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Trust reform bill gets another hearing
Wednesday, October 15, 2003

The Senate Committee on Indian Affairs today is holding its third hearing in two years on a complex and somewhat controversial bill to reform how Indian land is inherited.

With some simple goals in mind, Sen. Ben Nighthorse Campbell (R-Colo.), the chairman of the committee, has brought together a coalition of federal and tribal interests. But finding a way to reduce fractionation of Indian lands, while at the same time protecting the rights of tribal members and tribal governments, has proven a tough task.

The heart of the American Indian Probate Reform Act of 2003 is the creation of a uniform probate code. The Bush administration and tribal leaders agree that a single standard will eliminate bureaucratic hurdles and make the process simpler to understand. Currently, Indian allottees are subject to more than 30 state probate laws, creating confusion and leading to disparate treatment.

Various drafts of S.550, however, have included proposals that have alarmed both the federal government and Indian Country. Chief among them is the creation of a new class of land called passive trust for those who have documented Indian ancestry but cannot meet the membership requirements of a tribe. The Department of Interior would have a lessened responsibility for land held in this status.

At a hearing in May, the BIA and several inter-tribal organizations testified against the passive trust concept. Today, the Indian Land Working Group will again criticize the proposal as "purely litigation-driven" and one that lets the trustee off the hook to the detriment of Indian beneficiaries.

A draft of the S.550 circulated by Campbell's staff last week drops the passive trust concept in favor of provisions that would enable lineal descendants and "family members" to inherit Indian land. But the draft adds a new section addressing unclaimed property. Tribal leaders rejected a similar proposal the Bush administration advanced last year as part of the failed tribal-federal task force on trust reform.

The section, which Campbell is considering adding to the bill, would allow the federal government to purchase land owned by beneficiaries whom they cannot locate. The BIA would be authorized to deposit the money in an "unclaimed property" trust account and would be allowed to use the interest off the account to pay for the "administrative costs" of managing the Indian trust.

Some tribes support a reasonable unclaimed property program. But they say the BIA must make a genuine effort to obtain current information about Indian beneficiaries. The new section would require the BIA to post public notice before purchasing property. The BIA would have the option to sell the property to a tribe.

The draft circulated last week also included provisions to allow the "partitionment" of Indian allotments. The BIA would be allowed to sell partitions of "highly fractionated" lands if requested by a tribe or a landowner.

Partitionment would reduce fractionation of a single parcel by removing particular sections. But in the past, it has led to a widespread loss of Indian-owned lands, particularly in eastern Oklahoma.

In 2000, Congress passed amendments to the Indian Land Consolidation Act (ILCA) that tribal leaders say has led to widespread fear among landowners. The definition of "Indian" in the amendments prohibits lineal descendants with Indian blood but who aren't enrolled from inheriting land.

Due to numerous complaints, BIA hasn't "certified" the 2000 amendments. In May, a BIA official warned that Secretary Gale Norton would do that if the probate reform bill can't be passed by Congress this year or the next.

S.550 would again amends ILCA, which was first passed in 1983. The U.S. Supreme Court has struck down certain provisions of the law as unconstitutional because it allowed the BIA to consolidate Indian land without just compensation.

Today's hearing starts at 10 a.m. A live video feed can be accessed at http://indian.senate.gov.

Relevant Documents:
Witness List (October 15, 2003)

Get the Bill:
New S.550 Draft | S.550 As Introduced

Relevant Links:
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp
Office of Special Trustee - http://www.ost.doi.gov
Indian Trust: Cobell v. Norton - http://www.indiantrust.com