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83–005 PDF 2003

S. HRG. 107–777

THE FIVE NATIONS CITIZENS LAND REFORM ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

H.R. 2880

TO AMEND LAWS RELATING TO THE LANDS OF THE ENROLLEES AND

LINEAL DESCENDANTS OF ENROLLEES WHOSE NAMES APPEAR ON

THE FINAL INDIAN ROLLS OF THE MUSCOGEE (CREEK), SEMINOLE,

CHEROKEE, CHICKASAW, AND CHOCTAW NATIONS (HISTORICALLY REFERRED TO AS THE FIVE CIVILIZED TRIBES)

SEPTEMBER 18, 2002

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman

BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

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

FRANK MURKOWSKI, Alaska

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

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

H.R. 2880, text of ..................................................................................................... 3

Statements:

Beaver, R. Perry, principal chief, Muscogee (Creek) Nation, Okmulgee,

OK .................................................................................................................. 59

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

Deason, Charles, council member, United Keetoowah Band, Tahlequah,

OK .................................................................................................................. 70

Gouge, Wilbur, speaker, Muscogee Creek National Council ......................... 59

Inhofe, James M., U.S. Senator from Oklahoma ........................................... 63

Inouye, Daniel K., U.S. Senator from Hawaii, chairman, Committee on

Infdian Affairs ............................................................................................... 1

Ketchum, Dee, chief, Delaware Tribe of Indians, Bartlesville, OK .............. 68

Martin, Aurene, deputy assistant secretary, Indian Affairs, Department

of the Interior ................................................................................................ 54

Proctor, Dallas, chief, United Keetoowah Band, Tahlequah, OK ................. 70

Pyle, Greg, principal chief, Choctaw Nation of Oklahoma, Durant, OK ...... 64

Robertson, Lindsay G., special counsel, Indian Affairs to Governor Frank

Keating, University of Oklahoma College of Law, Norman, OK .............. 56

Smith, Chad, chief, Cherokee Nation, Tahlequah, OK .................................. 58

APPENDIX

Prepared statements:

Anoatubby, Bill, Governor, Chickasaw Nation .............................................. 77

Beaver, R. Perry ............................................................................................... 79

Gouge, Wilbur ................................................................................................... 84

Ketchum, Dee .................................................................................................... 89

Martin, Aurene ................................................................................................. 92

Proctor, Dallas (with attachments) ................................................................. 95

Pyle, Greg .......................................................................................................... 75

Robertson, Lindsay G. ...................................................................................... 110

Smith, Chad ...................................................................................................... 111

(1)

FIVE NATIONS CITIZENS LAND REFORM ACT

WEDNESDAY, SEPTEMBER 18, 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, the Hon. Daniel K. Inouye (chairman of

the committee presiding).

Present: Senators Inouye, Campbell, and Inhofe.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The Committee on Indian Affairs meets this

morning to receive testimony on H.R. 2880, the Five Nations Citizens Indian Land Reform Act. Before I call upon the respective

leaders of Oklahoma Indian country, may I call upon the vice

chairman of the committee, Senator Campbell.

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

INDIAN AFFAIRS

Senator CAMPBELL. Thank you, Mr. Chairman, thank you for

holding this important hearing, I assume that Senator Inhofe and

Congressman Watkins will be along as they can.

The so-called Five Civilized Tribes were forcefully removed from

the southeastern portion of the United States against their wishes

and large tracts of land were set aside in an area then known as

Indian territory, today known as the State of Oklahoma.

Like other Indian reservations, the Five Tribes’ reservations

were subjected to the allotment policy of the late 1880’s. However,

Congress went even further when it allotted these Indian reservations by giving State courts jurisdiction over the lands. One Federal court referred to this system as ‘‘fatally flawed’’ and most people who have looked at this situation agreed with the judge’s criticism.

Through H.R. 2880, the Five Nations Indian Land Reform Act

that Congress has the opportunity to correct a number of past errors and afford Indian lands in eastern Oklahoma the same protection afforded to other Indian lands and I want to lend my support

to it.

In addition to the committee staff, I’d like to commend the efforts

of the Oklahoma tribes, the entire Oklahoma Congressional delegation, but especially to Congressman Watkins and Senator Inhofe.
2

I understand through staff that this is one of the best-developed

bills we’ve had come before the committee in the last 3 or 4 years.

So I look forward to hearing from our witnesses.

Thank you, Mr. Chairman.

[Text of H.R. 2880 follows:]
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I

107TH CONGRESS

1ST SESSION H. R. 2880

To amend laws relating to the lands of the citizens of the Muscogee (Creek),

Seminole, Cherokee, Chickasaw, and Choctaw Nations, historically referred to as the Five Civilized Tribes, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 12 (legislative day, SEPTEMBER 11), 2001

Mr. WATKINS of Oklahoma (for himself, Mr. CARSON of Oklahoma, Mr. KILDEE, and Mr. CONDIT) introduced the following bill; which was referred

to the Committee on Resources

A BILL

To amend laws relating to the lands of the citizens of the

Muscogee (Creek), Seminole, Cherokee, Chickasaw, and

Choctaw Nations, historically referred to as the Five

Civilized Tribes, and for other purposes.

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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Five Nations Citizens Land Reform Act’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:

Sec. 1. Short title; table of contents.
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Sec. 2. Findings.

Sec. 3. Purpose.

Sec. 4. Definitions.

TITLE I—RESTRICTIONS; REMOVAL OF RESTRICTIONS

Sec. 101. Restrictions on real property.

Sec. 102. Reinvestment of proceeds from condemnation or conveyance of restricted property.

Sec. 103. Restricted funds.

Sec. 104. Period of restrictions.

Sec. 105. Removal of restrictions.

Sec. 106. Exemptions from prior claims.

Sec. 107. Fractional interests.

TITLE II—ADMINISTRATIVE APPROVAL OF CONVEYANCES, PARTITIONS, LEASES, AND MORTGAGES; MANAGEMENT OF MINERAL

INTERESTS

Sec. 201. Approval authority for conveyances and leases.

Sec. 202. Approval of conveyances.

Sec. 203. Reimposition of restrictions on conveyances of property to Indian

housing authorities.

Sec. 204. Administrative partition.

Sec. 205. Surface leases.

Sec. 206. Mineral leases.

Sec. 207. Management of mineral interests.

Sec. 208. Mortgages.

TITLE III—PROBATE, HEIRSHIP DETERMINATION, AND OTHER

JUDICIAL PROCEEDINGS

Sec. 301. Actions affecting restricted property.

Sec. 302. Heirship determinations and probates.

Sec. 303. Actions to cure title defects.

Sec. 304. Involuntary partitions.

Sec. 305. Requirements for actions to cure title defects and involuntary partitions.

Sec. 306. Pending State proceedings.

TITLE IV—MISCELLANEOUS

Sec. 401. Regulations.

Sec. 402. Validation of certain transactions; savings clause.

Sec. 403. Repeals.

Sec. 404. Secretarial trust responsibility.

Sec. 405. Representation by attorneys for the Department of the Interior.

Sec. 406. Filing requirements; constructive notice.

1 SEC. 2. FINDINGS.

2 Congress makes the following findings:

3 (1) Since 1970, Federal Indian policy has fo4 cused on Indian self-determination and economic
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1 self-sufficiency. The exercise of Federal instrumen2 tality jurisdiction by the Oklahoma State courts over

3 the Indian property that is subject to Federal re4 strictions against alienation belonging to members of

5 the Five Nations is inconsistent with that policy.

6 (2) It is a goal of Congress to recognize the In7 dian land base as an integral part of the culture and

8 heritage of Indian citizens.

9 (3) The exercise of Federal instrumentality ju10 risdiction by the courts of the State of Oklahoma

11 over conveyances and inheritance of restricted prop12 erty belonging to Indian citizens of the Five

13 Nations—

14 (A) is costly, confusing, and cumbersome,

15 and effectively prevents any meaningful Indian

16 estate planning, and unduly complicates the

17 probating of Indian estates and other legal pro18 ceedings relating to Indian citizens and their

19 lands; and

20 (B) has impeded the self-determination

21 and economic self-sufficiency of Indian citizens

22 within the exterior boundaries of the Five Na23 tions.

24 SEC. 3. PURPOSE.

25 (a) IN GENERAL.—It is the purpose of this Act to—
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1 (1) correct the disparate Federal treatment of

2 individual allotted lands of Indian citizens of the

3 Five Nations that resulted from prior Federal legis4 lation by equalizing the Federal legislative treatment

5 of restricted and trust lands;

6 (2) eliminate unnecessary legal and bureau7 cratic obstacles that impede the highest and best use

8 of restricted property belonging to Indian citizens of

9 the Five Nations;

10 (3) provide for an efficient process for the ad11 ministrative review and approval of conveyances, vol12 untary partitions, and leases, and to provide for

13 Federal administrative proceedings in testate and in14 testate probate and other cases that involve the re15 stricted property of Indian citizens, which concern

16 the rights of Indian citizens to hold and acquire

17 such property in restricted and trust status; and

18 (4) transfer to the Secretary the Federal instru19 mentality jurisdiction of the Oklahoma State courts

20 together with other authority currently exercised by

21 such courts over the conveyance, devise, inheritance,

22 lease, encumbrance, and partition under certain cir23 cumstances of restricted property belonging to In24 dian citizens of the Five Nations.
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1 (b) RULE OF CONSTRUCTION.—Nothing in this Act

2 shall be construed to limit or affect the rights of Indian

3 citizens under other Federal laws relating to the acquisi4 tion and status of trust property, including without limita5 tion, the Act of June 18, 1934 (25 U.S.C. 461 et seq.)

6 (commonly known as the Indian Reorganization Act), the

7 Act of June 26, 1936 (25 U.S.C. 501 et seq.) (commonly

8 known as the Oklahoma Indian Welfare Act), the Indian

9 Land Consolidation Act (25 U.S.C. 2201 et seq.), and reg10 ulations relating to the Secretary’s authority to acquire

11 lands in trust for Indians and Indian tribes.

12 SEC. 4. DEFINITIONS.

13 In this Act:

14 (1) FIVE NATIONS.—The term ‘‘Five Nations’’

15 means the Cherokee Nation, the Chickasaw Nation,

16 the Choctaw Nation of Oklahoma, the Seminole Na17 tion of Oklahoma, and the Muscogee (Creek) Nation,

18 collectively, which are historically referred to as the

19 ‘‘Five Civilized Tribes’’.

20 (2) INDIAN CITIZEN.—The term ‘‘Indian citi21 zen’’ means a member or citizen of one of the indi22 vidual Five Nations referred to in paragraph (1), or

23 an individual who is a lineal descendant by blood of

24 an Indian ancestor enrolled on the final Indian rolls

25 of the Five Civilized Tribes closed in 1906.
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1 (3) INDIAN COUNTRY.—The term ‘‘Indian coun2 try’’ has the meaning given that term in section

3 1151 of title 18, United States Code, which includes

4 restricted property and trust property (as such

5 terms are defined in this Act).

6 (4) INDIAN NATION.—The term ‘‘Indian Na7 tion’’ means one of the individual Five Nations re8 ferred to in paragraph (1).

9 (5) REGIONAL OFFICE.—The term ‘‘Regional

10 Office’’ means the Eastern Oklahoma Regional Of11 fice of the Bureau of Indian Affairs, or any succes12 sor office within the Department of the Interior.

13 (6) RESTRICTED PROPERTY.—The term ‘‘re14 stricted property’’ means any right, title, or interest

15 in real property owned by an Indian citizen that is

16 subject to a restriction against alienation, convey17 ance, lease, mortgage, creation of liens, or other en18 cumbrances imposed by this Act and other laws of

19 the United States expressly applicable to the prop20 erty of enrollees and lineal descendants of enrollees

21 on the final Indian rolls of the Five Civilized Tribes

22 in 1906, and includes, without limitation, those in23 terests in property that were subject to a restriction

24 against alienation imposed by the United States on

25 the ownership of an Indian citizen who died prior to
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1 the effective date of this Act but whose interest had

2 not, as of the effective date of this Act—

3 (A) been the subject of a final order deter4 mining heirs by a State district court or a

5 United States district court;

6 (B) been conveyed by heirs by deed ap7 proved in State district court; or

8 (C) been conveyed by heirs of less than

9 one-half degree of Indian blood with or without

10 State district court approval.

11 The term restricted property shall not include In12 dian trust allotments made pursuant to the General

13 Allotment Act (25 U.S.C. 331 et seq.) or any other

14 trust property.

15 (7) SECRETARY.—The term ‘‘Secretary’’ means

16 the Secretary of the Interior or the designee of the

17 Secretary of the Interior.

18 (8) TRUST PROPERTY.—The term ‘‘trust prop19 erty’’ means Indian property, title to which is held

20 in trust by the United States for the benefit of an

21 Indian citizen or an Indian Nation.
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1 TITLE I—RESTRICTIONS;

2 REMOVAL OF RESTRICTIONS

3 SEC. 101. RESTRICTIONS ON REAL PROPERTY.

4 (a) APPLICATION.—Beginning on the effective date

5 of this Act, all restricted property shall be subject to re6 strictions against alienation, conveyance, lease, mortgage,

7 creation of liens, or other encumbrances, regardless of the

8 degree of Indian blood of the Indian citizen who owns such

9 property.

10 (b) CONTINUATION.—

11 (1) IN GENERAL.—The restrictions made appli12 cable under subsection (a) shall continue with re13 spect to restricted property upon the acquisition of

14 such property by an Indian citizen by inheritance,

15 devise, gift, or exchange.

16 (2) WITH WAIVER.—The restrictions made ap17 plicable under subsection (a) shall continue with re18 spect to restricted property upon the acquisition of

19 such property by an Indian citizen by election to

20 take at partition or by purchase, but only if—

21 (A) prior to the execution of the deed

22 transferring such restricted property, the In23 dian citizen who owned such property prior to

24 such election to take or purchase executes a

25 written waiver of his or her right to acquire
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1 other property in restricted status pursuant to

2 section 102; and

3 (B) such restrictions appear in the deed

4 transferring such property to the Indian citizen

5 electing to take at partition or purchasing such

6 property, together with certification on said

7 deed by the Secretary that the requirements of

8 this paragraph have been met.

9 SEC. 102. REINVESTMENT OF PROCEEDS FROM CONDEMNA10 TION OR CONVEYANCE OF RESTRICTED

11 PROPERTY.

12 (a) REQUIREMENT.—Upon the conveyance of the re13 stricted property of an Indian citizen pursuant to this Act,

14 or upon the conveyance or condemnation of such property

15 pursuant to section 3 of the Act of March 3, 1901 (25

16 U.S.C. 357) or other Federal laws generally applicable to

17 the condemnation of Indian trust or restricted property,

18 to any individual, corporation, or other entity, any pro19 ceeds from such conveyance or condemnation shall be used

20 to purchase from a willing seller other property designated

21 by such Indian citizen, and such designated property shall

22 be restricted property within the meaning of this Act if—

23 (1) such proceeds were deposited into a seg24 regated account in a trust fund under the super-
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1 vision of the Secretary at the request of the Indian

2 citizen;

3 (2) such Indian citizen provides a written re4 quest to the Secretary for payment of all or a por5 tion of such proceeds for purchase of property to be

6 held in restricted status;

7 (3) such Indian citizen has not executed a writ8 ten waiver of his or her right to acquire other prop9 erty in restricted status pursuant to section 101;

10 and

11 (4) such restrictions appear in the conveyance

12 to the Indian citizen with certification by the Sec13 retary that the requirements of this section have

14 been met.

15 (b) FAIR MARKET VALUE IN EXCESS OF PRO16 CEEDS.—If the fair market value of any property des17 ignated under subsection (a) exceeds the amount of pro18 ceeds that are derived from the conveyance or condemna19 tion involved, a specific tract of land within the property

20 shall be designated by the Indian citizen for placement in

21 restricted status. The size of the restricted tract of land

22 so designated shall be in the same proportion to the whole

23 of the property as the proceeds derived from the convey24 ance or condemnation bears to the fair market value of

25 the whole of the property. Such restrictions shall appear
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1 on the face of the deed with certification by the Secretary

2 describing that portion of the property which is subject

3 to restrictions and certifying that the requirements of this

4 section have been met.

5 SEC. 103. RESTRICTED FUNDS.

6 (a) IN GENERAL.—All funds and securities held or

7 supervised by the Secretary derived from restricted prop8 erty or individual Indian trust property on or after the

9 effective date of this Act, including proceeds from any con10 veyance or condemnation as provided for in section 102,

11 are declared to be restricted and shall remain subject to

12 the jurisdiction of the Secretary until or unless otherwise

13 provided for by Federal law.

14 (b) USE OF FUNDS.—Funds, securities, and proceeds

15 described in subsection (a) may be released or expended

16 by the Secretary for the use and benefit of the Indian citi17 zens to whom such funds, securities, and proceeds belong,

18 as provided for by Federal law.

19 SEC. 104. PERIOD OF RESTRICTIONS.

20 Subject to the provisions of this Act that permit re21 strictions to be removed, the period of restriction against

22 alienation, conveyance, lease, mortgage, creation of liens,

23 or other encumbrances of restricted property and funds

24 belonging to Indian citizens, is hereby extended until an

25 Act of Congress determines otherwise.
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1 SEC. 105. REMOVAL OF RESTRICTIONS.

2 (a) PROCEDURE.—

3 (1) APPLICATION.—An Indian citizen who owns

4 restricted property, or the legal guardian of a minor

5 Indian citizen or an Indian citizen who has been de6 termined to be legally incompetent by a court of

7 competent jurisdiction (including a tribal court),

8 may apply to the Secretary for an order removing

9 restrictions on any interest in restricted property

10 held by such Indian citizen.

11 (2) CONSIDERATION OF APPLICATION.—An ap12 plication under paragraph (1) shall be considered by

13 the Secretary only as to the tract, tracts, or severed

14 mineral or surface interest described in the applica15 tion. Not later than 90 days after the date on which

16 an application is submitted, the Secretary shall ei17 ther issue the removal order or disapprove the appli18 cation.

19 (3) DISAPPROVAL.—The Secretary shall dis20 approve an application under paragraph (1) if—

21 (A) in the Secretary’s judgment, the appli22 cant has been subjected to fraud, undue influ23 ence, or duress by a third party; or

24 (B) the Secretary determines it is other25 wise not in the Indian citizen owner’s best in26 terest.
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1 (b) REMOVAL OF RESTRICTIONS.—When an order to

2 remove restrictions becomes effective under subsection (a),

3 the Secretary shall issue a certificate describing the prop4 erty and stating that the Federal restrictions have been

5 removed.

6 (c) SUBMISSION OF LIST.—Prior to or on April 1 of

7 each year, the Secretary shall cause to be filed with the

8 county treasurer of each county in the State of Oklahoma

9 where restricted property is situated, a list of restricted

10 property that has lost its restricted status during the pre11 ceding calendar year through acquisition of ownership by

12 an individual or entity who is not an Indian citizen or by

13 removal of restrictions pursuant to this section.

14 (d) RULE OF CONSTRUCTION.—Nothing in this sec15 tion shall be construed to—

16 (1) abrogate valid existing rights to property

17 that is subject to an order to remove restrictions

18 under this section; and

19 (2) remove restrictions on any other restricted

20 property owned by the applicant.

21 SEC. 106. EXEMPTIONS FROM PRIOR CLAIMS.

22 Sections 4 and 5 of the Act of May 27, 1908 (35

23 Stat. 312, chapter 199), shall apply to all restricted prop24 erty.
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1 SEC. 107. FRACTIONAL INTERESTS.

2 Upon application by an Indian citizen owner of an

3 undivided unrestricted interest in property of which a por4 tion of the interests in such property is restricted as of

5 the effective date of this Act, the Secretary is authorized

6 to convert that unrestricted interest into restricted status

7 if all of the interests in the property are owned by Indian

8 citizens as tenants in common as of the date of the appli9 cation under this section.

10 TITLE II—ADMINISTRATIVE AP11 PROVAL OF CONVEYANCES,

12 PARTITIONS, LEASES, AND

13 MORTGAGES; MANAGEMENT

14 OF MINERAL INTERESTS

15 SEC. 201. APPROVAL AUTHORITY FOR CONVEYANCES AND

16 LEASES.

17 The Secretary shall have exclusive jurisdiction to ap18 prove conveyances and leases of restricted property by an

19 Indian citizen or by any guardian or conservator of any

20 Indian citizen who is a ward in any guardianship or con21 servatorship proceeding pending in any court of competent

22 jurisdiction, except that petitions for such approvals that

23 are filed in Oklahoma district courts prior to the effective

24 date of this Act may be heard and approved by such courts

25 pursuant to the procedures described in section 1 of the

26 Act of August 4, 1947 (61 Stat. 731, chapter 458), as
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1 in effect on the day before the effective date of this Act,

2 if the Indian citizen does not revoke in writing his or her

3 consent to the conveyance or lease prior to final court ap4 proval.

5 SEC. 202. APPROVAL OF CONVEYANCES.

6 (a) PROCEDURE.—

7 (1) IN GENERAL.—Except as provided in sub8 section (b), restricted property may be conveyed by

9 an Indian citizen pursuant to the procedures de10 scribed in this subsection.

11 (2) REQUIREMENTS.—An Indian citizen may

12 only convey restricted property—

13 (A) after the property is appraised by the

14 Secretary;

15 (B) for an amount that is not less than 90

16 percent of the appraised value of the property;

17 (C) to the highest bidder through the sub18 mission to the Secretary of closed, silent bids or

19 negotiated bids; and

20 (D) upon the approval of the Secretary.

21 (b) EXCEPTION.—

22 (1) IN GENERAL.—Notwithstanding subsection

23 (a)(2), an Indian citizen may convey his or her re24 stricted property, or any portion thereof, to any of

25 the individuals or entities described in paragraph (2)
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1 without soliciting bids, providing notice, or for con2 sideration which is less than the appraised value of

3 the property, if the Secretary determines that the

4 conveyance is not contrary to the best interests of

5 the Indian citizen and that the Indian citizen has

6 been duly informed of and understands the fair mar7 ket appraisal, and is not being coerced into the con8 veyance.

9 (2) INDIVIDUALS AND ENTITIES.—An individ10 ual or entity described in this paragraph is—

11 (A) the Indian citizen’s spouse (if he or

12 she is an Indian citizen), father, mother, son,

13 daughter, brother or sister, or other lineal de14 scendant, aunt or uncle, cousin, niece or neph15 ew, or Indian co-owner; or

16 (B) the Indian Nation whose last treaty

17 boundaries encompassed the restricted property

18 involved so long as the appraisal of the property

19 was conducted by an independent appraiser not

20 subject to the Indian Nation’s control.

21 (c) STATUS.—Restricted property that is acquired by

22 an Indian Nation whose last treaty boundaries encom23 passed the restricted property shall continue to be Indian

24 country. Upon application by the Indian Nation, the Sec25 retary shall accept title to such property in trust by the
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1 United States for the benefit of the Indian Nation, except

2 that the Secretary may first require elimination of any ex3 isting liens or other encumbrances in order to comply with

4 applicable Federal title standards. The Secretary shall ac5 cept title to the property in trust for the Indian Nation

6 only if, after conducting a survey for hazardous sub7 stances, he determines that there is no evidence of such

8 substances on the property.

9 SEC. 203. REIMPOSITION OF RESTRICTIONS ON CONVEY10 ANCES OF PROPERTY TO INDIAN HOUSING

11 AUTHORITIES.

12 (a) IN GENERAL.—In any case where the restrictions

13 have been removed from restricted property for the pur14 pose of allowing conveyances of the property to Indian

15 housing authorities to enable such authorities to build

16 homes for individual owners or relatives of owners of re17 stricted property, the Secretary shall issue a Certificate

18 of Restricted Status describing the property and imposing

19 restrictions thereon upon written request by the Indian

20 citizen homebuyer or a successor Indian citizen home21 buyer. Such request shall include evidence satisfactory to

22 the Secretary that the homebuyer’s contract has been paid

23 in full and be delivered to the Regional Office not later

24 than 3 years after the housing authority conveys such

25 property back to the original Indian citizen homebuyer or
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1 a successor Indian citizen homebuyer who is a citizen of

2 the Nation whose last treaty boundaries encompass the

3 property where the home is located.

4 (b) EXISTING LIENS.—Prior to issuing a certificate

5 under subsection (a) with respect to property, the Sec6 retary may require the elimination of any existing liens

7 or other encumbrances which would substantially interfere

8 with the use of the property.

9 (c) APPLICATION TO CERTAIN HOMEBUYERS.—In10 dian citizen homebuyers described in subsection (a) who

11 acquired ownership of property prior to the effective date

12 of this Act shall have 3 years from such effective date to

13 request that the Secretary issue a certificate under such

14 subsection.

15 (d) RULE OF CONSTRUCTION.—Nothing in this Act

16 shall be construed to limit or affect the rights of Indian

17 citizens described in this section under other Federal laws

18 and regulations relating to the acquisition and status of

19 trust property.

20 SEC. 204. ADMINISTRATIVE PARTITION.

21 (a) JURISDICTION.—Except as provided in section

22 304, the Secretary shall have exclusive jurisdiction to ap23 prove the partition of property located within the last trea24 ty boundaries of 1 or more of the Five Nations, all of

25 which is held in common, in trust, or in restricted status,
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1 by more than 1 Indian citizen owner, if the requirements

2 of this section are complied with. The Secretary may ap3 prove the voluntary partition of property consisting of

4 both restricted and unrestricted undivided interests if all

5 owners of the unrestricted interests consent to such ap6 proval in writing.

7 (b) PARTITION WITHOUT APPLICATION.—If the Sec8 retary determines that any property described in sub9 section (a) is capable of partition in kind to the advantage

10 of the owners, the Secretary may initiate partition of the

11 property by—

12 (1) notifying the owners of such determination;

13 (2) providing the owners with a partition plan

14 for such property; and

15 (3) affording the owners a reasonable time to

16 respond, object, or consent to the proposal, in ac17 cordance with subsection (d).

18 (c) APPLICATION FOR PARTITION.—

19 (1) IN GENERAL.—An owner or owners of an

20 undivided interest in any property described in sub21 section (a) may make written application, on a form

22 approved by the Secretary, for the partition of their

23 trust or restricted property.

24 (2) DETERMINATION.—If, based on an applica25 tion submitted under paragraph (1), the Secretary
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1 determines that the property involved is susceptible

2 to partition in kind, the Secretary shall initiate par3 tition of the property by—

4 (A) notifying the owners of such deter5 mination;

6 (B) providing the owners with a partition

7 plan; and

8 (C) affording the owners a reasonable time

9 to respond, object, or consent in accordance

10 with subsection (d).

11 (d) PARTITION PROCEDURES.—

12 (1) PROPOSED LAND DIVISION PLAN.—The Sec13 retary shall give applicants under subsection (c) and

14 nonpetitioning owners of property subject to parti15 tion under this section with a reasonable opportunity

16 to negotiate a proposed land division plan for the

17 purpose of securing ownership of a tract on the

18 property equivalent to their respective interests in

19 the undivided estate, prior to taking any action re20 lated to partition of the property under this section.

21 (2) APPROVAL.—If a plan under paragraph (1)

22 is approved by—

23 (A) Indian citizen owners of more than 50

24 percent of the property which is entirely in

25 trust status (as distinguished from restricted
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1 status) and if the Secretary finds the plan to

2 be reasonable, fair, and equitable, the Secretary

3 shall issue an order partitioning the trust prop4 erty in kind; or

5 (B) the Indian citizens who own more than

6 50 percent of the undivided interests which are

7 held in restricted status (as distinguished from

8 trust status) and if the Secretary finds the plan

9 to be reasonable, fair, and equitable, the Sec10 retary may attempt to negotiate for partition in

11 kind or for sale of all or a portion of the prop12 erty, and secure deeds from all interest owners,

13 subject to the Secretary’s approval.

14 (3) LIMITATION.—No partition under para15 graph (2)(B) shall be effected unless all of the own16 ers have consented to the plan in writing.

17 SEC. 205. SURFACE LEASES.

18 The surface of restricted property may be leased by

19 an Indian citizen pursuant to the Act of August 9, 1955

20 (25 U.S.C. 415 et seq.), except that the Secretary may

21 approve any agricultural lease or permit with respect to

22 restricted property in accordance with the provisions of

23 section 105 of the American Indian Agricultural Resource

24 Management Act (25 U.S.C. 3715).
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1 SEC. 206. MINERAL LEASES.

2 (a) APPROVAL.—

3 (1) GENERAL RULE.—No mineral lease or

4 agreement purporting to convey or create any inter5 est in restricted or trust property that is entered

6 into or renewed after the effective date of this Act

7 shall be valid unless approved by the Secretary.

8 (2) REQUIREMENTS.—The Secretary may ap9 prove a mineral lease or agreement described in

10 paragraph (1) only if—

11 (A) the owners of a majority of the undi12 vided interest in the restricted or trust mineral

13 estate that is the subject of the mineral lease

14 or agreement (including any interest covered by

15 a lease or agreement executed by the Secretary

16 under subsection (c)) consent to the lease or

17 agreement;

18 (B) the Secretary determines that approv19 ing the lease or agreement is in the best inter20 est of the Indian citizen owners of the restricted

21 or trust mineral interests; and

22 (C) the Secretary has accepted the highest

23 bid for such lease or agreement after a competi24 tive bidding process has been conducted by the

25 Secretary, unless the Secretary has determined

26 that it is in the best interest of the Indian citi-
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•HR 2880 IH

1 zen to award a lease made by negotiation, and

2 the Indian citizen so consents.

3 (b) EFFECT OF APPROVAL.—Upon the approval of

4 a mineral lease or agreement by the Secretary under sub5 section (a), the lease or agreement shall be binding upon

6 all owners of the restricted or trust undivided interests

7 subject to the lease or agreement (including any interest

8 owned by an Indian tribe) and all other parties to the lease

9 or agreement, to the same extent as if all of the Indian

10 citizen owners of the restricted or trust mineral interests

11 involved had consented to the lease or agreement.

12 (c) EXECUTION OF LEASE OR AGREEMENT BY SEC13 RETARY.—The Secretary may execute a mineral lease or

14 agreement that affects restricted or trust property inter15 ests on behalf of an Indian citizen owner if that owner

16 is deceased and the heirs to, or devisees of, the interest

17 of the deceased owner have not been determined, or if the

18 heirs or devisees have been determined but one or more

19 of the heirs or devisees cannot be located.

20 (d) DISTRIBUTION OF PROCEEDS.—The proceeds de21 rived from a mineral lease or agreement approved by the

22 Secretary under subsection (a) shall be distributed in ac23 cordance with the interest held by each owner pursuant

24 to such rules and regulations as may be promulgated by

25 the Secretary.
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1 (e) COMMUNITIZATION AGREEMENTS.—No unleased

2 restricted or trust property located within a spacing and

3 drilling unit approved by the Oklahoma Corporation Com4 mission may be drained of any oil or gas by a well within

5 such unit without a communitization agreement prepared

6 and approved by the Secretary, except that in the event

7 of any such drainage without a communitization agree8 ment approved by the Secretary, 100 percent of all reve9 nues derived from the production from any such restricted

10 or trust property shall be paid to the Indian citizen owner

11 free of all lifting and other production costs.

12 SEC. 207. MANAGEMENT OF MINERAL INTERESTS.

13 (a) OIL AND GAS CONSERVATION LAWS.—

14 (1) IN GENERAL.—The oil and gas conservation

15 laws of the State of Oklahoma shall apply to re16 stricted property.

17 (2) ENFORCEMENT.—The Oklahoma Corpora18 tion Commission shall have the authority to perform

19 ministerial functions related to the enforcement of

20 the laws referred to in paragraph (1), including en21 forcement actions against well operators, except that

22 no order of the Corporation Commission affecting

23 restricted Indian property shall be valid as to such

24 property until such order is submitted to and ap25 proved by the Secretary.
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1 (3) RULE OF CONSTRUCTION.—Nothing in this

2 subsection shall be construed to limit the authority

3 of the Indian Nations to protect the environment

4 and natural resources of restricted property.

5 (b) IMPLEMENTATION OF FEDERAL OIL AND GAS

6 ROYALTY MANAGEMENT ACT.—Beginning on the effective

7 date of this Act, the Secretary shall exercise all the duties

8 and responsibilities of the Secretary under the Federal Oil

9 and Gas Royalty Management Act of 1982 (30 U.S.C.

10 1702 et seq.) with respect to an oil and gas lease where—

11 (1) the Secretary has approved the oil and gas

12 lease pursuant to section 206(a);

13 (2) the Secretary has, prior to the effective date

14 of this Act, approved the oil and gas lease pursuant

15 to the Act of May 27, 1908 (35 Stat. 312, chapter

16 199); or

17 (3) the Secretary has, before the effective date

18 of this Act, approved an oil and gas lease of lands

19 of any of the Five Nations pursuant to the Act of

20 May 11, 1938 (25 U.S.C. 396a et seq.).

21 SEC. 208. MORTGAGES.

22 An Indian citizen may mortgage restricted property

23 only in accordance with and under the authority of the

24 Act of March 29, 1956 (25 U.S.C. 483a), or other Federal
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1 laws applicable to the mortgaging of individual Indian

2 trust property or restricted property.

3 TITLE III—PROBATE, HEIRSHIP

4 DETERMINATION, AND OTHER

5 JUDICIAL PROCEEDINGS

6 SEC. 301. ACTIONS AFFECTING RESTRICTED PROPERTY.

7 The courts of the State of Oklahoma shall not have

8 jurisdiction over actions affecting title to, or use or dis9 position of, trust property or restricted property except as

10 authorized by this Act or by other Federal laws applicable

11 to trust property or restricted property.

12 SEC. 302. HEIRSHIP DETERMINATIONS AND PROBATES.

13 (a) JURISDICTION.—Except as provided in section

14 306, the Secretary shall have exclusive jurisdiction, acting

15 through an administrative law judge or other official des16 ignated by the Secretary, to probate wills or otherwise de17 termine heirs of deceased Indian citizens and to adjudicate

18 all such estate actions to the extent that they involve indi19 vidual trust property, restricted property, or restricted or

20 trust funds or securities held or supervised by the Sec21 retary derived from such property.

22 (b) GOVERNING LAWS.—Notwithstanding any other

23 provision of law, the administrative law judge or other offi24 cial designated by the Secretary shall exercise the Sec25 retary’s jurisdiction and authority under this section in
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•HR 2880 IH

1 accordance with the Indian Land Consolidation Act (25

2 U.S.C. 2201 et seq.) and such rules and regulations which

3 heretofore have been, or will be, prescribed by the Sec4 retary for the probate of wills, determination of heirs, and

5 distribution of property in estates of Indian decedents,

6 subject to the following requirements:

7 (1) LAW APPLICABLE TO ESTATES OF INDIAN

8 CITIZEN DECEDENTS WHO DIED PRIOR TO EFFEC9 TIVE DATE.—The administrative law judge or other

10 official designated by the Secretary shall apply the

11 laws of descent and distribution of the State of

12 Oklahoma contained in title 84 of the Oklahoma

13 Statutes, chapter 4, to all restricted property, trust

14 property, and all restricted or trust funds or securi15 ties derived from such property in the estates of de16 ceased Indian citizens who died intestate prior to the

17 effective date of this Act.

18 (2) LAW APPLICABLE TO WILLS EXECUTED

19 PRIOR TO EFFECTIVE DATE.—The administrative

20 law judge or other official designated by the Sec21 retary shall determine the validity and effect of wills

22 as to estates containing trust property or restricted

23 property when such wills were executed by Indian

24 citizens prior to the effective date of this Act, in ac25 cordance with the laws of the State of Oklahoma
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1 governing the validity and effect of wills, provided

2 that the will of a full-blood Indian citizen which dis3 inherits the parent, wife, spouse, or children of such

4 citizen shall not be valid with respect to the disposi5 tion of restricted property unless the requirements of

6 section 23 of the Act of April 26, 1906 (34 Stat.

7 137, chapter 1876), as in effect on the day before

8 the effective date of this Act, are met.

9 (3) LAW APPLICABLE TO WILLS EXECUTED

10 AFTER EFFECTIVE DATE.—

11 (A) IN GENERAL.—Any Indian citizen who

12 has attained age 18 and owns restricted prop13 erty or trust property shall have the right to

14 dispose of such property by will, executed on or

15 after the effective date of this Act in accordance

16 with regulations which heretofore have been, or

17 will be, prescribed by the Secretary for the pro18 bate of wills, provided—

19 (i) no will so executed shall be valid or

20 have any force or effect unless and until

21 such will has been approved by the Sec22 retary; and

23 (ii) that the Secretary may approve or

24 disapprove such will either before or after

25 the death of the Indian citizen testator.
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1 (B) FRAUD.—In any case where a will has

2 been approved by the Secretary under subpara3 graph (A) and it is subsequently discovered that

4 there was fraud in connection with the execu5 tion or procurement of the will, the Secretary is

6 authorized, within 1 year after the death of the

7 testator, to cancel approval of the will. If an ap8 proval is canceled in accordance with the pre9 ceding sentence, the property purported to be

10 disposed of in the will shall descend or be dis11 tributed in accordance with the Secretary’s

12 rules and regulations applicable to estates of

13 Indian decedents who die intestate.

14 (4) FEDERAL LAW CONTROLS.—Notwithstand15 ing any other provision of this section, Federal law

16 governing personal claims against a deceased Indian

17 citizen or against trust property or restricted prop18 erty, including the restrictions imposed by this Act

19 or other applicable Federal law against the alien20 ation, conveyance, lease, mortgage, creation of liens,

21 or other encumbrances of trust property or re22 stricted property shall apply to all such property

23 contained in the estate of the deceased Indian citi24 zen.
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1 SEC. 303. ACTIONS TO CURE TITLE DEFECTS.

2 (a) JURISDICTION.—Except as provided in sub3 sections (b) and (c), the United States district courts in

4 the State of Oklahoma and the State courts of Oklahoma

5 shall retain jurisdiction over actions seeking to cure de6 fects affecting the marketability of title to restricted prop7 erty, except that all such actions shall be subject to the

8 requirements of section 305.

9 (b) ADVERSE POSSESSION.—No cause of action may

10 be brought to claim title to or an interest in restricted

11 property by adverse possession or the doctrine of laches

12 on or after the effective date of this Act, except that—

13 (1) all such causes that are pending on the ef14 fective date of this Act in accordance with the provi15 sions of section 3 of the Act of April 12, 1926 (44

16 Stat. 239, chapter 115), shall be subject to section

17 306; and

18 (2) an action to quiet title to an interest in re19 stricted property on the basis of adverse possession

20 may be filed in the courts of the State of Oklahoma

21 provided that all requirements of Oklahoma law for

22 acquiring title by adverse possession, including the

23 running of the full 15-year limitations period, have

24 been met prior to the effective date of this Act and

25 the procedures set forth in section 305 shall be fol26 lowed; provided, however, the claimant in any such
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1 action must show by clear and convincing evidence

2 that the limitations period had run in full prior to

3 the effective date of this Act.

4 (c) HEIRSHIP DETERMINATIONS AND DISPOSI5 TIONS.—Nothing in this section shall be construed to au6 thorize a determination of heirs in a quiet title action in

7 Federal or State court in derogation of the Secretary’s ex8 clusive jurisdiction to probate wills or otherwise determine

9 heirs of the deceased Indian citizens owning restricted

10 property and to adjudicate all such estate actions involving

11 restricted property pursuant to section 302, or in deroga12 tion of the Secretary’s exclusive jurisdiction over the dis13 position of restricted property under this Act. Provided,

14 any grantee of an heir who, prior to the effective date of

15 this Act and in accordance with applicable Federal laws,

16 conveyed, leased, or otherwise encumbered his or her inter17 est in the restricted property of an unprobated estate of

18 an Indian citizen decedent shall have standing to request

19 that the Secretary determine the heirs of the decedent in

20 order to establish marketable title in said grantee. For

21 purposes of this subsection the term grantee shall include

22 any grantee, lessee, or mortgagee of such heir and any

23 successors or assigns of such grantee.
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•HR 2880 IH

1 SEC. 304. INVOLUNTARY PARTITIONS.

2 (a) JURISDICTION.—The United States district

3 courts in the State of Oklahoma and the State courts of

4 Oklahoma shall retain jurisdiction over actions for the in5 voluntary partition of property consisting entirely or par6 tially of undivided restricted interests, subject to the provi7 sions of subsections (b) through (e) and the requirements

8 in section 306.

9 (b) APPLICABLE LAW.—The laws of the State of

10 Oklahoma governing the partition of property shall be ap11 plicable to all actions for involuntary partition under this

12 section, except to the extent that any such laws are in

13 conflict with any provisions of this Act.

14 (c) PETITION; CONSENT OF OWNERS OF MAJORITY

15 OF UNDIVIDED INTERESTS.—Any person who owns an

16 undivided interest in a tract of property described in sub17 section (a) may file an action in the district court of the

18 State of Oklahoma for the county wherein the tract is lo19 cated for the involuntary partition of such tract. The court

20 shall not grant the petition unless the owner or owners

21 of more than 50 percent of the tract consent to the parti22 tion in the verified petition or verified answer filed in the

23 action.

24 (d) PAYMENT TO NONCONSENTING OWNERS OF RE25 STRICTED INTERESTS.—Nonconsenting owners of undi-
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•HR 2880 IH

1 vided restricted interests shall receive for the sale of such

2 interests their proportionate share of the greater of—

3 (1) the proceeds paid at the partition sale; or

4 (2) an amount equal to 100 percent of the ap5 praised value of the tract.

6 (e) COSTS.—A nonconsenting Indian citizen owner of

7 restricted interests shall not be liable for any filing fees

8 or costs of an action under this section, including the cost

9 of an appraisal, advertisement, and sale, and no such costs

10 shall be charged against such nonconsenting owner’s share

11 of the proceeds of sale.

12 SEC. 305. REQUIREMENTS FOR ACTIONS TO CURE TITLE

13 DEFECTS AND INVOLUNTARY PARTITIONS.

14 (a) IN GENERAL.—All actions authorized by sections

15 303 and 304 shall be conducted in accordance with the

16 requirements and procedures described in this section.

17 (b) PARTIES.—

18 (1) UNITED STATES.—The United States shall

19 not be a necessary and indispensable party to an ac20 tion authorized under section 303 or 304. The Sec21 retary may participate as a party in any such action.

22 (2) PARTICIPATION OF SECRETARY.—If the

23 Secretary elects to participate in an action as pro24 vided for under paragraph (1), the responsive plead25 ing of the Secretary shall be made not later than 20
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1 days after the Secretary receives the notice required

2 under subsection (c), or within such extended time

3 as the trial court in its discretion may permit.

4 (3) JUDGMENT BINDING.—After the appear5 ance of the Secretary in any action described in

6 paragraph (1), or after the expiration of the time in

7 which the Secretary is authorized to respond under

8 paragraph (2), the proceedings and judgment in

9 such action shall be binding on the United States

10 and the parties upon whom service has been made

11 and shall affect the title to the restricted property

12 which is the subject of the action, in the same man13 ner and extent as though nonrestricted property

14 were involved.

15 (4) RULE OF CONSTRUCTION.—Nothing in this

16 section shall be construed to waive the requirement

17 of service of summons in accordance with applicable

18 Federal or State law upon the individual Indian citi19 zen landowners, who shall be necessary and indis20 pensable parties to all actions authorized by sections

21 303 and 304.

22 (c) NOTICE.—

23 (1) IN GENERAL.—The plaintiff in any action

24 authorized by sections 303 and 304 shall serve writ25 ten notice of the filing of such action and of a peti-
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1 tion or complaint, or any amended petition or com2 plaint which substantially changes the nature of the

3 action or includes a new cause of action, upon the

4 Director of the Regional Office not later than 10

5 days after the filing of any such petition or com6 plaint or any such amended petition or complaint.

7 (2) FILING WITH CLERK.—A duplicate original

8 of any notice served under paragraph (1) shall be

9 filed with the clerk of the court in which the action

10 is pending.

11 (3) REQUIREMENTS.—The notice required

12 under paragraph (1) shall—

13 (A) be accompanied by a certified copy of

14 all pleadings on file in the action at the time of

15 the filing of the duplicate original notice with

16 the clerk under paragraph (2);

17 (B) be signed by the plaintiff to the action

18 or his or her counsel of record; and

19 (C) be served by certified mail, return re20 ceipt requested, and due return of service made

21 thereon, showing date of receipt and service of

22 notice.

23 (4) FAILURE TO SERVE.—If the notice required

24 under paragraph (1) is not served within the time

25 required under such paragraph, or if return of serv-
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1 ice thereof is not made within the time permitted by

2 law for the return of service of summons, alias no3 tices may be provided until service and return of no4 tice is made, except that in the event that service of

5 the notice required under such paragraph is not

6 made within 60 days following the filing of the peti7 tion or complaint or amendments thereof, the action

8 shall be dismissed without prejudice.

9 (5) LIMITATION.—In no event shall the United

10 States or the parties named in a notice filed under

11 paragraph (1) be bound, or title to the restricted

12 property be affected, unless written notice is served

13 upon the Director as required under this subsection.

14 (d) REMOVAL.—

15 (1) IN GENERAL.—The United States shall

16 have the right to remove any action to which this

17 section applies that is pending in a State court to

18 the United States district court by filing with the

19 State court, not later than 20 days after the service

20 of any notice with respect to such action under sub21 section (c), or within such extended period of time

22 as the trial court in its discretion may permit, a no23 tice of the removal of such action to such United

24 States district court, together with the certified copy
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1 of the pleadings in such action as served on the Di2 rector of the Regional Office under subsection (c).

3 (2) DUTY OF STATE COURT.—It shall be the

4 duty of a State court to accept a notice filed under

5 paragraph (1) and cease all proceedings with respect

6 to such action.

7 (3) PLEADINGS.—Not later than 20 days after

8 the filing of a notice under paragraph (1), the copy

9 of the pleadings involved (as provided under such

10 paragraph) shall be entered in the district court of

11 the United States and the defendants and interve12 nors in such action shall, not later than 20 days

13 after the pleadings are so entered, file a responsive

14 pleading to the complaint in such action.

15 (4) PROCEEDINGS.—Upon the submission of

16 the filings required under paragraph (3), the action

17 shall proceed in the same manner as if it had been

18 originally commenced in the district court, and its

19 judgment may be reviewed by certiorari, appeal, or

20 writ of error in like manner as if the action had

21 been originally brought in such district court.

22 SEC. 306. PENDING STATE PROCEEDINGS.

23 The courts of the State of Oklahoma shall continue

24 to exercise authority as a Federal instrumentality over all

25 heirship, probate, partition, and other actions involving re-
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1 stricted property that are pending on the effective date

2 of this Act until the issuance of a final judgment and ex3 haustion of all appeal rights in any such action, or until

4 the petitioner, personal representative, or the State court

5 dismisses the action in accordance with State law.

6 TITLE IV—MISCELLANEOUS

7 SEC. 401. REGULATIONS.

8 The Secretary may promulgate such regulations as

9 may be necessary to carry out this Act, except that failure

10 to promulgate such regulations shall not limit or delay the

11 effect of this Act.

12 SEC. 402. VALIDATION OF CERTAIN TRANSACTIONS; SAV13 INGS CLAUSE.

14 (a) VALIDATION OF CERTAIN TITLE TRANS15 ACTIONS.—Any person having the legal capacity to own

16 real property in the State of Oklahoma who claims owner17 ship of an interest in such property through an unbroken

18 chain of title of record, the title to which interest is or

19 may be defective as a result of any transaction described

20 in paragraphs (1) through (5) of this subsection that oc21 curred in such chain of title, may cure the defect in title

22 and validate the transaction by following the procedures

23 of this section. When all conditions and requirements of

24 this section have been met, and if no notice of objection

25 has been timely filed by the Regional Director under sub-
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1 section (c) or by any other person under subsection (f),

2 the transaction shall be validated and shall not be consid3 ered a defect in the muniments of title but only insofar

4 as the defect is based on or arises from Federal statutes

5 applicable to the conveyance or inheritance of restricted

6 property in effect at the time of the transaction.

7 (1) Any probate order issued by a county court

8 of the State of Oklahoma prior to the effective date

9 of the Act of June 14, 1918, 40 Stat. 606, purport10 ing to probate the estate of a deceased Indian citizen

11 who died owning property which was subject to re12 strictions against alienation pursuant to Federal

13 statutes in effect at the time of issuance of such pro14 bate order;

15 (2) Any probate order issued by a county or

16 district court of the State of Oklahoma more than

17 30 years prior to the effective date of this Act pur18 porting to probate the estate of a deceased Indian

19 citizen who died owning property which was subject

20 to restrictions against alienation pursuant to Fed21 eral law in effect at the time of issuance of such pro22 bate order, where notice was not given as required

23 by Federal statutes in effect at the time;

24 (3) Any conveyance of record, including an oil

25 and gas or mineral lease, of an interest in individual
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1 trust property or property which was subject to re2 strictions against alienation pursuant to Federal

3 statutes in effect at the time of the conveyance exe4 cuted by a person who was an heir or purported heir

5 of the decedent, if such conveyance was approved by

6 a county or district court in Oklahoma more than 30

7 years before the effective date of this Act but where

8 no judicial or administrative order of record was

9 issued before or after such approval finding that

10 such person was in fact the heir to the interest con11 veyed;

12 (4) Any conveyance of record, including an oil

13 and gas or mineral lease, of individual trust property

14 or property which was subject to restrictions against

15 alienation pursuant to Federal statutes in effect at

16 the time of the conveyance that was approved by a

17 county or district court in Oklahoma or by the Sec18 retary more than 30 years before the effective date

19 of this Act, where—

20 (A) approval was not in compliance with

21 the notice requirements of Federal statutes gov22 erning the conveyance of said individual trust

23 property or said restricted property; or

24 (B) approval was given by a county or dis25 trict court in Oklahoma of a conveyance of the
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1 property by a personal representative in a pro2 bate action over which said county or district

3 court possessed jurisdiction, without compliance

4 with Federal statutes governing the conveyance

5 of the property in effect at the time of the con6 veyance;

7 (5) Any conveyance of record, including an oil

8 and gas or mineral lease, of individual trust property

9 or property which was subject to restrictions against

10 alienation pursuant to Federal statutes in effect at

11 the time of the conveyance that was approved by a

12 county or district court in Oklahoma or by the Sec13 retary at any time before the effective date of this

14 Act, where—

15 (A) approval was given by the Secretary

16 where the Federal statutes governing the con17 veyance of the property required approval by a

18 county or district court in Oklahoma; or

19 (B) approval was given by a county or dis20 trict court in Oklahoma where the Federal stat21 utes governing the conveyance of the property

22 in effect at the time of the conveyance required

23 approval of the Secretary.

24 (b) NOTICE OF CLAIM; SERVICE AND RECORDING.—

25 Any claimant described in subsection (a) must serve writ-
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1 ten notice of his or her claim by certified mail, return re2 ceipt requested, on the Regional Director, and file the no3 tice of claim, together with a copy of the return receipt

4 showing delivery to the office of the Regional Director, in

5 the office of county clerk in the county or counties wherein

6 the property is located. The notice shall not be complete

7 for the purposes of this section until it has been served

8 on the Regional Director and filed of record as herein pro9 vided. The notice of claim shall set forth the following:

10 (1) The claimant’s name and mailing address.

11 (2) An accurate and full description of all prop12 erty affected by such notice, which description –shall

13 be set forth in particular terms and not be general

14 inclusions; but if said claim is founded upon a re15 corded instrument, then the description in such no16 tice may be the same as that contained in such re17 corded instrument.

18 (3) A specific reference to or description of each

19 title transaction in the chain of title that the claim20 ant is attempting to validate pursuant to this sec21 tion.

22 (4) A list of all documents of record that are

23 part of the claimant’s unbroken chain of title, copies

24 of which documents shall be served with the notice.
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1 (c) RESPONSE DEADLINE; EXTENSION.—The Re2 gional Director shall have 60 days from date of receipt

3 of the notice of claim in which to notify the claimant in

4 writing that the Regional Director exercises discretionary

5 authority to object to the claim for any reason; provided,

6 the Regional Director shall be entitled to an automatic ex7 tension of time of 60 days in which to object to the claim

8 upon the Regional Director’s service of written notice of

9 extension on the claimant within the initial 60-day re10 sponse period.

11 (d) NOTICE OF OBJECTION; REMEDIES.—The Re12 gional Director shall send the notice of objection and any

13 notice of extension of time to the claimant by certified mail

14 to the address set forth in the claimant’s notice to the

15 Director. The Director’s notice of objection or notice of

16 extension of time shall include a description of the prop17 erty and shall be effective on the date of mailing. The Di18 rector shall file the notice of objection or notice of exten19 sion of time in the office of the county clerk for the county

20 or counties wherein the property is located within 30 days

21 after the date of mailing of the notice to the claimant.

22 If the Regional Director notifies the claimant that the Re23 gional Director objects to the claim, such decision shall

24 be final for the Department and the claimant’s sole rem25 edies shall be to file an action to cure title defects pursu-
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1 ant to section 303 of this Act or to request a determina2 tion of heirs in accordance with section 302 of this Act.

3 (e) UNDISPUTED CLAIM.—If, in the exercise of dis4 cretion, the Regional Director does not object to the claim,

5 then the Regional Director may notify the claimant that

6 the matter is not in dispute. Failure of the Regional Direc7 tor to notify the claimant of the Regional Director’s objec8 tion within the initial 60-day period, or within the 60-day

9 extension period if notice of an extension was given, shall

10 constitute acceptance of the claim. If the Director does

11 not file an objection to the claim of record within the time

12 required by subsection (d), the title transaction described

13 in the claimant’s notice shall be deemed validated and

14 shall not be considered a defect in the muniments of the

15 claimant’s title based on or arising from Federal statutes

16 governing the conveyance of restricted property in effect

17 at the time of the transaction, provided that no written

18 notice of objection is timely filed by other parties in ac19 cordance with subsection (f) of this section.

20 (f) NOTICE OF OBJECTION BY OTHER PARTIES TO

21 APPLICABILITY OF THIS SECTION.—Any person claiming

22 ownership of an interest in property the record title to

23 which includes a title transaction described in subsection

24 (a) of this section may prevent the application of sub25 sections (a) through (e) to said interest by filing for record
47

45

•HR 2880 IH

1 in the office of the county clerk for the county or counties

2 wherein the property in question is located, no later than

3 3 years after the effective date of this Act, a written notice

4 of objection in the form of a declaration made under oath

5 setting forth the following:

6 (1) The declarant’s name and mailing address.

7 (2) An accurate and full description of all of

8 the declarant’s property interests to be affected by

9 such notice, which description shall be set forth in

10 particular terms and not be general inclusions; but

11 if said declarant’s claim to ownership is founded

12 upon a recorded instrument, then the description in

13 such notice may be the same as that contained in

14 such recorded instrument.

15 (3) A statement that the declarant claims in

16 good faith to be the owner of an interest in the

17 property described in the notice and that the declar18 ant objects to the operation of this section with re19 spect to any title transaction that would otherwise

20 be subject to validation under this section.

21 (g) INTERESTS OF HEIRS OF LESS THAN HALF22 BLOOD.—Nothing in this Act shall be construed to

23 invalidate—

24 (1) any conveyance of record, including a sur25 face, oil and gas, or mineral lease, of an interest in
48

46

•HR 2880 IH

1 property made prior to the effective date of this Act

2 by an heir of a deceased Indian citizen without dis3 trict court approval where such heir was of less than

4 one-half degree of Indian blood, even though the

5 property was held in restricted status immediately

6 prior to the decedent Indian citizen’s death; or

7 (2) any other encumbrance that attached prior

8 to the effective date of this Act to an interest in

9 property of an heir of a deceased Indian citizen

10 where such heir was of less than one-half degree of

11 Indian blood, even though the property was held in

12 restricted status immediately prior to the decedent

13 Indian citizen’s death.

14 (h) TERMS.—For purposes of this section:

15 (1) A person shall be deemed to have an unbro16 ken chain of title when the official public records, in17 cluding probate and other official public records, as

18 well as records in the county clerk’s office, disclose

19 a conveyance or other title transaction of record not

20 less than 30 years prior to the effective date of this

21 Act, which said conveyance or other title transaction

22 purports to create such interest, either in—

23 (A) the person claiming such interest; or

24 (B) some other person from whom, by 1 or

25 more conveyances or other title transactions of
49

47

•HR 2880 IH

1 record, such purported interest has become

2 vested in the person claiming such interest;

3 with nothing appearing of record, in either case,

4 purporting to divest such claimant of such pur5 ported interest.

6 (2) The term recording, when applied to the of7 ficial public records of any officer or court, includes

8 filing with the officer or court.

9 SEC. 403. REPEALS.

10 (a) IN GENERAL.—The following provisions are re11 pealed:

12 (1) The Act of August 11, 1955 (69 Stat. 666,

13 chapter 786).

14 (2) Section 2 of the Act of August 12, 1953

15 (67 Stat. 558, chapter 409).

16 (3) Sections 1 through 5 and 7 through 13 of

17 the Act of August 4, 1947 (61 Stat. 731, chapter

18 458).

19 (4) The Act of February 11, 1936 (25 U.S.C.

20 393a).

21 (5) The Act of January 27, 1933 (47 Stat. 777,

22 chapter 23).

23 (6) Sections 1, 2, 4, and 5 of the Act of May

24 10, 1928 (45 Stat. 495, chapter 517).
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•HR 2880 IH

1 (7) The Act of April 12, 1926 (44 Stat. 239,

2 chapter 115).

3 (8) Sections 1 and 2 of the Act of June 14,

4 1918 (25 U.S.C. 375 and 355).

5 (9) Sections 1 through 3 and 6 through 12 of

6 the Act of May 27, 1908 (35 Stat. 312, chapter

7 199).

8 (10) Section 23 of the Act of April 26, 1906

9 (34 Stat. 137, chapter 1876).

10 (b) OTHER ACTS.—

11 (1) IN GENERAL.—Not later than 6 months

12 after the effective date of this Act, the Secretary

13 shall prepare and submit to Congress a list of other

14 provisions of law that—

15 (A) expressly reference property of the

16 Five Nations or of Five Nations’ citizens and

17 that are in conflict with the provisions of this

18 Act; or

19 (B) are of general applicability with re20 spect to the property of Indian tribes and of in21 dividual Indians and that are in conflict with

22 this Act.

23 (2) TECHNICAL AMENDMENTS.—
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•HR 2880 IH

1 (A) Section 28 of the Act of April 26,

2 1906 (34 Stat. 137, chapter 1876) is

3 amended—

4 (i) by striking the first proviso; and

5 (ii) by striking ‘‘Provided further’’ and

6 inserting ‘‘Provided’’.

7 (B) Section 6(c) of the Act of August 4,

8 1947 (61 Stat. 733, chapter 458) is amended

9 in the first sentence by striking ‘‘of one-half or

10 more Indian blood’’.

11 (C) Section 1 of the Act of October 22,

12 1970 (84 Stat. 1091), is amended by striking

13 the last sentence.

14 SEC. 404. SECRETARIAL TRUST RESPONSIBILITY.

15 Nothing in this Act shall be construed to waive, mod16 ify, or diminish in any way the trust responsibility of the

17 United States over restricted property.

18 SEC. 405. REPRESENTATION BY ATTORNEYS FOR THE DE19 PARTMENT OF THE INTERIOR.

20 Attorneys of the Department of the Interior may—

21 (1) represent the Secretary in any actions filed

22 in the State courts of Oklahoma involving restricted

23 property;

24 (2) when acting as counsel for the Secretary,

25 provide information to all Indian citizens owning re-
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•HR 2880 IH

1 stricted property (and to private counsel for such

2 citizens, if any) regarding their legal rights with re3 spect to the restricted property owned by such citi4 zens;

5 (3) at the request of any Indian citizen owning

6 restricted property, take such action as may be nec7 essary to cancel or annul any deed, conveyance,

8 mortgage, lease, contract to sell, power of attorney,

9 or any other encumbrance of any kind or character,

10 made or attempted to be made or executed in viola11 tion of this Act or any other Federal law, and take

12 such action as may be necessary to assist such In13 dian citizen in obtaining clear title, acquiring posses14 sion, and retaining possession of restricted property;

15 and

16 (4) in carrying out paragraph (3), refer pro17 posed actions to be filed in the name of the United

18 States in a district court of the United States to the

19 United States Attorney for that district, and provide

20 assistance in an of-counsel capacity in those actions

21 that the United States Attorney elects to prosecute.

22 SEC. 406. FILING REQUIREMENTS; CONSTRUCTIVE NOTICE.

23 The following orders or other decision documents

24 which concern restricted property and are issued after the

25 effective date of this Act by the Secretary, by an adminis-
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•HR 2880 IH

1 trative law judge, or by any other authorized person pur2 suant to authority of this Act shall be filed in the Regional

3 Office and in the office of the county clerk in the county

4 where such restricted property is located: any order or

5 other decision document removing restrictions, imposing

6 restrictions, approving conveyances, approving leases, ap7 proving voluntary partitions, approving mortgages, pro8 bating wills or determining heirs, and any notice issued

9 by the Regional Director pursuant to section 402 of this

10 Act. The filing of said documents at the Regional Office

11 shall constitute constructive notice to the public of the ef12 fect of said documents filed. The Secretary shall have au13 thority to certify the authenticity of copies of such docu14 ments and title examiners shall be entitled to rely on said

15 authenticated copies for the purpose of determining mar16 ketability of title to the property described therein.

Æ
54

The CHAIRMAN. Thank you very much. Our first witness is the

Deputy Assistant Secretary for Indian Affairs of the Department of

the Interior, Aurene Martin.

Ms. Martin.

STATEMENT OF AURENE MARTIN, DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Ms. MARTIN. Good morning Mr. Chairman, Mr. Vice Chairman.

My name is Aurene Martin, and I am the Deputy Assistant Secretary of Indian Affairs at the Department of the Interior. I’d like

to thank you for the opportunity to provide testimony today on

H.R. 2880.

H.R. 2880 amends laws relating to the Muscogee Creek, Seminole, Cherokee, Chickasaw, and Choctaw Nations, historically

known as the Five Civilized Tribes. The administration supports

this legislation.

H.R. 2880 seeks to rectify certain problems involving restrictive

property, which results in unequal treatment of the lands compared to other Indian lands held in restrictive status elsewhere.

Because of the unique historical situation that exists in Oklahoma,

the Five Nations escaped the forced allotment of their lands authorized by the General Allotment Act.

However, since the Federal Government did not hold title to the

lands, it did not have the legal authority to issue fee patents to

Five Nation members, and instead, a complex system of Federal allotment laws developed, which currently governs and only applies

to the Five Nations.

As a result of these laws, members and lineal descendants of the

Five Nations have been subject to Oklahoma State court jurisdiction for administrative approval of a number of transactions involving restrictive Indian lands held by individual Indians who possess

one-half or more degree Indian blood quantum.

In these matters, Oklahoma State courts may act on behalf of

the Secretary of the Interior. This unique jurisdictional scheme is

costly, cumbersome and confusing, and prevents meaningful estate

planning for these individual Indian members.

By contrast, the same matters involving other Indian restricted

lands are managed by the Department of the Interior, and no State

court jurisdiction applies. Over the past several years, the Department has worked with the Five Nations to develop legislation

which would end the disparity between the treatment of these

lands and other similarly restricted Indian lands of other tribes.

H.R. 2880 would treat the Five Nation owners of these restricted

lands in the same manner as other Indians who are owners of restricted lands. H.R. 2880 would also make several important

changes to the Federal laws governing the restricted land held by

individual Indians of the Five Nations. A number of the amendments it would make would include making all restricted properties subject to restrictions against alienation regardless of the

blood degree of the Indian individual who owns the property. It

would also allow an individual to use the proceeds from the conveyance of restricted property to purchase other property which may

be held in restricted status.
55

H.R. 2880 would also give the Secretary of the Interior the exclusive jurisdiction to handle administrative matters dealing with

these lands, including the ability to approve conveyances and

leases, and the ability to probate wills or determine errors and adjudicate estate actions involving restricted properties. It also authorizes the Secretary to administer certain oil and gas leases.

I would like to reiterate our support for this bill which we believe

is both consistent with the self-determination policy and self-sufficiency for tribes and tribal members. I would ask that my written

testimony be entered into the written record. This concludes my

testimony. I would be happy to answer any questions.

[Prepared statement of Ms. Martin appears in appendix.]

The CHAIRMAN. Thank you very much and your full statement

will be made part of the record. If I may, in reading the testimony

of the United Keetoowah Band, they argue that the historic Cherokee Nation as it existed prior to 1906 now consists of two tribes.

The United Keetoowah Band and the Cherokee Nation of Oklahoma. As a result, this band is requesting that the bill be amended

to clarify the definition of Five Nations, to include the United

Keetoowah Band. Does the Department of the Interior view the

United Keetoowah Band as descendants of the historic Cherokee

Nation?

Ms. MARTIN. My understanding is that members of the United

Keetoowah Band and the Cherokee Nation descend from the same

population. I am not clear on whether our analysis has gone so far

as to say they were all members of the historic Cherokee Nation,

nor am I aware that we’ve made a determination whether the

United Keetoowah Band and the historic Cherokee Nation share

rights descending from the historic Cherokee Nation.

The CHAIRMAN. Does the Department recognize the United

Keetoowah Band as a federally-recognized Indian tribe?

Ms. MARTIN. Yes; we do.

The CHAIRMAN. Does the Department believe that the United

Keetoowah Band should be included within the definition of Five

Nations?

Ms. MARTIN. We’re still completing our legal analysis as to

whether the United Keetoowah Band is a descendant of the historic

Cherokee Nation and would be included in Five Nations legislation.

So I can’t really answer that right now, but I would like to followup

in writing with you if that’s okay.

The CHAIRMAN. Can you provide us with that response as soon

as possible? We would like to report this measure out next week

at the latest.

Ms. MARTIN. Yes.

The CHAIRMAN. Is it the Department’s view that the bill allows

restricted lands of the United Keetoowah Band members to escheat

to the Cherokee Nation of Oklahoma?

Ms. MARTIN. Again, I’m not sure what our analysis is on that

particular issue and I would have to get back to you on that, as

well.

The CHAIRMAN. The Department is proposing an amendment to

this bill. If the Senate were to pass H.R. 2880 in its current form,

and follow that action with a bill to make technical necessary conforming amendments, would the Department object to proceeding
56

so that H.R. 2880 could be sent back to the House and directly to

the White House without conference?

Ms. MARTIN. I believe that would be acceptable to the Department. That proposal has not been reviewed within the Department,

but I don’t think it would rise to the level of an objection if it were

not made.

The CHAIRMAN. All right, thank you very much, Madame Secretary.

Mr. Vice Chairman.

Senator CAMPBELL. I understand that the provisions of the bill

won’t become effective until 2004. Is that correct?

Ms. MARTIN. Yes; I believe so.

Senator CAMPBELL. And that’s in order to give the Department

some time for to implement it, and I also understand the sponsors

of the bill are willing to discuss whether that’s time enough for the

Department or not. Would you keep our committee informed as to

the progress of that—those discussions so we can make any necessary changes if we have to?

Ms. MARTIN. Yes; I’d be happy to do that.

Senator CAMPBELL. Thank you, thank you Mr. Chairman.

The CHAIRMAN. Thank you very much, Madame Secretary.

Ms. MARTIN. Thank you.

The CHAIRMAN. Our next witness is Lindsay G. Robertson, special counsel on Indian Affairs to the Governor of Oklahoma, Frank

Keating. Mr. Robertson, welcome sir.

STATEMENT OF LINDSAY G. ROBERTSON, SPECIAL COUNSEL

ON INDIAN AFFAIRS TO GOVERNOR FRANK KEATING, UNIVERSITY OF OKLAHOMA COLLEGE OF LAW, NORMAN, OK

Mr. ROBERTSON. Thank you, Mr. Chairman, Vice-Chairman

Campbell and other members of the committee for the opportunity

to testify on behalf of Governor Frank Keating in support of H.R.

2880, the Five Nations Indian Land Reform Act.

The Five Nations—the Muscogee [Creek], Cherokee, Chickasaw,

Choctaw, and Seminole Nations—have long constituted an important cultural and economic presence in Oklahoma. Through the

execution of numerous compacts, the State of Oklahoma has in recent years had a constructive and mutually beneficial sovereign-tosovereign relationship with each of these Nations.

This relationship has been complicated somewhat by the State’s

exercising of Federal trust functions in areas addressed by H.R.

2880. Specifically, due to the unique Federal legislative treatment

of Five Nations’ allotments, State courts have been required to act

as Federal instrumentalities for the past 96 years in implementing

Federal laws governing the disposition of these lands, including

laws governing approval of sales, leases and probates of restricted

property. In addition to complicating the relationship between the

State and the Nations, this has placed an unusual burden on the

Oklahoma judiciary.

The Governor has observed the development of the Five Nations

Land Reform Act over the past several years. It was most recently

introduced earlier this year in the U.S. House of Representatives

as H.R. 2880 and a substitute version was approved by the House

on June 11, 2002, after final concerns by various interest groups
57

were addressed. As currently written, this legislation will have a

significant positive impact not only on individual Indian owners of

Five Nations allotments, but also on non-Indian owners of former

restricted property. It will also have a positive impact on the courts

of the State of Oklahoma.

Although H.R. 2880 will require state courts to continue to exercise limited jurisdiction over partitions and quiet title actions involving restricted lands, it will return most Federal trust functions

back to the Federal Government. It will establish an efficient process for the approval of sales and leases of restricted property

through a Federal administrative process. It will also facilitate the

probate of estates containing restricted property by placing that

function with the Federal Government, thus eliminating the costs

necessarily associated with State court probate actions and enabling Indian heirs to secure probates at no cost through use of Federal administrative law judges.

H.R. 2880 also contains a number of provisions that are designed

to protect vested property rights of third parties and establishes a

more streamlined process for curing of title defects caused by complicated Federal law requirements affecting property that was formerly restricted. Thus, it will be beneficial to both Indian and nonIndian citizens in Oklahoma.

Although H.R. 2880 will slow the removal of lands from restricted status, it will not increase the restricted land base and will

not have any negative impact on state and local tax revenues.

Governor Keating believes that Oklahoma citizens and interest

groups have been afforded the opportunity to participate in the

bill’s evolution during the past few years. These groups have included the Probate Committee and the Real Property Section of the

Oklahoma Bar Association, and the Indian Nations themselves. Indeed, the Nations have taken an active part in the drafting of the

bill. He supports the enactment of H.R. 2880 into law, and he looks

forward to seeing the positive impact that this important legislation will have on the citizens of Oklahoma. Thank you.

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

The CHAIRMAN. Thank you very much. And will you send our

greetings to the Governor?

Mr. ROBERTSON. I will gladly do so.

The CHAIRMAN. Thank you.

Our next panel consists first of the principal chief of the Cherokee Nation, Chad Smith; the principal chief of the Muscogee Nation, R. Perry Beaver, who will be accompanied by Wilbur Gouge,

speaker of the Muscogee Creek National Council; the principal

chief of the Choctaw Nation of Oklahoma, Greg Pyle; the Governor

of the Chickasaw Nation, Bill Anoatubby, who will not be able to

be with us today, but he sends us his prepared statement, and

without objection, his full statement will be made part of the

record.

[Prepared statement of Governor Anoatubby appears in appendix.]

The CHAIRMAN. May I first call upon the distinguished chief of

the Cherokee Nation, Chad Smith.
58

STATEMENT OF HON. CHAD SMITH, PRINCIPAL CHIEF,

CHEROKEE NATION, TAHLEQUAH, OK

Mr. SMITH. Thank you very much. Let me begin by thanking

both of you, Chairman Inouye and Vice-Chairman Campbell for the

opportunity to appear in front of you.

This is a unique opportunity to present our views in support of

H.R. 2880, the Five Nations Indian Land Reform Act. I say that

the opportunity is ‘‘unique’’ because although over the course of the

20th Century, the U.S. Congress has passed numerous laws-in fact,

dozens of them-pertaining specifically to the allotted lands of the

Cherokee, Creek, Choctaw, Chickasaw, and Seminole Nations, none

of those laws was particularly good from the Indian perspective,

and many if not most were quite bad.

On the other hand, H.R. 2880 will be good for the Indian landowners, and if passed into law it will be the first time in over 100

years that Congress has taken a truly dramatic step toward protecting the interests of Indian owners of restricted lands in eastern

Oklahoma. This bill is good for individual Indians, it is not a bill

that benefits tribes themselves. The working committee has accommodated the input of other tribes and has gone to extremes to focus

this bill for the benefit of individual Indians, not to involve tribal

issues or to make changes to current law regarding tribal entities.

In other words, the beneficiaries of this bill are the full-blooded

Indians in Indian territories. It is a bill to help them hold on to

the last remnants of Indian land within our tribal nations.

I would like to make this point, that the bill was the product of

considerable work and input from many different perspectives, parties and interests. Our lawyers and realty staff, of course, had considerable input, but they worked with the members of the Oklahoma Bar Association, the Regional Central Office, the Bureau of

Indian Affairs staff and attorneys, with the House Resources Committee, the House Legislative Council, the staff of this committee,

for which we are very grateful. As a result, the bill reflects careful

balancing of interest, Indian, non–Indian, Federal and local. It is

a well-crafted piece of legislation that will benefit Indian country

in eastern Oklahoma.

In 1930, the Indian Removal Act provided for the present exchange lands of the Five Tribes in the Old Country, the southeastern United States, Georgia, Tennessee, for those lands in Indian

Territory west of the Mississippi. What is so unique about that situation is that—and distinguishes the Five Tribes from most of the

other tribes in the country—is that the bill, the Indian Removal

Act, allowed the presence to exchange the highest title that governments can exchange title, we received an exchange of fee patent.

Actually, we have that fee patent framed at our historical site, a

beautiful meets and bounds description of the Indian territory. The

highest exchange of lands between governments.

The other tribes in the country received their lands in trust, the

Federal government took title. We took title in our name. And that

caused problems during the allotment period. We were not under

the General Allotment Act like the rest of the tribes, but it was

only with the Curtis Act that our lands were compelled to be allotted. The principal chief actually signed the allotment deeds to

alottees.
59

And because of that historical scenario, our lands were treated

differently, and that’s because in the last 100 years, Congress, from

time to time, has gone to treat the Five Tribes differently. As a result, you actually had in the Indian Country two kinds of allotments. Restricted allotments, in which the individual owns title but

it’s restricted from alienation, restricted from mortgaging, sale, gift

[and] the trust allotments, the trust allotments being held in title

by the Federal Government.

So we have two different statutory and administrative regimes.

We believe this bill is important because it will conform the treatment of restrictive allotments to how trust allotments are treated,

provides as has been testified earlier administrative procedures

which will reduce the cost of probate and provide additional protections.

I would also invite your attention to the simple fact that from the

total restricted land base in Oklahoma is only a tiny fraction of

what it was 98 years ago, in fact, Cherokee restricted allotments

are one-third of one percent of what they were at allotment.

This bill comes as a result of litigation in the 1980’s in a case

called Walker v. United States, and that case pointed out the failures of protections of restricted allotments. There’s a great law review article and I encourage the committee to read it, if you ever

can find the time, of course. It’s called ‘‘Fatally Flawed: State Court

Approval of Conveyances of the Five Civilized Tribes: Time for Legislative Reform.’’ It was drafted by Timothy Vollmann and Sharon

Blackwell in the Tulsa Law Review Journal.

I’ll defer to the rest of the panel for discussion of the bill, but I

certainly wish and encourage the Congress to pass this bill. It’s

needed reform, we sincerely appreciate it by not only the Cherokee

Nation, the Five Tribes, but each of our citizens.

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

The CHAIRMAN. Thank you very much, principal chief Smith. And

now may I call upon the distinguished principal chief of the

Muscogee Nation, R. Perry Beaver.

STATEMENT OF R. PERRY BEAVER, PRINCIPAL CHIEF,

MUSCOGEE [CREEK] NATION, OKMULGEE, OK, ACCOMPANIED BY WILBUR GOUGE, SPEAKER OF THE MUSCOGEE

CREEK NATIONAL COUNCIL

Mr. BEAVER. Thank you, Chairman Inouye, Vice Chairman

Campbell, and members of the committee. Thank you for this opportunity to share some of my thoughts with you about H.R. 2880,

the ‘‘Five Nations Indian land Reform Act.’’

My name is R. Perry Beaver. I am a full citizen of the Muscogee

[Creek] Nation. I have spent most of my life in the Muscogee Nation. I have served as the principal chief of the Muscogee Nation

for the past 7 years. For many years before that, I served as a

member of the National Council of the Muscogee Nation. My

grandparents owned restricted land within the Muscogee Nation,

my parents owned restricted land and I also own restricted entrust

land within the Muscogee Nation.

During my lifetime, I have seen first hand that the Federal system for the protection of restricted Indian lands within the
60

Muscogee Nation has not protected these lands, and has caused

great hardship on Indian landowners.

The current Federal laws affecting our restricted lands are complicated and confusing. The Five Nations Indian land Reform Act,

H.R. 2880, will significantly reform existing Federal legislation governing restricted lands owned by allottees, and descendants of

allottees, of the Muscogee [Creek], Cherokee, Seminole, Choctaw,

and Chickasaw Nations. H.R. 2880 is the result of more than a decade of research, meetings and refining of the bill’s language.

This bill before you today is the result of tedious and thoughtful

work by numerous persons, and many, many revisions. We have received considerable input and technical assistance from the Department of the Interior personnel at the Muscogee Regional Office and

the Tulsa Field Solicitor’s Office, all of whom have extensive and

unique experience with the implementation of existing Federal

land laws affecting Indians in eastern Oklahoma. We have held

meetings with members of the Oklahoma Bar Association Probate

Committee and Real Property Section.

Based on their comments and suggestions, we made changes. We

have spent long hours discussing recommendations with the BIA

Central Office, and have made many more changes. During the

past 3 years, we have also utilized the expertise of Congressional

staff. They have played a major role in ensuring that this legislation is consistent with Federal Indian policy and is drafted in such

a way as to ensure that the intent of its provisions is clearly stated.

I would like to take a few moments to talk about some of the

problems that restricted landowners in eastern Oklahoma have encountered. One of the biggest problems is the historic inability of

heirs of restricted landowners to have the estates probated. Most

of these estates have not been probated because Indian heirs do not

have money to hire private attorneys to file probates in the State

court system, which is required by current law.

History has also shown that countless acres of restricted lands

have been lost when state courts have authorized the sale of the

restricted lands in estates in order to pay the costs and attorneys

fees for probate of the estate. This often involved sale of the entire

restricted estate, rather than sale of just enough property to pay

the costs and attorneys fees.

Since enactment of the act of June 14, 1918, the Oklahoma State

courts have had jurisdiction over actions to determine heirs of owners of individual restricted Five Tribes allotments. The act of August 4, 1947 [the 1947 act] gave State courts exclusive jurisdiction

of all guardianships and probates affecting Indians of the Five Nations. This Federal use of a State system to perform Federal trust

responsibilities has not occurred anywhere else in the country. It

has been a failure.

H.R. 2880 will stop the filing of future heirship and probate cases

involving restricted lands in Oklahoma State court. Instead, the

Secretary’s designee will have exclusive jurisdiction to probate

wills, hear estate actions or otherwise determine heirs of deceased

owners of restricted and trust property, including restricted or

trust funds or securities. This bill authorizes the Secretary to designate administrative law judges or other officials to perform these

probate duties. However, it will permit any probate or heirship pro-
61

ceedings that are pending in Oklahoma State court as of the effective date of the act being concluded in State court.

Federal administrative jurisdiction over probates and heirships

involving trust and restricted property will help heirs of deceased

restricted landowners to finally obtain title to their restricted

lands. The case will be prepared administratively by realty personnel and then submitted to an Indian probate judge. Indian heirs

will not need to hire attorneys, and there will be no filing fees.

During the past year or two, the BIA has established new ‘‘attorney

decision maker’’ positions throughout the country to probate Indian

trust estates.

There is now an attorney decision maker assigned to western

Oklahoma to deal with probates involving trust property. Enactment of the H.R. 2880 will result in the creation of new attorney

decision maker positions in eastern Oklahoma. They will deal solely with probates of Five Nations restricted and trust estates, and

by hard work by tribal and Federal personnel, with proper funding,

we can finally resolve the problem of unprobated estates. The bill

will reduce the number of cases filed in State and Federal court involving restricted land.

Another problem is the use of adverse possession as a way of taking restricted land. That has been a unique problem faced by restricted Indian landowners. This problem started when Congress

enacted the Act of April 12, 1926, which made Oklahoma State’s

limitations apply to restricted land. Nowhere else in the country

are state statute of limitations applied to Indian lands. In eastern

Oklahoma, the Oklahoma statute of limitations is used to allow

persons to acquire title to property if they meet various requirements, including open and hostile possession of the land for a period of 15 years or more.

Many acres of restricted lands have been lost through adverse

possession. H.R. 2880 has been drafted to eventually place restricted lands in the same status as trust lands, which are not subject to adverse possession. It will allow adverse possession of restricted lands only if all requirements of Oklahoma law for acquiring title by adverse possession, including the running of the full 15-

year limitations period, have been met before the effective date of

this act. Eventually, adverse possession of restricted land will become a thing of the past.

A large amount of restricted Indian land in eastern Oklahoma

has also been lost through forced partition sales, which were filed

in state court, based on the Act of June 14, 1918, which made state

partition laws applicable to restricted lands in eastern Oklahoma.

This 1918 law is different from Federal laws and regulations applicable to partition of trust property. Under those laws, partitions of

trust property are under the Secretary’s jurisdiction. Under H.R.

2880, involuntary partition of trust property and voluntary partition of restricted and trust property will be removed from State

court jurisdiction. These partitions will be under the Secretary’s jurisdiction.

The bill will continue to allow involuntary partition of restricted

property to be filed in state or Federal court for ten years from the

effective date of the act. Under State law, an owner of an individual interest, no matter how small, can force the sale of the entire
62

acreage. Although this will not change immediately under the provisions of the proposed bill, the proposed bill will allow an Indian

owner who doesn’t consent to a partition sale to receive a minimum

of 90 percent of the appraised value and will not allow assessment

of costs against nonconsenting owners.

This will be an improvement, since at the present time, Indian

owners may receive only two-thirds of the appraised value of property sold in a forced partition, and the costs of the proceedings are

paid from the sales proceeds before distribution to the Indian owners.

H.R. 2880 will also establish a non-judicial procedure for Indians

and non–Indians to cure certain types of title defects in restricted

property or former restricted property, without requiring the owner

to file a quiet title action. This will save the landowners money

without putting a greater burden on the Federal Government.

Under current law, there is already extensive Federal involvement.

Notice of quiet title suits involving restricted property must be

given to the BIA Eastern Oklahoma Regional Director. Regional

Office staff and tribal realty staff must conduct a detailed review

to determine whether the Federal Government should consider further involvement in the case.

Many cases are referred to the Tulsa Field Solicitor’s Office.

Some cases require representation by the U.S. Attorney and removal to Federal court. The bill will streamline the process and

will be more efficient. The U.S. District Courts in the State of

Oklahoma and Oklahoma State District Courts will still keep jurisdiction over quiet title actions, provided that they meet various requirements. H.R. 2880 also authorizes the courts of the State of

Oklahoma to continue to exercise Federal instrumental authority

over heirship, probate, partition, and other actions involving restricted property pending on the effective date of this act, unless

the petitioner, personal representative, or State court dismisses the

action.

H.R. 2880 will repeal various inconsistent Federal laws, as well

as laws that it has revised. This will be helpful, because it will do

away with scattered laws that are in some cases almost a century

old, and will replace these laws with one centralized and organized

law that will be more accessible to the people affected by this law,

and to the persons who must assist in implementation of this law.

This bill before you is not perfect. It is not possible to have a perfect bill, especially when there are so many factors and issues that

must be covered by this law. But I believe that this bill is ready

to be enacted into law. I believe that the time is long overdue for

Congressional action to remedy inequitable Federal legislative

treatment that the Five Nations have received for the past century.

I believe that by taking this step, Congress will enable our people

to keep those last few remaining acres of restricted Indian lands

within their families.

In a 20-year period between 1978 and 1998, more than 11,430

acres of restricted lands became unrestricted, and it is likely that

most of these lands went out of Indian ownership altogether. The

bill will not increase the Indian land base, but it will reduce the

amount of land that is being lost. We cannot afford to wait any

longer for this legislative reform. I ask that this Committee use all
63

possible speed to take appropriate action and ensure that this bill

is made into law in 2002.

Again, thank you for the opportunity to appear before you today.

[Prepared statements of Mr. Beaver and Mr. Gouge appear in appendix.]

The CHAIRMAN. Thank you very much, chief. Before proceeding,

I would like to recognize the distinguished Senator from Oklahoma.

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM

OKLAHOMA

Senator INHOFE. Thank you, Mr. Chairman.

First of all, let me apologize for the way things are run here in

Washington. It’s not my fault, but we’re having our big hearing,

our public hearing on intel on the 9–11, and its those of us who

serve on the Intelligence Committee, it’s required attendance and

that’s taking place at the same time, so I have to go back and forth.

I have one question I was going to ask Ms. Martin and since

she’s not up there, I can ask this question and she can nod. There’s

been a lot of confusion about this and I’ve had a lot of inquiries,

and I know all the distinguished participants at the table very well

personally, but people asking questions as to how, what’s going to

be affected in all this. I would like to simplify it and ask Ms. Martin if it’s true.

All this bill would do is put the land owned by Indians in eastern

Oklahoma on the same footing as western Oklahoma and the rest

of the country.

Ms. MARTIN. [Nodding.]

Senator INHOFE. And there are no other little seekers? Okay, I’ve

had a chance to talk to a number of people about this and they

keep coming up with other ideas and so I was hoping this would

come through. Let me just say, Mr. Chairman, I know that I’m out

of order here, but just say I’m really glad to be here to welcome

our distinguished guests and would like to ask them just one question if it would be alright. Thank you Mr. Chairman.

You know, the Bureau of Indian Affairs is not known for running

things as well as they should be running things, and we have all

had personal conversations about this. This bill, if passed, is going

to put a greater amount of responsibility on them. Do the three of

you all feel comfortable with this, that it would be properly administered to your mutual benefits?

Mr. BEAVER. Yes, Senator; I think it could properly administrate

it, but one thing I did note in there is that it must have proper

funding.

Mr. PYLE. Senator, If I may, I think all three of these tribes and

most of the other tribes, all but maybe the Seminole, actually contract with the Department of the Interior to run these sections, so

we would actually need funds, but we actually operate it now.

Senator INHOFE. Thank you, Chief Pyle.

Mr. SMITH. Certainly, Senator, it would be a vast improvement

over the system we have now.

Senator INHOFE. Alright, that’s the main thing I wanted to ask,

Mr. Chairman. Thank you for your indulgence.

The CHAIRMAN. Thank you very much for your presence.

Senator INHOFE. Yes, sir.
64

The CHAIRMAN. And now may I recognize the principal Chief of

the Choctaw Nation of Oklahoma, Greg Pyle.

Chief Pyle.

STATEMENT OF GREG PYLE, PRINCIPAL CHIEF, CHOCTAW

NATION OF OKLAHOMA, DURANT, OK

Mr. PYLE. Mr. Chairman, Senator Campbell, and members of the

committee, ladies and gentlemen, my name is Gregory Pyle, I’m the

chief of the Choctaw Nation of Oklahoma. We are the third largest

tribe in the United States right behind our neighbors, the Cherokee. Of course, we reside in the southeast corner, one-fourth of the

State of Oklahoma. I am here today to lend my support to the swift

passage of H.R. 2880, a bill to right inequities which exist in the

treatment of individual land allotments held by the Five Indian

Tribes.

We have a situation in the lands of the so-called Five Civilized

Tribes which is unique in the U.S. Government. In the 1830’s,

when my ancestors were removed from the South Eastern United

States to the Oklahoma Indian Territory, the treaties were signed

and transferred the land to the Five Tribes in fee simple. The lands

were subject to a Federal alienation, but were in a different legal

status than the lands reserved to Western Tribes in the treaties

covered by the period 1830–75.

As a result, our lands were not subject to the distributions and

ravages of the 1888 Dawes Act. We went into the era of Statehood

for Oklahoma with our land base fairly intact. In this respect, we

were lucky, then. However, this situation did not last.

During the period 1900–47, a series of land acts applicable only

to the Five Tribes in eastern Oklahoma were passed which led to

the present complex situation. To summarize, jurisdiction over probate and other actions involving individual title to allotted lands

was transferred to the State District Courts of Oklahoma. Actions

in these courts were subjected to costs and attorneys fees which led

to thousands of acres of land being sold away from decedents to

pay court costs associated with the estates.

Thousands of estates have not been probated or have been subjected to inordinate delays. Thousands of acres of land have been

lost by adverse action suits, when non–Indians have encroached on

Indian lands without the knowledge of Indian owners. Since most

Indians die without a will, the situation has been made worse.

Frankly, protections against loss of land and with respect to estates which have been afforded every other Indian tribe in the

United States are denied in eastern Oklahoma. H.R. 2880 responds

to this situation with remedial action. In brief, it would repeal the

tangle of estate and property laws which apply to the eastern onehalf of Oklahoma, and replace them with simple statements of law

similar to the rest of Indian country. It is a cornerstone, a vesting

of jurisdiction away from State courts, and placement of it with the

U.S. Secretary of the Interior. Its provisions are too numerous to

be set forth in detail in my testimony. However, we have reviewed

them, and we are in full support of the bill.

There is one cautionary note, however, which I must bring up.

Under current law, records pertaining to land and descendants and

tribal status are maintained by the Five Tribes, under contract
65

with the Department of the Interior. We receive support under our

contract for this activity, though the amount received has been insufficient in the past and has to be augmented by the Choctaw Nation. Under current law, we are responsible for providing this information to Members of the Choctaw Nation and to descendants of

Members or those on the original rolls of the Choctaw Nation.

Under new legislation, however, the tribes will be expected to

provide information to any descendant of a member or an original

enrollee, regardless of degree of Indian blood. This will be a substantial burden. This burden was recognized by the Congressional

Budget Office, which, in their report published as part of the House

Committee Report on the bill, found a need for substantial increases to the funds provided to tribes for those services. We hope

we can rely on our friends in the Congress to see that such funds

are provided in the future.

Mr. Chairman, that completes my testimony. I will be happy to

answer any questions you may have on the bill.

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

The CHAIRMAN. Thank you very much Chief Pyle.

If I may proceed in my questions with the principal chief of the

Cherokee Nation, Chief Smith, you have heard my questions to the

Deputy Assistant Secretary of the Department of the Interior. In

your view, does this bill allow restricted lands of the United

Keetoowah Band members to escheat to the Cherokee Nation of

Oklahoma?

Mr. SMITH. Senator, in 1970, this Congress passed law that restricted what allotments would escheat to the Cherokee Nation.

This bill does not change existing law, law that’s been on the books

for 32 years.

The CHAIRMAN. And do you agree that the members of the

United Keetoowah Band are descendants of the historic Cherokee

Nation?

Mr. SMITH. Sir, the question is framed a bit awkwardly. There

is not an historical Cherokee Nation. There is only one Cherokee

Nation. From our constitution of 1839 to the 1906 Act, to our

present constitution in 1975, those issues have been laid to rest by

the Federal judges in the northern District of Oklahoma. There is

only one Cherokee Nation, before and after statehood, now for 180

years.

The CHAIRMAN. Would the Cherokee Nation of Oklahoma agree

to include the United Keetoowah Band within the definition of Five

Nations?

Mr. SMITH. We would not, sir.

The CHAIRMAN. I thank you very much and now, if I may ask

Chief Beaver. You have indicated the restricted lands have been

lost through court-ordered sales in order to pay for costs of probate

and in addition, much restricted land has been lost through adverse possession. Do you have any estimate of how much restricted

land has been lost through such processes?

Mr. BEAVER. No, Senator; but I can get it. I know it’s been happening, as far as adverse possession and as far as partition for sale

of land and stuff like this. Personally, my mother lost her land because of partition for sale. She was forced to sell her land because

we couldn’t afford to buy the other person out. And as far as, per-
66

sonally, I’ve owned trust land, I’ve owned restricted land also, and

it’s a big problem. We were forced to have ours probated ourselves,

because we could afford an attorney.

But those who could not afford an attorney, their land was sold.

And then, from that sale of land, had to pay the attorneys. And so

that’s where some of their land was lost. As of right now, in 1906,

when the land allotment, we got some original allottees, they have

to be 96 years old, and we have about 20 original allottees, and you

see that’s three generations, and we as an original allotted land

have never been probated. And so you can see the complexity that

we have right now, that if we went to State court, what would it

take? So, I don’t know exactly what land has been lost, I know that

it happened. I can get that information to you.

The CHAIRMAN. I would appreciate that. Can you get it to us

rather soon, because we would like to report the to the full Senate.

Mr. BEAVER. Yes, sir.

The CHAIRMAN. Then may I say that the record of the proceedings will be kept open for 1 week in order to receive additional information and testimony. Chief, how many estates need to be probated in your nation?

Mr. BEAVER. Senator, I wouldn’t know, but there’s such a backlog, that I would dare to guess. I could ask our Attorney General,

she handles most of them. We probate now because we contracted

from them to do that. But we can only do three or four a month

at most, we’re way behind. In fact, we stopped taking action on

probates any more because our backlog is so far behind. The complexity of it is so much that it’s going to take a full-time attorney

such a long time.

The way it is now, I have restricted land and trust land in three

different counties in Oklahoma. My will has to be sent to each

county by an attorney. When it’s probated with a will, that’s the

complexity we have right now. We have to go to each county courthouse in each district and file our will. This would solve all of that.

The CHAIRMAN. If the defective transactions that you spoke of

are cured, will this result in the return of restricted lands to the

tribes?

Mr. BEAVER. I’m going to have to defer that to Chief Smith.

Mr. SMITH. It would not increase the land base of restricted

lands. It protects the remnants that we have now. It does not expand the land base.

The CHAIRMAN. Thank you very much. If I may ask a few questions of the chief of the Choctaw Nation. Is there anything that

would preclude the possibility of amending the contracts with the

Department to provide additional funds to take the increased burden into account?

Mr. PYLE. I think this could be brought up because we’ve never

been allowed to have these probates. I think what would happen

then is that the Secretary, the Assistant Secretary would have to

make available the at least a small portion of more money. We

have used, in the past, tribal resources. We are not a class III gaming tribe, we do not have legalized gaming pass bingo in our areas,

but what we’ve had we supplemented with tribal funds ourselves.
67

In response to your question earlier, it was estimated how many

probates were out there, somewhere about 5,000 in an estimate

about 5 years ago. It will take a long time.

The CHAIRMAN. I understand that the new laws applying to the

lands in northeastern Oklahoma will be similar to the rest of Indian country, but how will the new laws be different? Would they

be any different?

Mr. PYLE. My understanding [is] we would be treated like other

tribes.

The CHAIRMAN. As Senator Inhofe indicated.

Mr. PYLE. Yes, sir.

The CHAIRMAN. Mr. Vice Chairman.

Senator CAMPBELL. Thank you Mr. Chairman. Between the questions you asked and the very complete testimony of Chiefs Beaver,

Smith, and Pyle, I don’t have a lot of questions. I’ve always been

somewhat fascinated, though, by the history of the Five Civilized

Tribes as opposed to the rest of us who, I assume come from uncivilized tribes. I know they’ve been treated differently in history. I’ve

never understood a little bit of it. Maybe you can clear up a couple

of questions for me.

I understand from many Cherokee friends that there are two

types of enrollment, one called a red-card enrollment, one a bluecard enrollment. Is that familiar to you, Chief? One with benefits,

one without benefits? This is what I’ve heard from people in California who all tell me they are Cherokees. You’ve got a lot of them

out there.

Mr. SMITH. The Cherokee rolls go back to the Dawes Commission

roll in the early 1900’s. The Cherokee Nation prior enrollment requires a certificate degree of Indian blood and we issue a citizenship card which is usually blue. The United Keetoowah Band,

which originated in 1950, has a membership card also. Much of

their membership goes back to the Dawes Commission enrollment,

their card, I believe, at one time was red.

There are a lot of groups out there who profess to be Cherokee

Nations and they’re not citizens of the Cherokee Nation, you cannot trace back to the Dawes Commission roll.

Senator CAMPBELL. The effects of this bill will, in effect, will be

for the people who can trace ancestry through what are called red

card holders.

Mr. SMITH. Through the Dawes Commission rolls.

Senator CAMPBELL. The Dawes Commission rolls. Is that based

on blood quantum or lineal descendency?

Mr. SMITH. The Dawes Commission rolls were closed in 1905.

You had to be a resident in the Five Tribes and you had to have

some showing of blood quantum. You did not have to have a minimum. So that’s the base roll for the Five Tribes.

Senator CAMPBELL. Now they just have to, when a person’s enrolled, they just have to show lineal descendency to somebody that

was on the Dawes Roll, the original Dawes Roll, is that correct?

Mr. SMITH. That’s correct. Senator Campbell. Unlike other tribes

where you have to, in some cases, have one-fourth provable or

something of that nature, is that correct?

Mr. SMITH. Each of the Five Tribes is a little different scenario.

With the Cherokee Nation, we don’t have a minimum blood quan-
68

tum. We follow the theory that it’s a right of citizenship, it’s a political right rather than a racial right.

Senator CAMPBELL. So this bill—maybe I’m way off on this thing,

I’m just totally out in left field here. How would this affect people,

for instance, who are members of the tribe but haven’t been there

for 100 years. Through lineal descendency, they’ve been put on the

roll but they’re out in California, they couldn’t recognize an Indian

if they stumbled into one.

Mr. SMITH. This bill has a very limited application. It really applies to those Indians who by definition have restricted lands now

and they have to be one-half degree or more. Those who are less

than one-half degree would not be directly affected by this bill until

heirship become an issue. It’s one-half or more.

Senator CAMPBELL. Chiefs Pyle and Beaver, are your rules established pretty much the same way as the Cherokee?

Mr. BEAVER. Yes, Senator; this bill only affects those landowners

that have restricted or trust property.

Senator CAMPBELL. I see.

Mr. PYLE. It would be the same with the Choctaw.

Senator CAMPBELL. Same with the Choctaw. Okay.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much.

The CHAIRMAN. Our next panel consists of the chief of the Delaware Tribe of Indians of Oklahoma, Dee Ketchum, and the chief of

the United Keetoowah Band of Oklahoma, Dallas Proctor, who will

be accompanied by the council member of the United Keetoowah

Band, Charles Deason.

STATEMENT OF DEE KETCHUM, CHIEF, DELAWARE TRIBE OF

INDIANS, BARTLESVILLE, OK

Mr. KETCHUM. Good morning. I want to thank the committee for

taking the time to seriously consider this very important bill. My

name is Dee Ketchum, I am the chief of the Delaware Tribe of Indians located in Bartlesville, OK.

To give you a little background concerning the Delaware Tribe,

it was the first treaty tribe to have a government-to-government relationship with the U.S. Government, in 1778. Since then, we have

maintained our government-to-government relationship with the

U.S. Government.

In about 1867, the tribe was removed to the lands within the

former Cherokee boundaries in Oklahoma. At that time, we had to

purchase all the rights of native Cherokees and purchase approximately 157,000 acres from the Cherokee Nation at a price of $1 per

acre to preserve our tribe. We have continuously resided within

northeastern Oklahoma since 1867. Most of the Delawares took

their allotments the same as Cherokees during that period of time.

But 198 took their allotments as Delawares. These 198 allotments

are known as ‘‘D-alottments.’’

Since the reorganization of the Cherokee Nation in 1975, our relationship with the Cherokee Nation has not been good at best. The

Cherokees resent our presence in their old reservation and would

like dearly to see us evicted. We believe that various provisions of

this bill, drafted by Cherokee attorneys, are intended to further the

Cherokee’s goal of doing away with the Delaware Tribe.
69

While we support the goal of H.R. 2880 to do away with the

blood quantum requirements for inherent allotments, we have been

concerned with some of the unnecessary language in the bill, and

some of the drafts of this Five Nations Act. While Senator Inhofe

and his staff have helped us to modify some of the objectionable

language, we still have four concerns remaining with this particular bill.

First, we would request that the committee amend the language

to clarify that Congress is not intending to recognize existing reservation boundaries of the Cherokee Nation. We have requested,

instead, that the committee refer to this area and the ‘‘former’’

boundaries of the Five Nations.

Second, H.R. 2880 has created a new term, ‘‘Individual Indian.’’

With this new capitalization, this implies there is some kind of new

term of art. The definition of Indian in this act is clearly limited

to this act and we see no reason to create a new category. We

would therefore request that the committee drop the capitalized ‘‘I’’

in ‘‘Individual Indian’’ throughout this bill for the same reason we

would ask the committee drop the word ‘‘individual’’ from ‘‘Individual Indian’’ in the definition section.

Third, section 204 (a)(3) is a section dealing with trust lands. It

provides that if an Indian tribe in eastern Oklahoma owns part of

a trust land, the Assistant Secretary cannot force a partition, but

the provision applies to only one of the Five Nations. In this bill,

intent to apply to restricted allotments moves into the area of trust

lands that limits reference to the five larger tribes.

To me, this shows an intent from Congress not to recognize the

rights of the Delaware Tribe to have land put in trust. There is no

reason why the Five Nations’ right to retain interest in land trust

should be favored over the other six federally-recognized tribes in

eastern Oklahoma.

We are requesting that this provision be amended to include the

language of ‘‘or other Indian tribes.’’

Fourth, section 408 is supposed to clarify that nothing in the act

is intended to affect the existing laws for taking land in trust. But

it only applies to individual Indians and does not effect the same

protection to other tribes residing in northeastern Oklahoma.

Again, to me, this means that Congress is not interested in treating the Delaware on equal terms and grounds with other tribes. We

have also requested that this provision be amended to include a

reference to ‘‘other Indian tribes.’’

In conclusion, I would like to ask, on behalf of the Delaware

Tribe, amend these problematic provisions before moving this bill

forward. I thank you for your time. Again, we do feel like this is

a good bill with good intent, but there are some problematic provisions in there we have concerns with, personally. Thank you.

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

The CHAIRMAN. Thank you very much, Chief.

And may I now recognize Chief Proctor of the United Keetoowah

Band.
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STATEMENT OF DALLAS PROCTOR, CHIEF, UNITED

KEETOOWAH BAND, TAHLEQUAH, OK, ACCOMPANIED BY

CHARLES DEASON, COUNCIL MEMBER

Mr. PROCTOR. Thank you, Mr. Chairman, I would like to thank

you guys in the language first. Good morning, my name is Dallas

Proctor, and I am the chief of the United Keetoowah Band, the

Cherokee Indians in Oklahoma. With me this morning is Charles

Deason. He’s a council member and the Tribal Legislative Liaison.

Thank you on behalf of the United Keetoowah Band [UKB] for

the opportunity to testify regarding H.R. 2880, the Five Nations Indian Land Reform Act. Your committee has a proud history of protecting and furthering tribal sovereignty. Because of this, we are

hopeful that you will amend H.R. 2880 to reflect the fact that the

United Keetoowah Band of Cherokee Indians is a separate government from the Cherokee Nation of Oklahoma [CNO] and one with

equal sovereignty and equal claim to inheritance of authority and

rights of the historic Cherokee Nation.

There is a complex problem with this bill because of the interwoven nature of the two tribes and their tribal members regarding

their restricted lands, but there is a simple fix. The harms that this

bill intends to correct were visited upon the historic Cherokee Nation.

That historic Cherokee Nation has been succeeded by two federally recognized tribes both having descendants from the 1906

Dawes Rolls and both having descendants who own restricted property. Ninety eight percent of the UKB members still live within the

boundaries of the historic Cherokee Reservation. All of the UKB

and CNO members in Oklahoma are affected, and both tribes

should be named in the bill as successor to the historic Cherokee

Nation.

We ask this committee to amend the definition of the Five Nations in section 4(1) of the bill to provide that the term ‘‘Five Nations’’ means ‘‘the Cherokee Nation through its successors, the

United Keetoowah Band of Cherokee in Oklahoma and the Cherokee Nation of Oklahoma.’’ If the term ‘‘Cherokee Nation’’ were defined as its present successors, CNO and UKB, much of the bill

would be repaired. We ask that you do so to ensure that these reforms apply with equal fairness to all descendants of the historic

Cherokee Nation.

If enacted without this change, our tribal members face the prospect of having many aspects of their lives related to lands, property, and inheritance determined by a tribal government that is not

their own. It would impede the sovereignty right of UKB to protect

our members and exercise jurisdiction over our lands.

UKB is a federally-recognized tribe. We ask this committee to respect the fact that the Federal Government, at the direction of Congress, already recognizes the UKB as sovereign and independent of

the present-day Cherokee Nation of Oklahoma. While our people

are closely related and we were at one point part of the historic

Cherokee Nation, we now have separate, federally recognized governments. Just as there are a number of Sioux tribal governments

in South Dakota, there is more than one Cherokee tribal government in Oklahoma.

As evidence of UKB status, we note:
71

No. 1, the United States Congress, through the act of 1946, legislatively authorized the United Keetoowah Band of Cherokee Indians in Oklahoma to organize as a separate tribal entity under the

Oklahoma Indian Welfare Act;

No. 2, the Secretary of the Interior approved the Constitution of

the United Keetoowah Band of Cherokee Indians in Oklahoma in

1950;

No. 3, UKB was listed by the Department of the Interior most

recently in the July 12, 2002 Federal Register as a federally recognized tribe; and

No. 4, UKB contracts under the Indian Self-Determination Act

with the BIA to administer funds for services to its members.

There are two successor governments to the 1906 Cherokee Nation rolls. The UKB ancestors were part of the historic Cherokee

Nation at the time of the act of April 26, 1906, that dismantled the

Cherokee government, allotted portions of the Cherokee lands and

caused the creation of the final roll of the Cherokee Nation. H.R.

2880 addresses problems that flow from that and subsequent legislation affecting the land rights of lineal descendants of the Five

Nations, including the historic Cherokee Nation.

While only five such governmental entities existed in 1906, that

is no longer true. Because UKB members are lineal descendants of

the 1906 Cherokee rolls, H.R. 2880 covers them and their property.

However, no role has been provided for that tribal government. We

have attached more detailed information regarding the history of

the United Keetoowah Band of Cherokee Indians of Oklahoma.

We support the goal of H.R. 2880. Reform is certainly needed.

Amending the bill to give UKB its rightful treatment as a tribal

government would not undermine the intent of the bill, but would

allow UKB to serve its members. We have attached several specific

recommendations for proposed changes.

The United Keetoowah Band of Cherokee Indians in Oklahoma

thanks you for your hard work on this important bill to end the

disparities of Indian land tenure in Oklahoma. Our comments are

intended to avoid the creation of new and unintended disparities.

We ask again that you amend the bill to respect the sovereign status of the UKB. Thank you.

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

The CHAIRMAN. I thank you very much, Chief. Both of your nations are federally-recognized tribes?

Mr. PROCTOR. Yes, sir.

The CHAIRMAN. And both of you have testified that there are certain provisions that you want amended in this measure.

Mr. PROCTOR. Yes, sir.

The CHAIRMAN. Would you be in favor of having this bill passed

by the Senate as it is, unamended, with the assurance that there

will be another bill that will be considered for further amendments

to this bill? I ask this question because if we were to go through

the process of amending this measure at this stage in the U.S. Senate, it will have to go to conference with the House, and the time

being what it is with activities in Iraq, the 13 appropriations measures, I cannot assure that this measure would be considered expeditiously. The only way we can consider this expeditiously is to

pass the measure as it is so that it will go directly to the President
72

or hold it up and possibly consider the bill next year with the

amendments. I can in no way assure you how the conference would

turn out and so what are your thoughts on that?

Mr. KETCHUM. Mr. Chairman, I can’t speak for United

Keetoowah, I understand what you’re proposing, from the Delaware

perspective, I understand the seriousness of timeline here. It would

be difficult for me to state that I would agree with that procedure

without seeing what those amendments would be and could be assured that they would be employed.

The CHAIRMAN. Chief Proctor.

Mr. PROCTOR. I would defer that to Mr. Deason for comment, sir.

Mr. DEASON. Mr. Chairman, thank you for the opportunity to

speak before you. At this time, I believe we would have to object

to that without, as Mr. Ketchum said, seeing the amendments and

not knowing the assurances that we would have should it go

through as it is currently written. Those are some things that we

as tribal leaders would have to get the input from our constituents

who we represent, and this is what we’re standing for today.

The CHAIRMAN. May I ask another question of those of the

chiefs? Have you attempted to discuss or negotiate this matter with

the principal chief and his council of the Cherokee Nation?

Mr. KETCHUM. We have been in negotiation with the Cherokee

chief on a number of projects for a number of years and it has been

fruitless in some of our discussions, Mr. Chairman.

Mr. PROCTOR. We have not had any negatives with Chief Smith.

What I understand is that he just does not want to talk to us. And

that’s the best answer I can give you today, sir.

The CHAIRMAN. From what I gather, the relationship that the

Delawares and the Keetoowahs have with the Cherokee Nation can

be described as being good, is that correct?

Mr. PROCTOR. Yes, sir.

The CHAIRMAN. And friendly?

Mr. KETCHUM. Pretty much, so.

The CHAIRMAN. And they have not done anything that would

anger you?

Mr. KETCHUM. Are you making reference to the association of the

Delaware Tribe with the Cherokee Nation? Of what that kind of relationship has been? Not good. With us and the Delawares and the

Cherokee Nation.

The CHAIRMAN. Are both of you opposed to having this measure

be considered as it is and sent to the President with the assurance

that amendments would be considered at a later date? I cannot assure you as to what the amendments would look like, because there

is a House of Representatives. I cannot speak for them.

Mr. KETCHUM. I probably would stay with what I previously, Mr.

Chairman, have stated. It would be very difficult for me to state

that I would approve that without seeing what those amendments

and corrections would be.

The CHAIRMAN. And I presume that is the position of Chief Proctor?

Mr. PROCTOR. Yes, sir; it is.

The CHAIRMAN. Well, that is why we have committees. We will

do our best to resolve this matter and I thank both chiefs and Mr.

Deason. Our final witness is the attorney at law from Ada, OK,
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Bob Bennett. Is Mr. Bennett here? If not, the record of this committee proceeding will be kept open for 1 week and with the assurance

that if any witnesses have any addendums or corrections, any further testimony you want to submit, please do so, but do so within

1 week.

With that, I thank all of you for your participation. It has been

very helpful.

Thank you very much.

[Whereupon, at 11:13 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

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APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF GREGORY PYLE, CHIEF, CHOCTAW NATION OF OKLAHOMA

Mr. Chairman, Senator Campbell, members of the committee, ladies and gentle- men: My name is Gregory Pyle, and I am the chief of the Choctaw Nation of Oklahoma.

We are the third largest Indian Nation in the United States right after our neighbors who are also here today, the Cherokee, and we reside in the South Eastern

one-quarter of the State of Oklahoma. I am here today to lend my support to the

swift passage of H.R. 2880, a bill to right inequities which exist in the treatment

of individual land allotments held by Indians in the lands of the Choctaw, Cherokees, Creeks., Chickasaws, and Seminoles.

We have a situation in the Lands of the so-called Five Civilized Tribes which is

unique in the area of U.S. Indian Affairs. In the 1830’’s, when my ancestors were ‘‘removed’’’ from the South Eastern United States to the Oklahoma Indian Territory

beyond the Mississippi, the treaties we signed transferred the land to the Five

Tribes in fee simple. The lands were subject to a Federal restraint of alienation, but

they were in a different legal status than the lands reserved to other Western Tribes

in the treaties covered by the period 1830–1875. As a result, our lands were not subject to the distributions and ravages of the 1888 Dawes Act, and we went into the

era of Statehood for Oklahoma with our land base fairly intact. In this respect, we

were lucky.

However, this situation did not last. During the period 1900–1947, a series of

Land Acts applicable only to the Five Tribes in Eastern Oklahoma were passed

which led to the present complex situation.

To Summarize: Jurisdiction over probate and other actions involving individual

title to allotted lands was transferred to the State District Courts of Oklahoma. Actions in these courts were subjected to costs and attorneys fees which led to thousands of acres of land being sold away from decedents to pay court costs associated

with the estates. Thousands of estates have not been probated or have been subjected to inordinate delays. Thousands of acres of land have been lost by adverse

action suits, when non-Indians have encroached on Indian lands without the knowledge of Indian owners. Since most Indian decedents die without a will, the situation

has been made worse.

Frankly, protections against loss of land and with respect to estates which have

been afforded every other Indian tribe in the Country are denied in Eastern Oklahoma. H.R. 2880 responds to this situation with remedial action. In brief, it would

repeal the tangle of estate and property laws which apply to the Eastern one-half

of Oklahoma, and replace them with simple statements of law similar to the rest

of Indian country. Its cornerstone is a vesting of jurisdiction away from State

Courts, and placement of it with the United States Secretary of the Interior. Its provisions are too numerous to be set forth in detail in my testimony. However, we

have reviewed them, and we are in full support of the bill.

There is one cautionary note, however, which I must bring up. Under current law,

records pertaining to land and descent and tribal status are maintained by the Five
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Tribes, under contract with the Department of the Interior. We receive support

under our contract for this activity, though the amount received has been insufficient in the past and has had to be augmented by the Choctaw Nation. Under current law, we are responsible for providing this information to Members of the Choctaw Nation and to descendants of Members or those on the original rolls of the

Choctaw Nation if they have one-half degree of Indian blood. In fact, we have been

supplying support to those of one-fourth degree descent for years. Under the new

legislation, however, the tribe will be expected to provide information to any descendant of a Member or of an original enrollee, regardless of degree of Indian

blood. This will be a substantial burden. This burden was recognized by the Congressional Budget Office, which, in their report published as part of the House Committee Report on the bill, found a need for substantial increases to the funds provided to tribes for these services. We hope we can rely on our friends in the Congress to see that such funds are provided in the future.

Mr. Chairman, that completes my testimony. I will be happy to answer any questions you may have on the bill.
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