Africa and Aboriginal Tuesdays: Bush brings limited reform to trust land probate process

WASHINGTON - President George W. Bush signed the American Indian Probate Reform Act of 2004 into law on Oct. 27, marking the federal government's most ambitious effort yet to limit the fractionation of Indian trust land.

The bill, championed in Congress by the Senate Committee on Indian Affairs under its chairman, Sen. Ben Nighthorse Campbell, R-Colo., with assistance down to the last minute from Rep. Richard Pombo, R-Calif., chairman of the Resources Committee in the House of Representatives, attacks fractionation from several directions - a uniform federal Indian probate code instead of the state laws that now govern Indian probate activity, an exception to the federal code for tribes with their own probate codes in place, grants for estate planning assistance on reservations, land consolidation options for tribal members, continuation of a federal land ''buy back'' program, cancellation of the impracticable ''joint tenancy with right of survivorship'' clause of the Indian Land Consolidation Act (which the new law amends), greater flexibility for individuals and tribes to consolidate and acquire interests during the probate process, forced sale at probate (for fair market value) of interests in land of less than 5 percent, and opportunities for estate planning among heirs at probate as well.

Theresa Carmody, secretary of the Indian Land Working Group and a past master on trust land issues, said the new law puts a timely stop to the worst features of fractionation. Ultimately though, she added, the law's success will depend on improving some of the provisions it sidestepped for now - ''We're going to go back every year with technical amendments'' - and on funding appropriations from Congress.

Federal officials, on the other hand, focused on the good news here and now. Interior Secretary Gale Norton called it indicative of the Bush administration's commitment to trust issues. ''This measure is one of the pieces necessary for true trust reform.''

Dave Anderson, head of the Interior-led BIA, stressed the economic value of land consolidation as accomplished under the law as written. ''The federal government and Indian leaders have a mutual interest in promoting economic viability on lands that are rapidly becoming converted into an unmanageable mosaic of tiny interests due to fractionated ownership. This was one more step in the right direction.''

Ross Swimmer, the Special Trustee for American Indians at Interior, echoed Anderson, but with an eye on the administrative costs and burdens that would be lifted if fractionation can be scaled back: ''The ownership of many disparate, uneconomic, small interests has limited benefit in Indian country. It has been feeding an administrative burden that continues to drain resources and attention away from other beneficial Indian programs. This new law is a meaningful step in our effort to improve the quality of trust management services throughout Indian country.''

Sen. Tom Daschle, D-S.D., a co-sponsor along with Campbell and Sen. Craig Thomas, R-Wyo., said the legislation is long overdue. ''It will allow tribes to approach land probate with at once greater strategy and greater sensitivity to individual preference.''

The Indian Land Working Group decided to support the bill because it addresses the most pressing problems in fractionation, Carmody said. Above all, without the current amendment the Indian Land Consolidation Act would have disinherited multi-tribe heirs with a narrow definition of ''Indian'' - one-quarter blood quantum.

The 2004 law also quells the flight to fee patenting of trust land by tribal members who noted that ILCA defines Indianness, and thus heirship, by blood quantum. Fee patenting removes individual Indian land from tribal dominion and from trust. But at least it permits owners to designate heirs regardless of blood quantum, a crucial distinction given that inter-tribal and non-Indian marriage has reduced the tribal blood quantum in some families. For that matter, some Indians who have never had anything but tribal blood in their lineage won't submit their legitimacy to enrollment and its government-issued ''poodle papers.''

The Indian Probate Reform Act allows Indian trust landholders to designate heirs according to bloodline instead. When a trust landholder dies intestate, or without leaving a will, the new law allows bloodline inheritance to two generations out - a provision that gives tribes plenty of time to establish their own probate codes if they so desire (only eight had done so as of June 2004).

Charlie Colombe, president of the Rosebud Sioux Tribe and a longtime advocate of probate reform, emphasized the tribal role in probate under the new law, in testimony before the House Resources Committee: ''Virtually all tribes favor the enactment ... because it offers tribes and their members the chance to consolidate their land holdings while maintaining tribal jurisdiction and tribal ownership of their lands.''

But the new law also comes with problems, Carmody said. In the provision for forced sale at probate of interests less than 5 percent, ''Indian land is being diminished,'' she said. The provision is ''probably going to be legally challenged.'' The balancing opportunity for estate planning among heirs at probate is important, she agreed, but staff and resources to assist are inadequate. Likewise, she said the estate planning grants offered under the law could be applied to probate, but no funding has been allocated for that purpose.

The buy back pilot program at the Interior Department is operating outside the Code of Federal Regulations, she said, because Interior doesn't notify co-owners in an allotment that an interest in their land is up for purchase. In any case, Carmody added, tribes and individuals should be more involved in the pilot, so that funding eventually goes straight to tribes rather than to Interior.

Underlying every other challenge facing the law, Carmody said, is the state of land and title records. Probate officers and title examiners are sorely needed. Because they are so scarce and the government has failed in previous attempts to slow down fractionation, Carmody said, many transactions have been title-certified in error, under a standard later found in the courts to be unconstitutional, but never corrected on title documents. Many other transactions await title certification.

This article appears in Indian Country Today.

Jerry Reynolds

Tuesday, November 9, 2004