settle19 ment.

20 ‘‘(2) EFFECT OF SUBSEQUENT DIVORCE ON A

21 WILL OR DEVISE.—If after executing a will the tes22 tator is divorced or the marriage of the testator is

23 annulled, upon the effective date of the divorce or

24 annulment any disposition of interests in trust or re25 stricted land made by the will to the former spouse
14

13

•S 1340 IS

1 shall be deemed to be revoked unless the will ex2 pressly provides otherwise. Property that is pre3 vented from passing to a former spouse based on the

4 preceding sentence shall pass as if the former spouse

5 failed to survive the decedent. Any provision of a will

6 that is revoked solely by operation of this paragraph

7 shall be revived by the testator’s remarriage to the

8 former spouse.

9 ‘‘(f) NOTICE.—To the extent practicable, the Sec10 retary shall notify the owners of trust and restricted land

11 of the provisions of this title. Such notice may, at the dis12 cretion of the Secretary, be provided together with the no13 tice required under section 207(g).

14 ‘‘SEC. 233. COLLECTION OF PAST-DUE AND OVER-DUE

15 CHILD SUPPORT

16 ‘‘The Secretary shall establish procedures to provide

17 for the collection of past-due or over-due support obliga18 tions entered by a tribal court or any other court of com19 petent jurisdiction from the revenue derived from an inter20 ests in trust or restricted land.

21 ‘‘SEC. 234. EFFECTIVE DATE.

22 ‘‘(a) IN GENERAL.—The provisions of this title shall

23 not apply to the estate of an individual who dies prior to

24 the later of—
15

14

•S 1340 IS

1 ‘‘(1) the date that is 1 year after the date of

2 enactment of this subtitle; or

3 ‘‘(2) the date specified in section 207(g)(5).’’.

4 (b) OTHER AMENDMENTS.—The Indian Land Con5 solidation Act (25 U.S.C. 2201 et seq.) is amended—

6 (1) by inserting after section 202, the following:

7 ‘‘Subtitle A—General Land

8 Consolidation’’;

9 (2) in section 206 (25 U.S.C. 2205)—

10 (A) in subsection (a)(3)—

11 (i) by striking ‘‘The Secretary’’ and

12 inserting the following:

13 ‘‘(A) IN GENERAL.—The Secretary’’; and

14 (ii) by adding at the end the follow15 ing:

16 ‘‘(B) TRIBAL PROBATE CODES.—A tribal

17 probate code shall not prevent the devise of an

18 interest in trust or restricted land to non-mem19 bers of the tribe unless the code—

20 ‘‘(i) provides for the renouncing of in21 terests, reservation of life estates, and pay22 ment of fair market value in the manner

23 prescribed under subsection (c)(2); and

24 ‘‘(ii) does not prohibit the devise of an

25 interest in an allotment to an Indian per-
16

15

•S 1340 IS

1 son if such allotment was originally allot2 ted to the lineal ancestor of the devisee.’’;

3 and

4 (B) in subsection (c)(2)—

5 (i) in subparagraph (A)—

6 (I) by striking ‘‘IN GENERAL.—

7 Paragraph’’ and inserting the follow8 ing:

9 ‘‘(A) NONAPPLICABILITY TO CERTAIN IN10 TERESTS.—

11 ‘‘(i) IN GENERAL.—Paragraph’’;

12 (II) by striking ‘‘if, while’’ and

13 inserting the following: ‘‘if—

14 ‘‘(I) while’’;

15 (III) by striking the period and

16 inserting ‘‘; or’’;

17 (IV) by adding at the end thereof

18 the following:

19 ‘‘(II) the interest is part of a

20 family farm that is devised to a mem21 ber of the decedent’s family if the dev22 isee agrees that the Indian tribe that

23 exercises jurisdiction over the land

24 will have the opportunity to acquire

25 the interest for fair market value if
17

16

•S 1340 IS

1 the interest is offered for sale to an

2 entity that is not a member of the

3 family of the owner of the land.

4 ‘‘(ii) RULE OF CONSTRUCTION.—

5 Nothing in clause (i)(II) shall be construed

6 to prevent or limit the ability of an owner

7 of land to which such clause applies to

8 mortgage such land or to limit the right of

9 the entity holding such a mortgage to fore10 close or otherwise enforce such a mortgage

11 agreement pursuant to applicable law.’’;

12 and

13 (ii) in subparagraph (B), by striking

14 ‘‘207(a)(6)(B)’’ and inserting ‘‘207(a)(6)’’;

15 (3) in section 207 (25 U.S.C. 2206)—

16 (A) in subsection (a)(6), by striking sub17 paragraph (A) and inserting the following:

18 ‘‘(A) DEVISE TO OTHERS.—

19 ‘‘(i) IN GENERAL.—Notwithstanding

20 paragraph (2), an owner of trust or re21 stricted land—

22 ‘‘(I) who does not have an Indian

23 spouse or an Indian lineal descendant

24 may devise his or her interests in such

25 land to his or her spouse, lineal de-
18

17

•S 1340 IS

1 scendant, heirs of the first or second

2 degree, or collateral heirs of the first

3 or second degree;

4 ‘‘(II) who does not have a spouse

5 or an Indian lineal descendent may

6 devise his or her interests in such land

7 to his or her lineal descendant, heirs

8 of the first or second degree, or collat9 eral heirs of the first or second de10 gree; or

11 ‘‘(III) who does not have a

12 spouse or lineal descendant may de13 vise his or her interests in such land

14 to his or her heirs of the first or sec15 ond degree, or collateral heirs of the

16 first or second degree.

17 ‘‘(ii) RULE OF CONSTRUCTION.—Any

18 devise of an interest in trust or restricted

19 land under clause (i) to a non-Indian will

20 be construed to devise a life estate unless

21 the devise explicitly states that the testator

22 intends for the devisee to take the interest

23 in fee.

24 ‘‘(B) UNEXERCISED RIGHTS OF REDEMP25 TION.—
19

18

•S 1340 IS

1 ‘‘(i) IN GENERAL.—This subpara2 graph (B) shall only apply to interests in

3 trust or restricted land that are held in

4 trust or restricted status as of the date of

5 enactment of the Indian Probate Reform

6 Act of 2001, and interests in any parcel of

7 land, at least a portion of which is in trust

8 or restricted status as of such date of en9 actment, that is subject to a tax sale, tax

10 foreclosure proceeding, or similar proceed11 ing.

12 ‘‘(ii) EXERCISE OF RIGHT.—If the

13 owner of such an interest referred to in

14 clause (i) fails or refuses to exercise any

15 right of redemption that is available to

16 that owner under applicable law, the In17 dian tribe that exercises jurisdiction over

18 the trust or restricted land referred to in

19 such clause may exercise such right of re20 demption.

21 ‘‘(iii) PENALTIES AND ASSESS22 MENTS.—To the extent permitted under

23 the Constitution of the United States, an

24 Indian tribe acquiring an interest under
20

19

•S 1340 IS

1 clause (i) may acquire such an interest

2 without being required to pay—

3 ‘‘(I) penalties; or

4 ‘‘(II) past due assessments that

5 exceed the fair market value of the in6 terest.’’; and

7 (B) in subsection (g)(5), by striking ‘‘this

8 section’’ and inserting ‘‘subsections (a) and

9 (b)’’; and

10 (4) in section 217 (25 U.S.C. 2216)—

11 (A) in subsection (e)(3), by striking ‘‘pro12 spective applicants for the leasing, use, or con13 solidation of’’ and insert ‘‘any person that is

14 leasing, using or consolidating, or is applying

15 to, lease, use, or consolidate,’’; and

16 (B) in subsection (f)—

17 (i) by striking ‘‘After the expiration of

18 the limitation period provided for in sub19 section (b)(2) and prior’’ and inserting

20 ‘‘Prior’’; and

21 (ii) by striking ‘‘sold, exchanged, or

22 otherwise conveyed under this section’’.

23 (c) ISSUANCE OF PATENTS.—Section 5 of the Act of

24 February 8, 1887 (24 Stat. 348) is amended by striking

25 the second proviso and inserting the following: ‘‘Provided,
21

20

•S 1340 IS

1 That the rules of intestate succession under the Indian

2 Land Consolidation Act, or a tribal probate code approved

3 under such Act and regulations, shall apply thereto after

4 such patents have been executed and delivered:’’.

Æ
22

Senator CAMPBELL. The 2000 ILCA amendments addressed two

pressing needs—removing the parts of the ILCA that were invalidated by the Supreme Court and updating the misinformed and

sometimes simply outdated Federal laws dealing with Indian probate and the use of Indian lands. As we worked out the ILCA

amendments last session we learned why it has proven so difficult

for Congress to address this important work over the decades.

Every issue we addressed required us to take a stand on unresolved questions and often there were no easy answers. For example, allowing a person to devise his land to any of his heirs or relatives would allow the land to pass out of trust when it is devised

to non-Indians. Without easy solution or an unlimited amount of

money to allow us to buy our way out of these problems, the best

we can do is to try to work together and try to give this our best

shot in trying to accommodate everyone’s interest as well as we

can. I am pleased that most of the 2000 amendments are going into

effect with little or no controversy.

S. 1340 gives us an opportunity to take steps to reduce the

amount of time to complete the probating of Indian estates. Currently, some 20 State laws of intestate succession apply to the inheritance of Indian allotments, which makes it nearly impossible

for the U.S. Government to help allottees with probate and estate

planning. The various State laws also create headaches for administrative law judges who are forced to monitor legal and policy developments in the 20 States. S. 1340 will reduce that number to

one uniform law, unless the tribe decides to enact its own pobate

rules.

The President’s budget request includes a new and stronger emphasis on probating Indian estates by including millions more dollars for probate activities. I am also pleased that Secretary Norton

is making true trust enhancement a high priority for her Administration. Congress shares responsibility for trust reforms, not only

in providing adequate resources, but in taking an honest look at

laws that govern the use and probate of trust lands, especially

trust lands that are in individual Indian ownership. S. 1340 will

allow us the opportunity to complete the work we began last Congress by establishing uniform Federal Indian rules.

With that, we will start with the witnesses. I understand, Neal,

that you have an airplane out. Is that correct? So why don’t we go

ahead and start with you, and at the end of your testimony, if you

want to put your complete written testimony in the record, that

will be fine. If you have a real tight schedule, be as brief as you

like, and then at that time you are sure welcome to be excused.

Mr. MCCALEB. With your permission, Mr. Chairman, I would like

to invite Kathy Supernaw to join me. She is the resident expert at

the Bureau of Indian Affairs on probate, and this is a little bit

technical legally for an old civil engineer, so I may need a crutch

to answer any questions.

Senator CAMPBELL. That will be fine.
23

STATEMENT OF HON. NEAL MCCALEB, ASSISTANT SECRETARY

OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR,

ACCOMPANIED BY KATHY SUPERNAW, BUREAU OF INDIAN

AFFAIRS

Mr. MCCALEB. Thank you very much, Mr. Chairman. I very

much appreciate the opportunity to appear before you today and

present the views of the Administration on S. 1340, as you said,

a bill intended to amend the Indian Land Consolidation Act of 2000

to provide for probate reform with respect to trust and restricted

lands.

Let me say at the outset, we support the bill. It is a useful bill

and a needed bill. In particular, I want to commend your staff in

their efforts in developing the legislation. S. 1340 will provide the

American Indian people who own trust and restricted land and restricted assets with a uniform probate intestate code that can be

applied throughout Indian country. The legislation is clearly the

product of a lot of hard work on detailed and technical issues by

departmental employees and members of your staff in order to

achieve this important common goal of improving Indian probate

programs.

During the tribal consultations held in July and August 2000 on

the proposed probate regulations, the tribes recommended and supported a uniform intestate code. At the present time, Federal statutes provide that the law of the State where the land is located be

applied in the distribution of the estate. As a result of intertribal

marriage, it is not uncommon that an Indian decedent owns land

on reservations in several States. The effect of applying up to 33

different State laws to the restricted and trust lands of a decedent

results in disparate and unfair treatment of the distribution of the

entire estate to the same heirs.

For example, in Nebraska the surviving spouse is entitled to receive the first $50,000 of the estate, and thereafter the law provides that the surviving spouse receive one-half and the children

get one-half of the remainder of the estate. Minnesota law, however, provides that the surviving spouse will get the first $150,000

plus one-half of the balance of the intestate estate if all the heirs

are also heirs of the surviving spouse. There are several examples

here in the testimony of the disparity between the different States

that exemplify this problem. I will not go through them all.

Another area of concern is the inheritance rights of adopted children and the inconsistencies in the State laws. Minnesota law provides that an adopted child may inherit from his or her natural

parents, while Montana law provides that an adopted child may

only inherit from the adopted parents. The enactment of a uniform

intestate code for trust and restricted estates is a great benefit

both to the heirs and to the Department. The benefit to the heirs

is the same law will be applied to all trust and restricted estates

of the decedent, no matter where the real property is located. A

uniform intestate probate code will provide for the division of the

shares of the entire estate and will be the same throughout the

United States. The heirs may disclaim their interests or otherwise

agree to the settlement to distribute the estate if a child or children

want to give a larger share to the surviving parent. The Federal
24

Government’s cost to update and maintain land records will be reduced.

This is a very important contribution to the Indian Land Consolidation Act because of the complexity of the probate. It is operating

to proliferate the fractionated interests. Although it is an aside

that is not in the testimony, in the Midwest we have been doing

the pilot project on land consolidation. There are 120,000 individual interests. In the last three years, we have purchased 43,000,

which you would think would be great headway, but because of

proliferation of the fractionated interests, we are just treading

water. There are now 121,000 individual interests. So this is a

problem that needs an aggressive approach, and this will be a contributing factor to assist in that.

Finally, a uniform intestate code may encourage the Indian

tribes adopt their own inheritance codes. The uniform intestate

code will serve as a model for tribes to develop their own tribal probate codes. The proposed uniform intestate succession facilitates

the consolidation of interests to remain in trust or restricted status

and complements the provisions of the Indian Land Consolidation

Act to minimize further fractionation of individual interests in

trust and restricted land.

I would comment in terms of some comments on the bill. We recommend that S. 1340 include a provision that excepts the application of the uniform intestate code to the Five Civilized Tribes in the

State of Oklahoma I am a member of one of them, until such time

as the Five Nations bill is enacted. Currently, the Five Civilized

Tribes are subject to the State District Courts of Oklahoma and

Oklahoma probate law is applied to determine the intestate succession. Thus, the removal of the exception should be reflected in S.

2880 and the Five Nations legislation.

We have some other tweaks, really cleanup language in the bill,

that is contained in the testimony that will speak for itself, and we

will leave it at that.

With that, Mr. Chairman, I would just like to thank you again

for the hard work of your staff in cooperation with the Department

in drafting this much-needed legislation. I will be happy to answer

any questions that you may have.

[Prepared statement of Mr. McCaleb appears in appendix.]

Senator CAMPBELL. Thank you.

My staff tells me it is one of the hardest bills they have ever

tried to put together, by the way.

Before you run, let me ask you just a couple of questions, Neal.

Is it fair to say that the land pieces that are owned by Indian people are getting smaller and smaller because of the proliferation as

families grow?

Mr. MCCALEB. Oh, absolutely. That is right.

Senator CAMPBELL. And because the States, so many of them

have different laws applying to inheritance, is it possible for an Indian youngster adopted by an Indian family, but is not enrolled in

that tribe, to inherit that land from the parents in some States?

Mr. MCCALEB. I am going to defer to my expert here.

Ms. SUPERNAW. It depends on the State law.

Mr. MCCALEB. That’s what I mean. Can that happen in some

States?
25

Ms. SUPERNAW. Right. It is different, and State law does not address tribal membership. It is just natural parents.

Senator CAMPBELL. Yes; well, does that mean also if an Indian

family adopted a non-Indian youngster in some States could that

youngster inherit that land?

Ms. SUPERNAW. Yes.

Senator CAMPBELL. Yes; complicated. Well, I appreciate your

willingness to work with the committee on those little glitches we

have, and certainly appreciate your support of the bill, too. I have

a few more questions, but I know you have a plane out, so what

I will do with the last few, I think I will submit them in writing— if you could answer those in writing. They are just small questions,

but I would appreciate it if you would do that.

Mr. MCCALEB. Thank you very much, Mr. Chairman.

Senator CAMPBELL. Thank you.

The next panel will be made of Tex Hall—Tex, nice to see you

again—from the Three Affiliated Tribes; Maurice Lyons, chairman

of the Morongo Band of Mission Indians from Banning, CA; and

Benjamin Speakthunder, president of Fort Belknap’s Community

Council; and Austin Nunez, the president of Indian Land Working

Group of Wagon Mound, NM.

We will proceed in that order, too, if it is all right. So we will

just go ahead and start with you, Tex. Thank for appearing here

again—twice in 2 weeks.

For all of the witnesses, if you would like to abbreviate or depart

from your printed statement, we will include your complete statement in the record.

Tex.

STATEMENT OF HON. TEX HALL, CHAIRMAN, THREE AFFILIATED TRIBES BUSINESS COUNCIL, AND PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS

Mr. HALL. Thank you, Mr. Chairman, and members of the committee and staff—Pat and Paul and Steve. I really appreciate the

opportunity to present on behalf of the National Congress of American Indians.

I do have a chart I would like to show that really gives an example of the fractionation. I will just use my tribe as an example. The

brown indicates the two percent and less. So Mr. Chairman and

members of the committee, you can see. I have not done the exact

math, but it appears to me in talking with our legal counsel John

Dossett from NCAI, it appears it is about one-half of the two percent and less interest on Fort Berthold in that brown right there.

So that is a tremendous problem as we look to develop economically for housing, for business development and so on and so forth.

As a rancher at my reservation, we all—or as a businessman— we all know that if you can block up a parcel of land for farming,

for grazing, or for business development, it is in the best interest

economically to do so. So this is a huge issue and I very much

agree with the comments that you expressed at the outset that this

is probably the most difficult bill I am sure the staff has had to

work on, but it is something that we strongly encourage. We think

of it almost like a work in progress, Mr. Chairman, that we may

have to make some amendments later on. So I just wanted again
26

to show some of the—the white track is the FELA and that was

the Homestead Act at Fort Berthold. So about one-third of what we

call the northeast quadrant was part of the 1910 Homestead Act.

So you see the gray is the two to five percent, and then the green

is the 5 to 10 percent, and the light green is the 10 to 25, and then

the kind of yellow is the 25 to 50, and the lighter shade is 50 to

75, and then the off-white or the gray is 100 percent track. And so,

at some point in time, I would hope that we can have a discussion

with some of the tribal leaders that are very interested in this, and

the committee, on looking at a mechanism to allow a buying of 100

percent allotment and how we can move forward on that issue, so

we can eliminate those browns and the off-whites or the grays.

Mr. Chairman, I gave my written testimony, and I just have a

few comments, and I want to talk in general and then more specific. President Roosevelt was from our country. He had a ranch out

in North Dakota, in Medora. And he had a quote in his 1901 State

of the Union Address on the General Allotment Act. He said it is

a great pulverizing engine designed to crush the Indian mass. He

went on to describe what he thought the goal of the United States

toward tribes should be, and he said, we must treat the Indians as

individuals, not as tribes. I think what he said summarizes nicely

our problem. The Allotment Act destroyed the land-base of tribal

nations, and was the basis of the General Allotment Act. It was intended to destroy the tribal land common ownership interest by

splitting us into individual ownership of landowners, and each with

really inadequate parcels of land. I think Roosevelt thought if we

owned land, we would not be able to identify ourselves as tribal nations. So all tribes are really looking at this Indian Land Consolidation Act amendments now as we try to reduce those 2 percent.

Now, 100-plus years later and five generations, we are faced with

how to fix this General Allotment Act because, as you know, it did

not provide for mechanisms to escheat or to pass down to our heirs.

You simply could not do it. That is why on all trust lands, we have

this problem. It is just fractionation, fractionation with many of our

tribal members not having wills and not having that process, or not

having a uniform probate where it differs if we follow the State

law, which the General Allotment Act did. As Mr. McCaleb indicated in his testimony, you may have an individual owner from

several different States.

So I do have a—I wish I could have presented it in a powerpoint, Mr. Chairman, but I could leave this. This is a bar graph.

This is from the Land Records Information System, which the Bureau calls the LRIS. It shows all of the 12 regions, so this is the

Great Plains, and this up here indicates 1.2 million landowner interests. In the Great Plains, we have 1.1 million number of interests, and then the Rocky Mountain is next with 654,000 number

of interests. This is the pie chart of the landowner interests. In the

Great Plains, there are 37 percent; Rocky Mountain is 21 percent

of the landowner interests, so there are 1.2 million interests.

The third chart of the LRIS is the number of trust allotments or

tribal tracks. Again, the Great Plains on the pie graph is 33 percent of the tribal tracks. Rocky Mountain is 21 percent, and the

Northwest is 19 percent, and so on and so forth. And then again,

it shows—this is the bar graph of tribal tracks again. There are
27

58,000 tribal tracks; Rocky Mountain, 37,000; Northwest, 34,000.

This is the nationwide IIM accounts data, Mr. Chairman and members of the committee. Again, the number of IIM accounts in the

Great Plains is 67,249; in the Rocky Mountain, it is 34,462; and the

Western is 29,000. And then again, this is the pie graph of the national IIM accounts that shows the Great Plains has 27 percent of

the IIM accounts.

Of course, as Mr. McCaleb had indicated, there is a fee. There

is a fee that has to go to administering those fractionated interests.

And so clearly we have to have the funding for the—I mean, that

is the goal here. So one of our recommendations is not for anything

less than $33 million. We are looking at the Bureau’s formula—not

formula, but the amount of money it takes to administer those

fractionated parcels is about $33 million. So that would be one of

our recommendations, Mr. Chairman, is that we include that in our

budget for fiscal year 2003, that funding base of $33 million.

Just a couple more comments, Mr. Chairman. Of course, section

207 was designed to prevent Indian lands from passing out of trust.

Non-Indian heirs will generally only receive a life estate on Indian

lands. But because the non-Indian heir owns less than a full interest, a remainder interest is created and this remainder interest

must go on to an Indian. If there are no such heirs, a remainder

may be purchased by any Indian co-owner of the parcel, and the

proceeds of such a sale are made a part of the decedent’s estate.

If no offer is made to purchase the parcel, the remainder interest

then passes on to the tribe. We greatly support this portion.

In some instances, the Indian owners of trust or restricted land

may not have an Indian heir, and the general rule would deprive

such people of the ability to devise more than a life estate to their

heirs. The 2000 Amendments provide an exception for such people.

They may devise an interest to either their heirs of the first or second degree, or collateral heirs of the first or second decree. Because

these people are non–Indian, the interest would pass in fee, not in

trust. This does concern us somewhat. But there is an option for

these interests to be purchased by the tribe, which we definitely

support. We would like to consider more technical amendments to

this section.

And then finally on the section 207, it is intended to address

fractionation by limiting the way the Indian land passes as a joint

tenancy in common. So if a person devises interests in the same

parcel to more than one person, it is now presumed to be a joint

tenancy with right of survivorship, meaning that each of the decedent’s heirs share a common title, so that the last surviving member of the group obtains a full interest as it was owned by the decedent. So any interest of less than 5 percent passing intestate or

people without a will, succession will also be held by the heirs with

the right of survivorship. The Secretary of the Interior must certify

that it has the capacity to track and manage interests that are held

with the right of survivor for this provision to take place. We

strongly support that provision, Mr. Chairman.

We really have to do something here. I really appreciate the committee’s attention to this issue because if we do not, it will just continue to multiply and multiply. It will basically render our land-
28

base useless for an entire—this is a one million acre reservation,

Mr. Chairman.

Finally, we do have some recommendations. Again, we recognize

the need for the type of amendments that are proposed in S. 1340

regarding devise to non-Indian heirs. In a general sense, we support them, but we would like to get a little bit more recommendations from other tribes as they are continuing to send us testimony

and talk to us about the specifics that, number one, would keep the

land in trust status and under tribal jurisdiction. We do not want

to get into a situation where we are separating, like in the Cabell

lawsuit where you have the individual IIM accountholders in a

suit, and then you have the tribal assets over here, and then we

are really going in separation, where we do not have the tribal government being a part of that whole mix. We think that our discussions and our amendments should include the tribal jurisdiction. I

think that is probably one of the most important things that I

would add today, in addition to the funding—this support for tribal

jurisdiction.

And number two, take a closer look at the limitations of approval

of tribal probate codes as this is a direct interference with tribal

self-government. So again, it seems like we are going in conflict

there on the probate code. Again, we have to have that discussion

with tribal governments, and Mr. Chairman, we all know that if we

work with the tribes and we have something in concert, it will

work a lot better that way.

And number three, and this is just a simplification recommendation, is that somehow we have to simplify the amendments or the

acts so they are more user-friendly, so the people that are doing

this in the field, in reality, in the Bureau and at the tribes, are

more—and of course, as we are working with our constituents with

our tribal membership, are more able to use these amendments in

a more easier manner, in a more timely manner. And I did mention the need for $33 million—and I think—just

to finish my thought under the tribal governments and the tribal

programs, Mr. Chairman, at NCAI we are also researching some

ideas. On page six of my testimony, Mr. Chairman, we have four

recommendations right there. We are researching some ideas that

would expand the efforts tribal land consolidation programs, including a categorical exemption from NEPA, either legislative or

through Interior regulations, in order to reduce the time and expense related to land transfers. We are still waiting for—this is

part of the LRIS system, and this is still locked up since December,

Mr. Chairman. I just wanted to state that we have submitted a letter to the committee asking the Department of the Interior to turn

the system back on because any land transactions, any housing developments are frozen right now since December. Any probate action is still frozen because the system is still shut down. So this

is imperative that we reduce the time and expense and that we

allow the system to get back on-line so we can continue land transfers, land exchange and leases, lease approvals, and probate information that comes through the system.

No. 2, provide tax bond financing to tribes to acquire lands for

consolidations. And number three, loan programs that provide Federal funding to buy down the cost of a loan—that buys down points
29

on the interest rate; and four, develop a tax credit for turning in

fractionated interests or other tax credit structures or incentives

for owners of fractionated interest.

In most part, Mr. Chairman, if we do not have some sort of

mechanism like we are seeing in our amendments, there will still

be a lot of tribes that are not able to use land, and many tribes

still remain landless. So again, we support in a general sense. We

realize that this is a big issue, but we have to move forward on this

to stop the fractionation. So we support the amendments to the Indian Land Consolidation Act, but again, we would like to provide

some more technical amendments as more tribes are wanting to

provide more testimony, Mr. Chairman, and I do not know if it is

possible to allow a little bit more time for the record to remain

open. I just offer that. I would take any questions after the speakers are done.

Thank you.

[Prepared statement of Mr. Hall appears in appendix.]

Senator CAMPBELL. Okay. Some of the suggestions I think are

really good. Some of them might create a problem. We will have

to work with it, because some of them might require separate legislation. We might not be able to do it because it might not come

under the jurisdiction of this committee. But we will certainly look

into them.

You used the word ‘‘simplify.’’ By the way, let me tell you, in the

Senate, that is an oxymoron when you try to simplify anything.

[Laughter.]

Let’s go on with Maurice Lyons. Nice to see you again, Maurice.

Mr. LYONS. You too, Chairman, Vice Chairman.

STATEMENT OF HON. MAURICE LYONS, CHAIRMAN, MORONGO

BAND OF MISSION INDIANS

Mr. LYONS. We would like to thank the Chairman and Vice

Chairman Campbell for inviting Morongo Band of Mission Indians

to testify today concerning the amendments of the Indian Land

Consolidation Act of 2000. We strongly encourage the committee to

move forward with the problems that have become apparent under

current law.

I would like to begin by thanking Senator Campbell for his request to the Department of the Interior to delay implementation of

certain provisions of the act, pending further congressional review.

Concerns have risen in Indian country about the consequences both

intended and possibly unintended of those amendments.

Morongo Reservation is located 17 miles west of Palm Springs.

Our tribal membership is 1,200. We are a small reservation compared to some of these back this way. Our reservation is comprised

of 33,000 acres that is held in trust, of which 31,000 is held in trust

for the tribe and 1,200 acres is allotted lands. We continue to

fight—we are working right now to find out how many of our people own interests in other reservations, and how many other people

own interests in our reservation. That is something we really need

to find out. Myself, I own interests in three different reservations.

Senator CAMPBELL. We are not going to be able to consolidate

them. [Laughter.]
30

Mr. LYONS. No; and they are not big interests. They are small

interests.

Senator CAMPBELL. Okay.

Mr. LYONS. We at Morongo share the Congress’ desire to preserve the trust status of existing allotments on Indian lands. We

appreciate the committee’s hard work in 1992 and 2000 to strike

a balance between the Indian Land Consolidation Act Amendments

of 2000, between individual property rights and interests of

allottees, and the sovereign rights and interests of tribal governments. However, there may be a few unintended consequences from

this legislation. For example, because of the way the act now defines ‘‘Indian,’’ the Morongo band is faced with having to revise our

enrollment to meet the needs of some of our people. There are reallife consequences under the present provisions.

Take a Morongo tribal member, Eva Giordani, she is 82 years

old. She has four grandchildren. Two of them were enrolled, two

could not be enrolled because they did not meet our enrollment criteria. She wants to leave her estate—she has a house and some

land—she wants to leave it to all of them, but she cannot do that

because it would go out of trust. One-half of it would go out of trust

if she did that. And there is Yvonne Finley. She worked all her life

to get her house on the reservation done, and she has two kids.

One daughter has three children that cannot be enrolled because

of the criteria, and they cannot inherit land because it goes out of

trust.

I think we can fix this problem under current law. We have some

suggestions. First, Congress should adopt the proposed ILCA the

same definition of ‘‘Indian’’ as the Indian Health Care Improvement Act. Second, the committee should revise the concept of nonIndian estate in Indian land. That would allow the descent and distribution to non-Indians of a unique form of estate in trust in restricted lands. As you may recall, such an interest was included in

a bill reported out of committee during the 106th Congress, S.

1586, but it was stripped from the bill just prior to full Senate consideration. Under the ‘‘non-Indian interest in Indian lands,’’ a nonIndian would be eligible to continue living on lands or receive proportionate shares of revenue produced by the parcel of land, but

the underlying title of the land would be held in trust for the tribe.

We believe this solution would help our tribal members who are

interested in making certain lands remain in trust so the heritage

of the tribe can be protected. We also provide them with the ability

to transfer something of lasting value to their children. Right now,

they cannot do that.

Finally, I would like to make one final comment concerning S.

1340. We believe that the proposed section 233 concerning collection of past-due and overdue child support is best addressed under

separate legislation. This bill should focus only on Indian probate

and trust property, not trust income.

Thank you for your consideration we know you will give to these

important issues. Thank you.

[Prepared statement of Mr. Lyons appears in appendix.]

Senator CAMPBELL. President Speakthunder, please go ahead.
31

STATEMENT OF BENJAMIN SPEAKTHUNDER, PRESIDENT,

FORT BELKNAP COMMUNITY COUNCIL

Mr. SPEAKTHUNDER. Good morning, Mr. Chairman, and members

of the committee. Tex Hall, Maurice Lyons, Austin Nunez, thank

you for providing the testimony here today.

I am Benjamin Speakthunder, chairman of Fort Belknap Indian

Community Council. Today, I would like to present as far as being

members of the Assiniboine Nation and Gros Ventre Nation, Fort

Belknap. I am extremely honored to be able to address the committee on this very important complex issue, which we are able to address this committee on a very important process throughout the

United States, faced on a daily basis. The issue I am speaking

about all impacts our tribes, both the Assiniboine and Gros Ventre

people of Fort Belknap and other Nations are respectable that is

in complicating heirship, otherwise known as undivided interests.

With respect to S. 1340, the Indian Probate Reform Act of 2001,

I offer the following comments on behalf of Fort Belknap Indian

Reservation. Neither the General Allotment Act, Dawes Act nor the

individual Allotment Acts contains any provisions for rights-of-way

on or across lands to access other lands. However, we feel that this

should be one of the points in advising persons who make wills to

consider reservation of rights-of-way on or across lands. In addition, the title status reports need to be corrected to reflect the

right-of- ways of the current status.

Section 232 relating to the interstate interests and probate and

other heirs include great-grandchildren, direct lineal descendants

to be included in the appropriate sections. In addition, the current

definition of ‘‘Indian’’ must be repealed. This definition will harm

Indian country and cause jurisdictional problems, or cut off far too

many people who are Indian, yet not enrolled for a variety of reasons. A restrictive definition of ‘‘Indian’’ will reduce trust landholdings. Defining who can inherit is a tribal authority and need

to be determined by each respective tribal community.

In order for true consolidation to take place, we recommend that

a provision be included within S. 1340 that repeals a joint tenancy

provision within the current Indian Land Consolidation Act. Creation of a joint tenancy with a right of survivorship for 5 percent

of less interests prevents interests from being passed to eligible

heirs, namely children.

With respect to the intent of the Indian Land Consolidation Act

and subsequent amendments, we think that the tribal probate code

duly passed and adopted by a tribal government should supersede

not only State law, but Federal law as well as it may apply to the

Reservation lands.

The Bureau of Indian Affairs has a land consolidation program

funded by the Congress as implemented to our knowledge, with the

tribes in the Minnesota region. As we understand this program, the

BIA purchases on behalf of the tribe, shares, preferably 2 percent

or less, from willing sellers. These shares are held in trust by the

United States on behalf of the tribe until the rental income from

the share refunds the purchase price of the share acquired.

Senator CAMPBELL. Benjamin, I have to slip out for about 2 minutes, but just go ahead and keep talking and staff will take your

testimony.
32

Mr. SPEAKTHUNDER. Thank you, Mr. Vice Chairman.

This means that for each share acquired, an Individual Indian

Money, IIM account must be maintained to account for the income

and repayment of the share. To me and others, this is not really

a true consolidation. True consolidation is when the share is acquired and the former owner’s account is closed for that particular

tract. If individuals, either co-owner or stranger, or the tribe is provided the financial backing to acquire this share and other shares

in a given tract of land, then the tract is truly consolidated for the

purpose of reducing administrative costs for the Federal Government.

Fort Belknap was allotted by the act of March 3, 1921, Statute

1355, whereby 1,188 members of the Assiniboine and Gros Ventre

Tribes received allotment of land varying from 400 to 520 acres of

land, depending upon classification of the land allotted, which includes pasture, irrigated land, homestead. As of this date, the number of individual owners has increased from 1,188 to in excess of

4,000, and the number of tracts maintained by the Bureau of Indian Affairs has increased from 1,189 to in excess of 2,970. There

are presently 2,273 tracts in individual ownership and 699 tribal

ownership tracts, with a total of 18,731 individual interested tracts.

In addition, there are 1,931 mineral tracts in individual ownership

and 44 tribal ownership mineral tracts, with a total of 24,120 individual ownerships.

At Fort Belknap, we have had a land acquisition program since

the 1930’s and have reacquired a little less than one-half of the allotted lands within our reservation. Currently, approximately 40

percent of the reservation is in interest trust ownership; 43 percent

is in tribal trust ownership. The remaining 10 percent in fee patent, to include 19,000 acres of State school lands.

On behalf of the enrolled members of Fort Belknap Indian Community Reservation, I urge the Congress of the United States to

partially fulfill the trust responsibility by funding this innovative

and worthwhile project to accomplish the Land Consolidation Act

at Fort Belknap. Upon completion of this project, we estimate that

this will take from 7 to 10 years, and annual appropriations from

$3 million to $5 million respectively.

We will be able to accomplish our goal in this process and have

a program that could be replicated throughout Indian country so

that other tribes and individuals can benefit. I would like to submit

the Fort Belknap Land Consolidation Plan for the record. Additionally, I would like to refer to Arvel Hale’s affidavit submitted to the

committee. Mr. Hale, former chief appraiser for the Department of

the Interior, has designed the land data model which provides appraisals, purchase and sale of fractionated interests. This model

can be applied to the Fort Belknap Land Consolidation Act.

Thank you, sir.

[Prepared statement of Mr. Speakthunder appears in appendix.]

Senator CAMPBELL. Thank you.

We will finish with President Nunez.
33

STATEMENT OF AUSTIN NUNEZ, PRESIDENT, INDIAN LAND

WORKING GROUP

Mr. NUNEZ. Good morning, Honorable Chairman and members of

the committee.

I appreciate the opportunity to address this committee on these

very important and complex matters relating to Indian trust allotments, specifically S. 1340, a bill to amend the Indian Land Consolidation Act to provide for probate reform with respect to trust

or restricted lands.

Currently, I serve as chair of the Indian Land Working Group

and also as the chair of the San Xavier District of the Tohono

O’Odham Nation in Arizona. As currently written, S. 1340, the Indian Probate Reform Act and its predecessor, the Indian Land Consolidation Amendments of 2000, contains serious flaws that complicate tribal and individual land management, make administration of trust allotments more difficult, and threaten the trust status of allotted lands.

In order for true probate reform and effective management of

trust allotments to occur, the following areas must be addressed

with S. 1340. First, current land title information is necessary for

system reform. Title documents must be corrected to reflect real

ownership. It is a travesty that approximately 13,000 fractionated

interests have not been returned to legal Indian heirs, which is a

clear violation of the Supreme Court decision in Babbitt v. Youpee.

In addition, there is a current probate backlog of nearly 8,000 cases

impacting thousands of Indian heirs and landowners. This has put

a huge stall on real estate transactions on Indian trust allotments.

One can only imagine the public outcry which would occur if State

and county entities maintained title documents in the same manner.

The next is to amend S. 1340 to provide for judicial review in

section 2214. The current Department of the Interior appraisal system gives the regional appraiser final approval for the specific values generated by the appraisal systems. The restriction of judicial

review to section 207 only suggests that adversely affected property

owners have no legal recourse against appraisals they do not agree

with.

The next is to correct the current land acquisition program. Individual Indian landowners must be included in all acquisition pilot

projects to assure consolidation of fractionated land title. Otherwise, the tribe, often a stranger to title, becomes co-owner in an allotment. This further complicates title and creates additional

records. Currently, the Secretary is making indiscriminate purchases of fractionated interests within the designated pilot project

reservations. Purchases are not tied to individual or tribal use

plans. Tribal laws, ordinances, and land consolidation plans are not

a required consideration for these purchases. We recommend that

the committee incorporate the Management, Accounting and Distribution System into all current and future acquisition pilot

projects. This system is being used by tribes within the Great

Plains Region for local management and processing of income derived from fractionated interests.
34

This system can also be used for other real estate- related transactions—gift deeds, sales and purchases. The system works. The

DOI’s Trust Asset and Accounting Management Systems does not.

I would also like to submit for the hearing record the ILWG position in regards to the reorganization of the Department of the Interior, specifically our support of the NCAI resolution, JUN 00043 demanding the return of press records to local agencies. Full tribal

access to records is necessary for self-government and establishment of a negotiated rulemaking committee to develop trust reform

regulations, with full participation of Indian tribes and individuals

they are intended to benefit.

In closing, I would like to submit the following documents for the

record. First is ‘‘Amendments to S. 1340,’’ a summary and analysis

of S. 1340, prepared by Sally Willet, former Administrative Law

Judge, OHA–DOI, April 2002; ‘‘The Indian Land Working Group’s

Points and Concerns’’ regarding the November 7, 2000 ILCA

Amendments, and S. 1340 and associated trust ‘‘Reform’’ Reform

Measures, May, 2002; ‘‘Fractionated Interests in Land That is Held

in Trust for Native Americans,’’ by Arvel Hale, former Chief Appraiser, DOI–BIA, May, 2002; and the last is, Oklahoma Supreme

Court, ‘‘Sovereignty Symposium, an Overview of Indian Probate

Past and Present,’’ Judge Sally Willet, Cherokee Tribe, March,

2002.

We will use the testimony we have given today, as well as the

aforementioned documents, as a basis for further discussion with

members of this committee and staff as we seek the much-needed

reform related to Indian ownership, use and management of Indian

trust allotments.

Our lands and our future generations on these lands are our lifeblood. We will no longer stand for being land-rich and dirt poor, detached from our lands as your laws have tried to make us. As

members of the Indian Land Working Group, we seek to reverse

this trend. We are taking a stand on our Indian land. We seek responsible use management and control of our land resources. We

hope that you will work with us.

Thank you.

[Prepared statement of Mr. Nunez with attachments appears in

appendix.]

Senator CAMPBELL. Thank you.

Well, we do have the support of the Administration, and most,

with some minor glitches, tribal support, too. Staff tells me we

have a pretty good chance of getting this passed this year, and

hopefully we will.

Let me ask you a few questions, maybe starting with Maurice.

As the chairman of a tribe within a Public Law 280 State, does the

State try to assert jurisdiction over Indians on your reservation if

they are not members of your tribe?

Mr. LYONS. Only if we invite them in. They can come in if it is

a felony of any kind, but if there is a member of another tribe on

our reservation and they are doing something, we can call them

and they come in.

Senator CAMPBELL. Within the boundaries of the reservation?

Mr. LYONS. Yes.
35

Senator CAMPBELL. Yes; now, if I understood your testimony, it

endorses a proposal the committee considered last Congress that

would allow individuals to maintain the trust status of their land

by having underlying legal title held by the tribe, but which would

allow successive generations of lineal descendants to devise a

unique interest. You spoke about the two ladies. Do you feel that

approach balances tribal interests and individual interests?

Mr. LYONS. Yes; I really do, because in the end, the tribe owns

it. Sooner or later, the lineal descent will be gone.

Senator CAMPBELL. I do not know if all tribes support that or

not. Would you consider allowing an opt-in provision in this bill,

where the tribes that believe in that could opt in; other ones that

did not would not have to?

Mr. LYONS. Yes.

Senator CAMPBELL. President Speakthunder, you suggested repealing of the definition of ‘‘Indian’’ but current law allows Indian

tribes to decide who can inherit trust land because they can decide

whether a person is a member of that tribe or eligible to become

a member of the Indian tribe. Since literally every tribe can determine their own enrollment and their own members, why would we

need to repeal the definition of ‘‘Indian’’?

Mr. SPEAKTHUNDER. Today, sir, we have—approximately 11⁄2

years ago we had a secretarial election and reduced our enrollment—the community voted and reduced our enrollment from onequarter to one-eighth. And it brought on the interest of, as far as

challenges go, of a lot of fractionated land. From that standpoint,

we——

Senator CAMPBELL. Did that resolution pass your Council?

Mr. SPEAKTHUNDER. Yes; we did, sir. And from standpoint, we

came up with a lot of issues as far as fractionated land goes, and

so this is why we brought up this issue here today with the provisions of the testimony.

Senator CAMPBELL. Maybe let me ask all of you, on your reservations—maybe start with Tex—are there lands owned within your

reservation that are State lands or school lands?

Mr. HALL. Go ahead.

Mr. SPEAKTHUNDER. Yes; as far as we are concerned, yes, we

have multiple acres, sir, is State land and school sections.

Senator CAMPBELL. There is some State land within the boundaries of the reservation?

Mr. SPEAKTHUNDER. Yes; and we do pay taxes on that.

Senator CAMPBELL. Would the State be interested in transferring

that land for an exchange of other Federal lands? Has anybody

ever approached them about that?

Mr. SPEAKTHUNDER. No; we have not, sir.

Senator CAMPBELL. Mr. Nunez, how about your reservation?

Mr. NUNEZ. No, sir; the San Xavier Indian Reservation does not.

Senator CAMPBELL. There is none.

Mr. LYONS. No; we do not have any that are owned by the State,

but we have some that are out of trust, and we have to pay taxes

on individual tribal lands.

Senator CAMPBELL. They are out of trust, but tribal members pay

taxes on them.
36

Mr. LYONS. It belonged to—somebody bought it a long time ago

and it was out of trust. I bought it back, specifically me, and I have

to pay taxes on that. And I have been trying to get it back into

trust.

Senator CAMPBELL. Yes; that is the process, isn’t it?

Mr. LYONS. Yes.

Senator CAMPBELL. Tex?

Mr. HALL. Mr. Chairman, we do not have per se within the exterior boundaries, but just adjacent to the reservation we have

15,000—well, it is actually 10,000 acres of tribal land we acquired

in fee. This is former treaty land, but there is 5,000 acres that are

part of this ranch that we purchased—4,000 BLM and 1,000 State

school lands. We did ask about purchasing that, and the State is

reluctant to do it, and the BLM says——

Senator CAMPBELL. Purchase or trade?

Mr. HALL. Purchase or trade, they are reluctant to do it. And the

BLM at first said no, but they are becoming interested in a trade.

Senator CAMPBELL. What was the resistance from the State?

Why wouldn’t they want to trade it?

Mr. HALL. Evidently, they had some moratorium that they were

dealing with. But we presented it to the State Land Committee and

talked about for jurisdictional purposes, since we own this ranch

that is adjacent to the reservation now, that it would be in the best

interests if the tribe could purchase or trade. They have not gotten

back to us, but it has been a year now. So there has been some

reluctance, but I think they are starting to see that it would be in

the best interests of everyone concerned if the tribe could acquire

those lands.

Senator CAMPBELL. Well, put your NCAI hat on for 1 minute, instead of the tribal hat.

Mr. HALL. All right.

Senator CAMPBELL. Some of the testimony presented to the committee requests that we hold land in trust for individuals even if

they are not treated as an Indian for any other purpose under Federal law. Does NCAI share the concern that that may be watering

down the Federal Government’s trust responsibility?

Mr. HALL. Yes; I believe so, Mr. Chairman. We have deliberated

that for quite some time, and many tribes are now calling us about

it. So we have not passed a resolution because of just that. And of

course, we have to get the consent. I am thinking we should bring

this up in our mid-year conference next month, Mr. Chairman, and

really talk about this and have maybe a presentation to the tribes.

Then we could look at some resolution to that effect.

Senator CAMPBELL. Do you feel that it would open up an opportunity for States to try to regulate activities of such individuals

within the reservation, or they might challenge tribal jurisdiction

even over trust lands if that happened?

Mr. HALL. Definitely. When you even think about lands that you

are talking about, or even right-of-ways, we all know that the Supreme Court in A–1 Straight did that. They gave fee land or rightof-ways that were on a State highway and tribes did not have jurisdiction in that Supreme Court case decision, so we feel that would

lead to what you are saying, and further erode tribal sovereignty.
37

Senator CAMPBELL. Your testimony recognized that the 2000

amendments to ILCA tried to give Indian tribes the tools to become

partners in consolidating the fractionated interests. I think it is

really a step in the right direction. Can you give me maybe one or

two specific examples of how we can do this without taking money

away from other Indian programs in a very tight budget year?

Mr. HALL. We have our budget meetings, Mr. Chairman. Neal

McCaleb is heading down for the Bureau of Indian Affairs. We are

working with the Department of the Interior, of course, with the

trust reform. This is a major part of the initiative for trust reform.

So we know that in fiscal year 2002 I believe there was $300 million that was allocated for trust reform. I believe it was one-half

for the Bureau and one-half for the Office of Special Trustee.

We feel that, and I have been a part of the BIA budget process

now for 4 years, Mr. Chairman, and we have never really—well, I

will just say it. We never dealt with fractionation. So we need to

put this and include it in our budget somewhat, even if it means

taking a part of that $300-plus million and allocating a portion of

that money for fractionation. Because when I asked the government officials specifically how they came up with $300 million,

there was really no—I think it was just a projection and there was

really no clear-cut formula. So I think there is possible room in

that allocation to do just that.

Senator CAMPBELL. I hope so. I hope so. It is pretty clear to me

and ought to be clear to anybody, when you have land that is

fractionated that much, the loss of opportunities for jobs or economic development or farming or anything, it just goes down the

drain. And although it might cost money, some investment to consolidate, I would think the long-range result would be there would

be a heck of a lot more economic viability on the land, on the reservations, which would offset anything you spent up front to do it.

Mr. HALL. Absolutely, Mr. Chairman. There will be a point at

some time when we get around this curve, but right now we are

behind the curve until we pass some amendments, such as we are

talking about today on S. 1340, and then put the adequate funding.

So the amendments and the funding are critical for getting around

that curve, and so we are in support of doing that, Mr. Chairman.

Senator CAMPBELL. Thank you, Tex.

President Nunez, can any lineal descendant inherit trust land on

your reservation?

Mr. NUNEZ. Yes, sir; they can.

Senator CAMPBELL. And you propose in your testimony that the

Federal Government should hold trust land for anyone who can

demonstrate documentable Indian blood, even if they don’t meet

the definition of ‘‘Indian’’ for any other Federal program. Is that

correct?

Mr. NUNEZ. Yes, sir; that is correct.

Senator CAMPBELL. Give me an example of how you would document?

Mr. NUNEZ. Well, first and foremost, it would depend on the specific tribes’ normal policy. But in terms of others who may have

been alienated from their specific tribes and that may have been

not recognized, but they still would have some sort of documentation stating that they did belong to a certain indigenous group.
38

That should be honored as well because it is not so much by blood

quantum as it is also lineage, as you mentioned previously. There

are a lot of Indian people that know that they are Indian, but some

really cannot prove it as well. So it is a difficult task.

Senator CAMPBELL. Yes; up at the Northern Cheyenne Tribe we

had a baby that was not enrolled and the parents were killed years

ago. The baby was adopted and later on, years later, 35 or 40 years

later, she came back to the reservation and wanted to reestablish

ties and be enrolled. And there was no record. They could not find

anything. But interestingly enough, some of the older people remembered that the baby had a birthmark, and this lady had the

exact same birth mark and they enrolled her based on what she

had heard from her adopted parents and that birthmark. So I

guess there is different kinds of proof about how you come home.

In the old times, there were so many people left under bad circumstances, it is hard to track ancestry sometimes.

The committee spends a lot of time hearing from people, as you

might guess, and people who feel Indian tribes should not exercise

jurisdiction over them because they cannot participate in tribal

elections. All of you have heard that.

Austin, your proposal allows people who are not eligible for membership in Indian tribes to own trust lands, but would you suppose

those people will at some time challenge tribal jurisdiction over

them or want to run for tribal government or something of that nature?

Mr. NUNEZ. I suppose that they would, sir, but I would think

that they would probably honor the specific respective tribe that

they have their interest in and would abide by their rules and regulations.

Senator CAMPBELL. Well, I hope so too, but apparently at least

on one documented case somebody that was almost in that exact

same position on the Yakima Reservation had inherited tribal land

and subdivided it. He went as far as the Supreme Court—went all

the way up the court system to try to break that bond.

Well, I have no further questions, but I certainly do appreciate

your appearing today. The normal process is that we leave the

record open for 2 weeks. So if you have any additional comments

or comments of your tribes, if you could get them in within 2

weeks, I would appreciate it.

Thank you very much for appearing here today. This committee

is adjourned.

[Whereupon, at 11:04 a.m., the committee was adjourned, to reconvene at the call of the Chair.]
(39)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING

Thank you, Mr. Chairman. It is good to be here today to discuss Indian Land Consolidation and probate reform. The Eastern Shoshone General Council from my

home state recently created a special committee to discuss this very important issue.

I would like to submit the statements of Ben O’Neal and Will O’Neal, two members

of the Eastern Shoshone Indian Land Consolidation Committee, for the record and

thank this committee for listening to their concerns.

The committee has spent this session of Congress addressing many problems facing Indian country. We know that developing infrastructure is necessary for businesses to prosper, and for economic opportunities to flourish. We know that improving telecommunications will give young children more access to information. Without computer training, we will see another generation of Native Americans struggling to compete in our fast-paced technological age. We know that building roads

and improving transportation opens markets and allows tribes to develop their resources. On the Wind River Reservation, these needs are often stifled by

fractionated lands. The process for obtaining rights of way is complicated and time

consuming. Further, the Bureau of Indian Affair’s Wind River Agency continues to

face a tremendous backlog in managing these parcels of land.

Looking at the big picture, the need for consolidated land is clear. However, the

realities of our actions have rippling effects for thousands of Indian families. From

a Federal perspective, the government has a unique trust obligation to two very

unique constituencies—those of the individual Indian land owners and those of the

tribes. It is important to hear the perspectives of both of these groups, particularly

with probate laws. I will be interested to hear the concerns of our witnesses on probate reform efforts and look forward to working with my colleagues to address this

issue.

Thank you Mr. Chairman.

PREPARED STATEMENT OF NEAL MCCALEB, ASSISTANT SECRETARY, INDIAN AFFAIRS,

DEPARTMENT OF THE INTERIOR

Good Morning, Mr. Chairman and members of the committee. Thank you for the

opportunity to appear before you today to present the views of the Administration

on S. 1340, a bill to amend the Indian Land Consolidation Act of 2000 to provide

for probate reform with respect to trust or restricted lands. We support the bill.

In particular, I want to commend your staff for their efforts in developing this legislation. S. 1340 will provide the American Indian people who own trust and restricted assets with one uniform probate intestate code that can be applied throughout Indian country. The legislation is clearly the product of a lot of hard work by

Departmental employees and members of your staff in order to achieve the common

goal of reforming the Department’s Indian probate program.
40

During tribal consultations held in July and August 2000 on the proposed probate

regulations, many tribes recommended and supported a uniform probate intestate

code. At the present time, Federal statutes provide that the law of the State where

the land is located be applied in the distribution of the estate. See 25 U.S.C. Section

348. As a result of inter-tribal marriage, it is not uncommon that an Indian descendent owns lands on reservations in several States. The effect of applying up to

33 different State laws to the restricted and trust lands of a decedent results in disparate and unfair treatment of the distribution of the entire estate to the same

heirs.

For example, in Nebraska a surviving spouse is entitled to receive the first

$50,000 of the estate. Thereafter, the law provides that the surviving spouse receive

one-half and children get one-half of the remainder of the estate. Minnesota law provides that a surviving spouse’s share is the first $150,000 plus one-half of the balance of the intestate estate if all of the heirs are also heirs of the surviving spouse.

In contrast, Wisconsin law provides that a surviving spouse receive 100 percent of

the estate unless one or more children are not the children of the surviving spouse,

then the surviving spouse receives only one-half. New Mexico law differs from the

previous examples in that a surviving spouse gets all the community property, then

one-fourth of the estate if there are descendants of the decedent.

Another area of concern is the inheritance rights of adopted children and the inconsistencies in state laws. Minnesota law provides that an adopted child may inherit from his/her natural parents, while Montana law provides that an adopted

child may only inherit from the adopted parents.

The enactment of a uniform intestate code for trust and restricted estates is of

great benefit to both the heirs and the Department. The benefit to the heirs is that

the same law will be applied to all the trust and restricted estate of the decedent

no matter where the real property is located. A uniform intestate probate code will

provide for the division of shares of the entire estate and will be the same throughout the United States. The heirs may disclaim their interests or otherwise agree to

a settlement to distribute the estate if the children want to give a larger share to

their surviving parent. The Federal Government’s cost to update and maintain land

records will be reduced. The Department will be able to decide cases and issue orders in a more timely manner. A new body of Federal law will be created and decisions will be more consistent across the Nation, resulting in fewer appeals. The necessity of thoroughly researching state laws will no longer exist, it will take less

time to issue an order determining heirs. Finally, a uniform intestate code may encourage Indian tribes to adopt their own inheritance codes. The uniform intestate

code will serve as a model for tribes to develop their own tribal probate codes.

The proposed uniform intestate succession facilitates the consolidation of interests

to remain in trust or restricted status and complements the provisions of Indian

Land Consolidation Act to minimize further fractionation of Individual Indian interests in trust and restricted lands. For estate planning purposes, one uniform intestate code will provide a foundation to encourage the execution of wills for disposition

of trust or restricted assets.

For example, the proposed section for pretermitted spouses and children will necessitate specific estate planning if the decedent marries after the execution of a will

but intends to leave nothing to the new spouse. S. 1340 at section 232(d). Similarly,

if the testator divorces after executing a will and has left property to the former

spouse, the devise is revoked by law unless the will provides otherwise. S. 1340 at

section 232(e)(2).

State probate laws are often amended and likewise affect long-term estate planning. A change in State law may also necessitate the execution of a new will. Thus,

frequent amendments of state laws frustrate the purposes of promoting estate planning among Indian landowners. There will obviously need to be considerable community education on the new sections of the proposed uniform intestate law that

will require more comprehensive estate planning.

We recommend that S. 1340 include a provision that excepts the application of

the uniform intestate code to the Five Civilized Tribes of Oklahoma until such time

as the Five Nations bill is enacted. The Five Civilized Tribes are subject to the state

district courts of Oklahoma and Oklahoma probate law is applied to determine intestate succession. Thus, the removal of the exception should be reflected in S. 2880,

the Five Nations legislation.

We would like to suggest amendments to portions of existing Federal statutes relevant to inheritance prior to the passage of S. 1340. The amendments are:

25 U.S.C. section 348—After the second ‘‘Provided,’’ strike the words, ‘‘That the

law of descent in force in the State or Territory where such lands are situate shall

apply thereto after patents therefore have been executed and delivered, except by
41

the’’ and insert ‘‘the Indian Land Consolidation Act, as amended, shall apply where

such trust or restricted assets are located’’. See S. 1340 at section 234(c).

25 U.S.C. Section 372—Insert before the word ‘‘hearing’’ in the words ‘‘upon notice

and hearing’’, the words ‘‘opportunity for a’’. Insert the words ‘‘probate the decedent’s trust estate, and pay valid creditor’s claims out of funds in such estate or

funds that may accrue up to the date of death of the decedent’’ after the word ‘‘decedent,’’. Insert ‘‘Provided, That in the payment of claims, 31 U.S.C. section

3713(a)(1)(b) shall not apply.’’ after’’section 373 of this title.’’ 25 U.S.C. section 373—

Insert ‘‘Provided also, that the Secretary shall pay valid creditor’s claims out of

funds in such estate or funds that may accrue up to the date of death of the decedent except that 31 U.S.C. section 3713(a)(1)(b) shall not apply:’’ after the words ‘‘or

use it for their benefit:’’

With that Mr. Chairman, I would just like to say thank you, again, for the hard

work of your staff in drafting this much needed piece of legislation. I would be

happy to answer any questions you may have for me.

PREPARED STATEMENT OF TEX G. HALL, PRESIDENT, NATIONAL CONGRESS OF

AMERICAN INDIANS

Good morning, Mr. Chairman and Vice Chairman and members of the committee.

My name is Tex Hall. I am the president of the National Congress of American Indians and the chairman of the Mandan, Arikara & Hidatsa Nation. Thank you for inviting NCAI to testify before you on S. 1340, a bill to amend the Indian Land Consolidation Act. The National Congress of American Indians [NCAI] was established

in 1944 and is the oldest, largest, and most representative national American Indian

and Alaska Native tribal government organization. We appreciate the opportunity

to participate on behalf of our member Indian nations in the legislative process of

the U.S. Congress and to provide this committee with our views.

The problem of fractionation and fragmentation of Indian land is rooted in a history that is familiar to members of this committee. In the late 191 and early 20th

century, the Federal Government began a push to acquire tribal land and assimilate

Indian people through reservation ‘‘allotment’’ programs. The General Allotment Act

of 1887 was the most broadly applicable of the allotment statutes, and between the

years of 1887 and 1934 the tribes lost more than 90 million acres, nearly two-thirds

of all reservation lands. In 1934, Congress passed the Indian Reorganization Act of

1934 [IRA], in order to stop allotment and the abrupt decline in the economic, cultural and social well-being of Indian tribes caused by allotment. As noted by one

of the IRA’s principal authors, Congressman Howard of Nebraska, ‘‘the land was

theirs under titles guaranteed by treaties and law; and when the government of the

United States set up a land policy which, in effect, became a forum of legalized misappropriation of the Indian estate, the government became morally responsible for

the damage that has resulted to the Indians from its faithless guardianship. ‘‘(78

Cong. Rec. 11727–11728, 1934.)

The damage to the tribes and their members from allotment has been enormous,

and the purpose of the Indian Land Consolidation Act is to specifically address some

of these problems. First, because of the inheritance provisions in the allotment acts,

the ownership of many of the trust allotments that have remained in trust status

has become fractionated into hundreds or thousands of undivided interests. According to the BIA, the 56 million acres of trust and restricted land under its supervision are divided into 170.000 tracts of land with 350,000 Indian owners and most

important, 2 million different owner interests. Fractionation has created an accounting nightmare for the Federal Government and enormous difficulties in putting the

land to beneficial use. Second, the inheritance provisions also have created a situation where allotted land interests pass to heirs who are not members of Indian

tribes, and the interest then is no longer in trust status. For many tribes far more

Indian land passes out of trust than into trust each year through this process. This

loss of trust land is a continuation of the disgraceful legacy of the allotment era,

and compounds the jurisdictional and management difficulties in dealing with Indian land. Even more disgraceful is the fact that in many cases the heir is not

aware that they are required to begin paying county taxes when the land goes out

of trust, and after a period of 1 year, the county acquires the interest in tax foreclosure. The tribe provided all the services for 100 years and then after 1 year the

county acquires the land interest as a complete windfall and the minerals or timber

that reside on that land.

Finally, allotment left many tribes with scattered parcels and often rendered the

tribal land base essentially unusable from a practical standpoint. It was not just the
42

loss of land, but also the manner in which the remaining land was separated and

divided which has created such ongoing hardship for the tribes:

The opening of the reservation in this fashion [under the allotment policy] had

many ramifications other than the sheer loss of land. Much of the remaining Indian

land estate was crippled. As any large rancher, miner, or timber executive can attest,

effective resource management can best be achieved on a large, contiguous block of

land in single ownership. The allotment program deprived most tribes of that opportunity. The tribal land ownership pattern became checkerboarded, with individual

Indian, non-Indian, and corporate ownership interspersed.

C. Wilkinson, American Indians, Time and the Law, at 20.

In sum Mr. Chairman, I do not think that I can overemphasize the importance

of land consolidation in Indian country. Of the 90 million acres of tribal land lost

through the allotment process, only about 8 percent have been reacquired in trust

status since the IRA was passed sixty-five years ago. Still today, some tribes have

no land base, many tribes have insufficient lands to support housing and self-government, and most tribal lands will not support economic development. Further improvements to the Indian Land Consolidation Act are vital to the future of Indian

communities.

The Indian Land Consolidation Act

Congress passed the Indian Land Consolidation Act [ILCA] in 1984 in order to

address fractionation and provide for tribal land consolidation. ILCA authorized new

powers for tribal land consolidation, the buying, selling and trading of fractional interests, and perhaps most importantly for our purposes Section 207 of the ILCA prevented the devise or descent of certain small interests in trust and restricted lands.

Specifically, any interest that is 2 percent or less of the total acreage of a tract

would not pass to a decedent’s heirs or devisees if the interest realized less than

$ 100 in income during the preceding year. Such interests escheated to the reservation’s tribal government. Congress amended this provision the next year. The 1984

amendment altered the income generation test to take into account a 5-year earning-history of each interest. The amendment also allowed an owner to prevent an

interest’s escheat by devising the interest to another owner in the same parcel of

land. The original version of section 207 of the Act was found to be an unconstitutional taking of property in 1987 (Irving v. Hodel). In 1997, the Supreme Court also

ruled against the constitutionality of the 1984 version of section 207 (Youpee v. Babbitt (1997)).

The 2000 ILCA AMENDMENTS

The Supreme Court decisions were clearly correct in refusing to allow Congress

to disenfranchise Indian landowners without compensation, but the decisions also

eliminated the major mechanism contemplated in the act for limiting the fractionation of Indian land. The purposes of the 2000 amendments were to create some

new mechanisms for addressing fractionation.

Tribal Probate Codes and Descent and Distribution Rules

In particular, the 2000 amendments addressed tribal probate codes and both testate and intestate succession of Indian land. Section 206 was rewritten to remove

procedural impediments that discouraged Indian tribes from enacting their own probate codes. In the absence of such tribal codes, the new version of section 207 provides uniform rules for the descent and distribution of interests in Indian lands. Before these new rules apply to any estates, the Secretary must provide the notice required by section 207(g) and a 1-year waiting period must then pass. These new

rules will only apply to the estate of those Indians owning trust property who die

after that 1 year after the Secretary’s certification, and to date they have not yet

taken effect.

Section 207 is intended to encourage the consolidation of interests and prevent the

loss of trust or restricted land when it is inherited by non-Indians. The new rules

are applicable to both testate (with a will) and intestate (no will) Indian estates.

To prevent Indian lands from passing out of trust, non-Indian heirs will generally

only receive a life estate in Indian lands. Because the non-Indian heir owns less

than the full interest, a ‘‘remainder interest’’ is created, and this remainder interest

must go to an Indian. If there are no such heirs, the remainder may be purchased

by any Indian co-owner of the parcel. The proceeds of such a sale are made a part

of the decedent’s estate. If no offer is made to purchase the parcel, the remainder

interest passes to the tribe.

In some instances where the Indian owners of trust land may not have an Indian

heir and the general rule would deprive them of the ability to devise more than a

life estate to any of their heirs, the 2000 amendments provide an exception. They

may devise an interest to either their Heirs of the First or Second Degree or Collateral Heirs of the First or Second Degree. Because these people are non-Indians, the
43

interest would pass in fee, not in trust. There is also an option for these interests

to be purchased by the tribe.

Finally, section 207 is intended to address fractionation by limiting the way that

Indian land passes as a ‘‘joint tenancy in common.’’ If a person devises interests in

the same parcel to more than one person, unless there is language in the will to

the contrary, it is presumed to be a ‘‘joint tenancy with right of survivorship,’’ mean- ing that each of a decedent’s heirs share a common it title, so the la surviving member of the group obtains the full interest as it was owned by the decedent. An interest of less than 5 percent passing by intestate succession will also be held by the

heirs with the ’right of survivorship.’’ The Secretary of the Interior must certify that

it has the capacity to track and manage interests that are held with the right of

survivorship before this provision take effect.

NCAI supported the 2000 ILCA amendments because we believed that overall

they had a lot of very positive provisions in them. Without amendments to ILCA,

the 2 million existing ownership interests in allotted Indian lands will continue to

not grow exponentially and Indian land will continue to go out of trust status. At

the time, we also recognized that there are a lot of difficult tradeoffs and that no

bill could come to a perfect resolution. We relied on the assurances of the committee

that the 2000 amendments would not be the last word on this topic, but that we

could expect to be able to come back with technical amendments to continue to correct and improve the statute as we gain more experience with it.

For that reason we were also comforted by the provisions that ensured that the

descent and distribution provisions would not take effect until 1 year after the secretary provided notice to all Indian landowners. We believe that S. 1340 is taking

the right approach in changing some parts of the 2000 Amendments before they do

take effect. In particular, concerns have been raised by Indian landowners that

some provisions could limit their ability to devise their land to their heirs, whether

they are Indian or not, and that the ability to devise land to your heirs is an inherent part of a property right that, under the U.S. Constitution, cannot be taken without compensation.

History has dealt this committee an almost impossible hand—either allow Indian

land to be devised out of trust and continue the unconscionable loss of Indian land,

or restrict the rights of inheritance so that it causes undue harm to the owners. This

is an issue that has been ignored, and we greatly respect the committee’s attempt

to wrestle with this issue to find an appropriate accommodation. S. 1340 demonstrates that you are willing to continue working on this thorny issue. There isn’t

going to be an easy obvious answer, but only tough choices that will respect tribal

government and won’t cause undue harm to Indian landowners.

We recognize the need for the type of amendments that are proposed in S. 1340

regarding devise to non-Indian heirs under Federal law and in a general sense we

support them. We would like to hear from the other tribes and continue to talk with

you about the specifics to see if there is a way to keep the land in trust status and

under tribal jurisdiction. We also think it is important to simplify the provisions so

that they will be more readily understandable for the Indian landowners, the tribes,

and the BIA realty offices that must provide advice on these matters. Certainly

these are complex property law issues, but our concern is that we must make the

law clear and understandable to those who will be affected. Some clarifications on

the effective date of both the new provisions and the 2000 Amendments also seems

to be necessary.

We have very serious questions about the provisions of S. 1340 that place limitations on Federal approval of tribal probate codes. One of the powers of tribal government is the power to control the devise and descent of property. This inherent tribal

power is not constrained by the constitutional provisions that limit Federal and

State authority. We would like to discuss with the committee whether it would consider amendments to the ILCA that would not undermine tribal jurisdiction over

land, but instead would be carefully crafted to utilize inherent tribal authority and

tribal probate law as a mechanism to address the issues of fractionation and land

loss. We should be reminded that the fundamental trust relationship is with the

tribe as a whole and the allottees’ interests exist solely because of their status as

members of Indian tribes. In this instance, where the Federal trustee has already

violated its trust responsibilities to the tribe by allotting the land and is in a position where Federal law must allow Indian land to move out of tribal control, the

use of tribal probate law to restrict the inheritance of fractionated interests should

be considered as a tool for tribal governments to consider in addressing the problems of fractionation and the hemorrhaging loss of Indian lands.

Pilot Program for the Acquisition of Fractional Interests

In 1994 the BIA started a consultation process to solicit input on how to address

land fractionation. More than a majority of the individuals who participated indi-
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cated that they would be in favor of a program that allowed them to sell their

fractionated interests for consolidation in the tribe. Interior’s fiscal year 2000 budget included $5 million for this pilot project, and under section 213, the Secretary is required to continue this project for 3 years and then report to Congress on the feasibility of expanding the program to provide individuals and greater tribal involvement.

If I have one point to make, it would be that this pilot program must be expanded

and adequately funded. Failing to deal with land fractionation is like failing to fix

a leaking roof. You may think you are saving money, but in the long run it will

cost you plenty in both money and grief. We believe that the Federal Government

must make the investment in land consolidation now in order to prevent land fractionation, and all of its attendant difficulties for both the Federal Government and

tribal governments, from growing into an exponentially greater problem. For the fiscal year 2003 budget, I believe that we should target $33 million. I would note that

$33 million is the amount that the Administration calculates that it spends on an

annual basis to administer those highly fractioned interests that are of less value

than the costs of administration. This investment of equal amount would quickly

repay itself in later years.

TRIBAL LAND CONSOLIDATION PROGRAMS

I would like to emphasize that the primary actor in Indian land consolidation is

not the Federal Government, but the Indian tribes who have developed land consolidation programs on their own initiative. Just as in every other area of Indian policy,

Federal efforts on land consolidation will only be as successful when they work in

partnership with the tribal governments in a government-to-government relationship. Tribes have acquired hundreds of thousands of fractionated ownership interests in order to further their own land consolidation and land recovery goals, and

every one of these transactions works to the benefit of the Federal Government.

The only way that fractionation is going to be addressed on the necessary scale

is if tribes have ownership in the process and the Federal Government assists tribes

with that effort. Cobell gives Congress the reason to get serious about this effort.

We are asking for the development of a partnership between the Federal Government and tribal governments that will provide tribes with the tools and incentives

to acquire fractionated interests and consolidate their lands.

We also believe that the committee should consider amending S. 1340 to include

a mechanism for tribes to partition non-Indian interests in Indian land that are held

in common with the Indian owners. Tribes are acquiring fractionated interests because they want to use the underlying land for a purpose, to build a school, or housing or for agriculture or any of a number of important purposes. But a tribe does

not have a ready mechanism to acquire or partition the non-Indian interest that is

not held in trust. The tribe may have 98 percent of the interests, but no mechanism

to acquire the final 12 percent if they are in fee status.

Tribal programs would also benefit from lower interest rates on the loans, and

other means of lowering the tribes’ out-of-pocket expenses, freeing up resources for

additional acquisitions. We are researching some ideas that would expand the efforts of tribal land consolidation programs, including:

No.1. Create categorical exemption for NEPA either legislatively or through Interior regulation, in order to reduce the time and expense related to land transfers;

No. 2. Provide tax-exempt bond financing to tribes to acquire lands for consolidation;

No. 3.Loan program that provides Federal funding to buy down the cost of a loan,

thus buys down points on the interest rate; and

No. 4. Develop a tax credit for turning in fractionated interests or other tax credit

structure that would have incentives for owners of fractionated interests.

We believe that the best thing that can happen in the near future is two things,

first, move a variation of S. 1340 on the issues that are ready for inclusion in the

bill and are within the jurisdiction of this committee and second, develop a collaboration between Interior, Congress and the tribes in creating new incentives for land

consolidation that may take longer to develop or require the involvement of a broader range of Congressional committees. This second step could perhaps take the form

of an amendment to section 213 that would direct the Department of the Interior

to begin its study of coordination with tribal governments immediately.

We are also aware that the Department of the Interior is thinking of expanding

its efforts in land consolidation. There are different issues and interests that tend

to shape the land consolidation strategies of tribes versus the Federal Government.

We need to understand these issues and interests in order to craft the best possible

short-term and long-term strategies that will promote tribal land consolidation efforts and tribal trust assets management while reducing Interior’s management an

administrative oversight and transferring the cost savings to further tribal land con-
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solidation efforts or other trust services. We believe that allotment-by-allotment

land acquisition and consolidation strategies that have the necessary funding and

human resources will be necessary. We want to set up some talks with Interior and

the committee to explore these issues further.

UNEXERCISED RIGHTS OF REDEMPTION

We would also like to strongly endorse the provisions in S. 1340 that would allow

Indian tribes to exercise a right of redemption for interests in Indian land that have

passed out of trust that would be subject to a tax sale or tax foreclosure proceeding.

As I noted above, the inheritance provisions allow allotted land to pass to non-Indians, meaning that for many tribes far more Indian land passes out of trust than

into trust each year. In many cases the heir is not aware that they are required

to begin paying county taxes when the land goes out of trust, and after a period

of 1 year, the county acquires the interest in tax foreclosure. The tribe provided all

the services for 100 years and then after 1 year the county acquires the land interest as a complete windfall and the minerals or timber that reside on that land. This

is a severe injustice and we are glad to see that S. 1340 has a provision to address

it. We would like some clarification on the notification procedures to the tribe, and

would also note that this provision is dependent on providing adequate resources

for tribes to be able to exercise the right of redemption.

INDIAN PROBATE REFORM

We would also like to support the creation of a uniform Federal probate code for

interests in Indian land, with the understanding that it would serve as a default

only when the tribal government had not developed its own probate code. As the

findings in S. 1340 outline, one of the major problems with the General Allotment

Act is that it did not allow Indian allotment owners to provide for the disposition

of their land, and it mandated that allotments would descend according to State law

of intestate succession.

Once again we would ask the committee to reach out to the tribes and consider

their views on the specific provisions of the uniform Federal probate code proposed

in S. 1340. NCAI has not adopted a resolution on these provisions and they raise

a number of new issues, so we are interested in hearing more from the tribes. One

thought that we have is that there is a general sense among Indian tribes that an

allotment would pass to the lineal descendants of the original allottee, rather than

to any unrelated heirs of a surviving spouse. We would like to discuss this and other

specifics in more detail with tribal leaders and with the committee.

CONCLUSION

Thank you for the opportunity of appearing before you today. We greatly appreciate the work of the Senate Committee on Indian Affairs, and would like to thank

you especially for your attention to this most important Issue.

PREPARED STATEMENT OF ARLYN HEADDRESS, CHAIRMAN, ASSINIBOINE AND SIOUX

TRIBES, FORT PECK RESERVATION

I am Arlyn Headdress, chairman of the Assiniboine and Sioux Tribes of the Fort

Peck Reservation. I thank the committee for the opportunity to submit testimony

on S. 1340, the Indian Probate Reform bill. I think it is important that the record

for this important bill reflect the history of the Fort Peck Reservation and why we

are where we are today.

The Fort Peck Reservation was set apart for the exclusive use and occupancy of

the tribes under an Agreement of 1888 between the tribes and the United States.

Unfortunately, the promise to keep these lands for the permanent use of the tribes

was not kept by the United States. Instead, the United States implemented its Fort

Peck allotment policy in 1908—leading to the massive loss of lands, and a host of

land-related problems that continue to this day.

The allotment policy arose for two different notions. On the one hand, allotment

was supported by the philanthropists of the day, who thought that breaking up tribal landholdings into separate parcels held by individual Indians would help to ‘‘civilize the Indian.’’ The idea, in essence, was to destroy the Indian way of life, and

make the Indians adopt the ways of the white man. On the other hand, a substantial impetus for allotment also came from non-Indians eager to take Indian lands.

Sometimes, the pressure for lands came from local frontiersmen near the reservations. In other instances, it was a more general pressure from railroads and easterners hoping to head west.

These two forces combined to bring about the allotment policy contained in the

General Allotment Act of 1887, 24 Stat. 388. This measure reflected both purposes

of allotment. It authorized the President to break up tribal lands into allotments

of 160 acres each for individual Indians. These allotments were to be held in trust
46

by the United States for individual Indians for a period of 25 years. At the same

time, the General Allotment Act authorized the United States to dispose of the

lands in excess of those used for allotments to individual Indians. These lands often

referred to as ‘‘surplus’’ lands—were authorized to be made available to non-Indian

homesteaders.

The policy reflected in the General Allotment Act was generally implemented on

a reservation by reservation basis, through enactment of specific allotment acts addressing each covered reservation. At Fort Peck, the allotment policy was implemented through a 1908-act. This act authorized the breaking up of tribal lands— lands promised to the tribes forever—into allotments to individual Indians. The acts

also authorized the sale to non-Indians of reservation lands not selected for allotments.

The allotment policy proved a dismal failure in many respects. Nevertheless, it

did succeed in its avowed goal of transferring Indian lands to non-Indian homesteaders, not just at Fort Peck, but on reservations nationwide: The majority of Indian lands passed from native ownership under that allotment policy. Of the approximately 156 million acres of Indian lands in 1881, less than 105 million remained in 1890, and 78 million by 1900. Indian land holdings were reduced from

138 million in 1887 to 48 million in 1934...Cohen’s Handbook of Federal Indian Law,

p. 138 (1982 ed.). By 1934, however, Congress realized the disastrous consequences

of allotment. As Indian lands were lost, Indian social and economic conditions worsened considerably. These conditions, documented on a nationwide basis by the

Meriam Report of 1928—a comprehensive survey of the conditions of Indian life— led to a major change in Federal Indian policy.

The Indian Reorganization Act (‘‘IRA’’) was one of the most important pieces of

Indian legislation in American history. Based in considerable measure on the findings of the Meriam Report, the IRA altered the basic thrust of the allotment policy

that immediately preceded it. Where the allotment policy sought to remove lands

from the Indians, and destroy tribal life and institutions, the IRA sought to rebuild

the reservations and the tribes, and to provide new opportunities for economic

growth and self-government on the reservations.

To reverse the allotment policy and permit the rebuilding of tribal land holdings,

the IRA contains what remains today the principal statute authorizing the Secretary to acquire lands in trust for a tribe or individual Indian, section 5 of the Indian Reorganization Act (IRA), 25 U.S.C. 465.

Today, the Fort Peck Reservation consists of over 2,000 square miles of land in

northeastern Montana. The tribes and individual Indians own about 1 million acres

of land. About 550,000 acres on the reservation are held in trust by the United

States for Indian allottees, and another 450,000 are held in trust for the tribes.

Trust and fee lands are commonly interspersed in the ‘‘checkerboard’’ ownership

pattern.

Because of this checkerboard pattern on the reservation, land restoration has

been a priority for the Fort Peck Tribes for several years. In fact, the Fort Peck

Tribes were the leaders in securing the passage of the Submarginal Lands Act, the

most significant effort since the IRA to restore tribal land bases. In 1976, Congress

enacted the Submarginal Lands Act, returning to tribal ownership lands on specified Indian reservations—including Fort Peck Reservation—that had gone out of

trust and had been classified, during the Depression, as ‘‘submarginal,’’ because of

their limited ability to support farming and ranching. These lands were returned

to trust status, without cost to the tribes. This effort took over 10 Congresses and

obviously a great deal of dedication and commitment on our part to see our lands

restored. Our commitment to this issue remains the same today.

In the last 7 years, approximately 10,000 acres of land have gone out of trust on

the Fort Peck Reservation. This is largely due to probates and land passing to children, who are not enrolled in any tribe. Thus, the tribes understand and support

the committee’s effort with the 2000 Amendments to ILCA to seek to prevent the

further erosion of tribal trust land bases. Nevertheless, we recognize that the right

of a child to inherit from his parents is a right that most believe is fundamental

and should be protected. Thus, we support the committee’s renewed effort in S. 1340

to ensure this right is protected. Nevertheless, this means that land on the Fort

Peck Reservation will pass out of trust faster than it will pass into trust.

The Tribes believe that the only way to stem the loss of trust lands, is to fund

land acquisition programs and expedite the process for restoring fee interest in allotments to trust status. As other witnesses have shared with the committee, the

Fort Peck Tribes support a concerted effort to fund land consolidation efforts. Without this effort, the disastrous Federal policies of the nineteenth century will supersede the policies and efforts of Congress in the twentieth century. In the 21st Century, we need Congress to make a renewed commitment to overturning the policies
47

of allotment and assimilation and seek to restore what was guaranteed my tribes

and other tribes throughout this country.

The tribes support the committee’s effort to enact a uniform intestate and probate

code for reservations. This is particularly important for places like Fort Peck, where

our Tribal Constitution prohibits the tribes from enacting any laws regarding the

probate of allotted lands.

In the area of probate, the tribes would like to suggest one change to the law that

involves estates of minimal trust cash balances. At Fort Peck, we have a number

of these cash only estates, where the estate is less than $100 and the beneficiaries

are in excess of 100. Thus, checks in the amount of $1 or less are issued to beneficiaries. We have found that while these checks arc delivered, sometimes they are

not cashed. Therefore, the account remains open and in fact draws interest. Because

these checks are never cashed we cannot close these probates.

We suggest that the law specifically provide that any probate check of less than

a certain minimal amount (perhaps $10) must be cashed within 365 days of receipt,

otherwise the proceeds of the checks will be deposited in a special account in the

Federal treasury that would be for tribal trust and acquisition efforts. This will

allow the accounts to be closed and this minimal amount of money to be put to beneficial purposes. Furthermore, this change would be consistent with the law regarding commercial paper and with certain states’ practices regarding unclaimed accounts.

The Tribes would also like to express our concern with the provision in S. 1340,

that would allow for child support orders from any jurisdiction to be paid from IIM

trust accounts. While we support enforcement of child support orders, the law at

Fort Peck is that for an order to be enforced it must be perfected in Fort Peck Tribal

Court. This preserves tribal authority over the people and property within the Fort

Peck Reservation. S. 1340 as introduced is inconsistent with this principle. Thus,

we would ask the committee to strike this provision from the bill.

We thank committee for the opportunity to submit this testimony.

PREPARED STATEMENT OF BENJAMIN SPEAKTHUNDER, PRESIDENT, FORT BELKNAP

COMMUNITY COUNCIL

Good morning, I am Benjamin Speakthunder, president of the Fort Belknap Community Council; a member of the Assiniboine Nation of the Fort Belknap Indian

Reservation. I am extremely honored to be able to address this committee on a very

important and complex issue that we in Indian country throughout the United

States face on a daily basis. The issue that I am speaking about impacts ALL members of our tribes, both the Assiniboine and Gros Ventre of Fort Belknap, and other

Nations and that is the ‘‘COMPLICATED HEIRSHIP’’ otherwise know as Undivided

Interest.

With respect to S. 1340 ‘‘INDIAN PROBATE REFORM ACT OF 2001’’ I offer the

following comments on behalf of the Fort Belknap Indian Reservation. Neither the

General Allotment Act (Dawes Act) nor the individual Allotment Acts contain any

provisions for Rights-Of-Way on or across other lands for access to other lands. We

feel that this should be one of the points in advising persons who make wills to consider reservation of rights-of-way on and across their lands. In addition, title status

reports need to be corrected to reflect the right-of-ways that currently exist.

Section 232. RULES RELATING TO INTESTATE INTERESTS AND PROBATE

(b) (1) (B) OTHER HEIRS: Include Great-grandchildren and other ‘‘DIRECT LINEAL DESCENDANTS’’ to be included in other appropriate sections. In addition, the

current definition of ‘‘Indian’’ must be repealed. This definition will harm Indian

country, cause jurisdictional problems, and cutoff far too many people who are Indian, yet not enrolled for a variety of reasons. A restrictive definition of Indian will

reduce trust landholdings. Defining who can inherit is a tribal authority and needs

to be determined by each respective tribal community.

In order for true consolidation to take place we recommend that a provision be

included within S. 1340 that would repeal the joint tenancy provision within the

current Indian Land Consolidation Act. Creation of joint tenancy with right of survivorship for 5 percent or less interests prevents these interests from being passed

to eligible heirs, namely children.

With respect to the intent of the ‘‘INDIAN LAND CONSOLIDATION ACT’’ AND

SUBSEQUENT AMENDMENTS, a Tribal Probate Code duly passed and adopted by

a Tribal Government should supersede not only State Law, but FEDERAL LAW as

well as it may apply to that Reservation.

The Bureau of Indian Affairs has a ‘‘LAND CONSOLIDATION PROGRAM’’ funded by Congress that is implemented, to our knowledge, with tribes in the Minnesota
48

Region. As we understand this program, the BIA purchases, on behalf of the tribe,

shares, preferably 2 percent or less, from ‘‘willing sellers’’. These shares are held in

Trust by the United States on behalf of the tribe until the rental income from the

share refunds the purchase price of the share acquired. This means that for each

share acquired, an Individual Indian Money (IIM) account must be maintained to

account for the income and repayment of that share. To me, and others, this is not

true consolidation.

True consolidation is when the share is acquired and the former owner’s account

is closed for that tract. If individuals, either co-owner of stranger, or the tribe is

provided the financial banking to acquire this share and other shares in a given

tract of land, then the tract if truly consolidated for the purpose of reducing the administrative costs of the Federal Government.

Fort Belknap was allotted by the act of March 3, 1921 (41 Stat. 1355) whereby

1,188 members of the Assiniboine and Gros Ventre Tribes received an allotment of

land varying from 400 to 520 acres of land depending upon the classification of the

land allotted (ie: pasture, irrigated, homestead, etc.). As of this date the number of

individual owners has increased from 1,188 to in excess of 4,000 and the number

of tracts maintained by the BIA has increased from 1,189 to in excess of 2,970

tracts. There are 2,273 tracts in Individual ownership and 699 tribal ownership

tracts with a total of 18,731 individual interested. In addition, there are 1,931 Mineral tracts in Individual ownership and 44 tribal ownership mineral tracts with a

total of 24,120 individual interests.

At Fort Belknap, we have had a land acquisition program since the early 1930’s

and have re-acquired a little less than one-half of the allotted lands within our reservation. Currently, approximately 47 percent of the reservation is in Individual

Trust ownership, 43 percent is in tribal trust ownership and the remaining 10 percent is fee patent, to include 19,000+ acres of State school lands.

On behalf of the enrolled members of the Fort Belknap Indian Community (Reservation) I urge the Congress of the United States to partially fulfill their trust responsibility by funding this innovate and worthwhile project to accomplish true

LAND CONSOLIDATE at Fort Belknap. Upon completion of this project, which we

estimate will take from seven (7) to ten (10) years with annual appropriates of from

$3 million to $5 million we will be able to accomplish our goal and have in place

a program that can be replicated throughout Indian country so other tribes and individuals can benefit. I would like to submit the Fort Belknap Land Consolidation

Plan for the record. Additionally I would like to refer to Arvel Hale’s affidavit submitted to this committee. Mr. Hale, former chief appraiser for the Department of

the Interior has designed a land data model which provides for appraisals, purchase

and sale of fractionated interests. This model could be applied within the Fort

Belknap Land Consolidation Plan.
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