Passive trust faces test in new Congress

FROM THE ARCHIVE

Facebook Twitter Email
MONDAY, NOVEMBER 25, 2002

Legislation to unify Indian land inheritance policies, and create a controversial status of trust ownership, died this year despite last-minute lobbying by tribal organizations.

The House adjourned on Friday without action on a host of pending bills. The GOP-led chamber's only business, to the chagrin of Democrats who wanted to open debate on unemployment insurance benefits, was clearing the Department of Homeland Security.

That left the Native American Omnibus Act of 2002 off the table until the 108th Congress. It would have to be reintroduced to be reconsidered under the new Republican leadership.

As originally drafted, the bill was largely uncontroversial because it contained corrections to existing laws or authorized extensions of ongoing programs. But in the final days of the Senate, other provisions were attached to it, prompting at least one prominent lawmaker to question the wisdom of such activity.

In a floor statement made before the Senate adjourned last Wednesday, Sen. John McCain, a member of the Senate Indian Affairs Committee, said he was discouraged from pushing his own trust reform bill due to lack of agreement between the Department of Interior and tribal leaders. "At the same time, several efforts ensued by the department and some tribal representatives to add legislative riders to appropriations bills or other must-pass legislation," he noted.

"These were efforts I could not support as I continue to abide by the principle of legislating through the open processes of the Congress."

Probate reform was a considered "must-pass" by the National Congress of American Indians and some segments of Indian Country, including the California Indian Legal Services, a non-profit legal organization. They said the bill would help prevent the loss of Indian lands.

The primary goal is to create one inheritance code for Indian Country. Currently, Indian landowners are subject to 33 state probate laws, leading to unequal treatment, said tribal leaders and Bush administration officials.

A hearing to discuss the proposal was held in May, with most the testimony centering on the definition of "Indian" under the act. Unless a more expansive definition was adopted, tribal leaders said thousands of landowners would be hurt. The Bush administration opposed the change.

Out of the debate came the "passive" trust concept for those landowners who are Indian but lack tribal membership, for whatever reason. The Interior disclaims all fiduciary responsibility for these parcels of land, thus freeing the department of any duty to account for funds generated from the land or perform any of the functions that are at the heart of the ongoing Cobell lawsuit.

Despite the significant change, no further public discussion was held on the passive trust proposal, which was drafted behind closed doors. Tribal leaders were nonetheless encouraged to lobby on its behalf in the closing days of the Congressional session. At NCAI's annual meeting earlier this month, opponents questioned the effort but were unable to alter NCAI's stance.

If the bill becomes law, the Bureau of Indian Affairs would continue to be responsible for probate of passive trust land. The agency currently has a backlog of more than 20,000 probate cases.

Get the Bill:
Indian Programs Reauthorization and Technical Amendments Act of 2002 (S.2711)

Relevant Documents:
Written Witness Testimony (5/22)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Trust Reform, NCAI - http://www.ncai.org/main/pages/
issues/other_issues/trust_reform.asp