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Tribes back improvements in probate reform bill
Thursday, October 16, 2003

Congress has one last chance to reform how Indian land is inherited before the system descends into complete chaos, a Bureau of Indian Affairs official warned on Wednesday.

Past efforts to change the probate process have failed, the director for BIA's Western Region said. Wayne Nordwall, a career bureaucrat, told the Senate Committee on Indian Affairs that Indian land will become worthless unless Congress acts now.

"I don't think we have another opportunity to fix this problem," Nordwall testified.

According to Nordwall, the BIA can't keep up with the increasing fractionation of Indian allotments. As land is passed onto successive generations, the problem grows more complex. He cited a 40-acre tract with 505 owners that costs the BIA more to manage than it is reportedly worth.

"If we don't fix it at this point, within eight or 10 years this is going to become de facto communal land," Nordwall said. "On any given day, no one is going to know who owns the property."

The testimony came on a bill that would create a uniform probate code for Indian Country. Federal officials and tribal organizations back a single standard in order to stem fractionation and make the system easier to understand. Currently, Indian allottees are subject to more than 30 state probate laws.

The sides differ on the exact details of the code and how the process should be carried out. The Bush administration is lobbying for changes that would give the Department of Interior greater authority to take unclaimed property, partition Indian lands, close Individual Indian Money (IIM) accounts and consolidate ownership.

"Everybody won't be happy" with the changes, Nordwall admitted yesterday. Previous proposals have been so "watered down" by Indian Country that they have had little impact, he said.

Tribal leaders are pushing for a bill that would strengthen their sovereignty. D. Fred Matt, chairman of the Confederated Salish and Kootenai Tribes of Montana, called for provisions to allow probates to be processed by tribal courts, not the BIA, and said tribes, not the BIA, should have a first right to purchase fractionated parcels.

Other tribal witnesses joined Matt in calling for a clearer definition of "Indian" that would strengthen the federal government's trust responsibilities. The definition contained in the 2000 version of the Indian Land Consolidation Act (ILCA) is so restrictive that the BIA has fewer beneficiaries to worry about.

Maurice Lyons, chairman of the Morongo Band of Mission Indians of California, said his own relatives would not be allowed to inherit land unless the definition is changed. "We should not be forced to amend our membership criteria in order to protect the right of our children to inherit family lands," he told the committee.

The latest version of the American Indian Probate Reform Act of 2003 includes a definition that satisfied tribes. Lisa Oshiro of the California Indian Legal Services and Austin Nunez of the Indian Land Working Group said it would protect the rights of landowners.

The tribal witnesses urged the committee to act soon but for different reasons than the BIA. They fear the BIA will certify the 2000 act and cut off thousands of Indians unless the changes are made into law.

The restrictive definition has "generated fear among our membership" Matt testified. He said landowners on the Flathead Reservation are willing to take their land out of trust just so they can pass it onto the family members of their choosing.

Yesterday's hearing was cut short by Sen. Ben Nighthorse Campbell (R-Colo.), who had a tight schedule to keep. For that reason, many of the complaints that have been raised by tribes were not aired during the 40-minute proceeding.

But Oshiro and Nunez both said their organizations were happy with the changes that tribes have helped draft in the past few months. Nunez's written testimony documented some ongoing concerns with provisions for which tribes have not developed consensus.

On Tuesday, Campbell introduced the latest changes as S.1721. It follows a draft his staff released last week.

S.1721 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.

Last year, some tribal organizations launched an 11th hour attempt to pass an earlier version of the ILCA amendments that included a new status of land called "passive trust." S.1721 does not include the concept.

Relevant Documents:
Witness List (October 15, 2003)

Get the Bill:
S.1721 | 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