<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:89982.wais]
S. Hrg. 108-379
AMERICAN INDIAN PROBATE REFORM ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
S. 550
TO AMEND INDIAN LAND CONSOLIDATION ACT TO IMPROVE PROVISIONS RELATING
TO PROBATE OF TRUST AND RESTRICTED LAND
__________
OCTOBER 15, 2003
WASHINGTON, DC
89-982 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
S. 550, text of.................................................. 2
Statements:
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Lyons, Maurice, chairman, Morongo Band of Mission Indians,
Banning, CA................................................ 67
Matt, Fred, chairman, Confederated Salish and Kootenai
Tribes, Pablo, MT.......................................... 64
Nordwall, Wayne, director, Western Region for Bureau of
Indian Affairs, Department of the Interior, Washington, DC. 60
Nunez, Austin, chairman, Indian Land Working Group,
Albuquerque, NM............................................ 70
Oshiro, Lisa, directing attorney, California Indian Legal
Services, Washington, DC................................... 68
Appendix
Prepared statements:
Hall, Tex G., president, National Congress of American
Indians.................................................... 75
Lyons, Maurice............................................... 73
Matt, Fred (with attachment)................................. 82
Nordwall, Wayne.............................................. 96
Nunez, Austin (with attachment).............................. 106
Oshiro, Lisa................................................. 143
AMERICAN INDIAN PROBATE REFORM ACT
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WEDNESDAY, OCTOBER 15, 2003
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. Ben Nighthorse Campbell
(chairman of the committee) presiding.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. The committee will be in session.
We have been notified that we have stacked roll calls votes
at 10:40 a.m. Senator Inouye is probably not going to attend
this morning, so I am going ahead and start the hearing. I need
to tell everybody that because we have those stacked roll calls
votes more than likely we will not be coming back unless you
want to wait for several hours, and I do not think most people
would want to do that. I have another conflict, as well.
So we are going to take all the testimony and ask everyone
who is testifying to keep their statements down to about five
minutes or so. Most of the questions that Senator Inouye and I
have will be submitted in writing because of the very
abbreviated time that we have in the hearing this morning.
This past May this committee held a hearing on S. 550, the
American Indian Probate Reform Act of 2003. Yesterday, I
introduced a complete substitute to S. 550 that is based on
meetings and a dialog held across the Nation with many Indian
tribes since the May 7 hearing. The goal of S. 550 and the
substitute are the same--to stop the fractionation of Indian
lands and to help reconsolidate those lands. We hope this can
be done through a commonsense approach and commonsense changes
to the rules governing Indian probate.
[Text of S. 550 follows:]
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The Chairman. As an aside, the Capitol Police have also
notified us on two or three occasions that they have had
complaints from some of the Senators who have offices right
across the hall. When we leave today, please keep the noise
down in the hall.
I will start with our first witness today, Wayne Nordwall,
director of the Western Region for Bureau of Indian Affairs.
Please come up and start, please.
STATEMENT OF WAYNE NORDWALL, DIRECTOR, WESTERN REGION FOR
BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR,
WASHINGTON, DC
Mr. Nordwall. I am Wayne Nordwall, director of the Western
Region for the Bureau of Indian Affairs [BIA].
Mr. Chairman, I would like to thank the committee for its
continued interest in this matter. This is one of the most
critical issues that faces the Department at this point. It
also critically affects the lives and property of thousands of
Indians throughout the country. We are very grateful that the
committee has continued to work on this issue.
One of the things that we had hoped to do when we met in
May was to have a set of recommendations ready to submit before
the next hearing, but unfortunately because of the Bureau
reorganization, Trust reform projects, and trying to comply
with some of the Cobell issues, we have not done that. But we
have worked with the committee, the Indian Land Working Group,
and other people. I think we are moving forward on this thing.
We cannot emphasize how critical this issue really is. We
have all talked for years about the exponential growth of
fractionation. I think that is starting to begin to rear its
ugly head more and more on a weekly and monthly basis. I do not
have the graph with me, and I know you have seen it before,
where if you start in 1887 and you go up to 1920, 1930, 1940,
and 1950, this line showing the increase of fractionation is
relatively flat until you get to the 1960's, 1970's, 1980's,
and 1990's where it goes almost vertical.
We are at the point now where if we cannot correct this
problem within a decade or less, it may overwhelm us and we
will not be able to do anything with it. Our current computer
systems are at their maximum limit. At this point, we are
having to migrate our title data from the existing LRIS system
over to TAAMs title. We are trying to put that in nationwide.
The system that pays out many of the allottees is called
IRMS. That system is literally on the verge of collapse. It is
an old mechanical system that was developed in the 1960's. The
software is no longer supported. We have to develop another
system. Of course, this whole fractionation issue is literally
about ready to crush many of those systems. We have to do
something relatively soon.
In our testimony we have a couple of examples of the
problems that fractionation causes. I am just going to go
through a couple of others just because I thought they were
timely at this point to show this exponential growth.
In 1992, the General Accounting Office [GAO] did a profile
of land ownership on 12 highly fractionated reservations. One
of the findings that they found in here was that there were
80,000 discrete owners on this 12 reservations, yet there were
over 1 million fractional interests involved. I think many
times people do not understand how there can be so many
fractions when there is such a small number of Indians. For
instance, the reason this happens is one person may inherit a
one two-thousandths interests from his uncle, and then in a
separate probate a one five-hundredths interests from an aunt.
Then if the surface and the subsurface are split, then it
causes even more problems with fractionation.
We did not have the exact software that they used in order
to compile these numbers. We attempted to update this report
about 6 months ago as part of the pilot project to see how we
could make that a national program. We could not get a full 10-
year span because of the court injunction. Some of our computer
systems are still off-line. What we found was that the problem
has increased on those reservations from 1992-2000, it grew by
40 percent on those 12 reservations. We have 1,400,000
fractional interests on those 12 reservations.
In 1992 we also had a probate study where we went out and
tried to analyze the condition of the probate program. At that
point we found that there were approximately 6,000 cases that
were backlogged. We just did that same study again. Now there
are over 18,000 cases. As you can see, this exponential growth
is starting to grow.
I called the Rocky Mountain region before I left Phoenix
and asked them if they could send me an example of some of the
problems they are having. They have a Turtle Mountain public
domain allotment which is located off reservation. It is 80
acres. It is worth about $10,000. It is leased every year for
$240. Right now there are 60 pending probates on that
allotment. The average cost of a probate is $3,000. That is
$180,000 worth of probate on that one alone. There are 11 dower
interest holders, six life estates, 35 interests of passed into
fee. Once they go into fee we lose control. We have no idea who
the actual owners are at this point. There are 558 trust
interests. Even if we just figure the average cost of $150 per
account to maintain those, that is $83,000 just to maintain the
accounts on those 558 interests. When you add in the probate,
you can see the administrative costs far exceed the value of
the land. This is becoming a more frequent problem all through
Indian country.
We are still off the internet. I think sometimes people
tend to forget that. They send stuff and it bounces back. We
did not get the revisions to S. 550 until last night. I have
not had a chance to look at them. As soon as I get back we will
submit detailed comments on S. 550.
The Chairman. I would appreciate that.
Mr. Nordwall. One of the things that we were concerned
about in the original S. 550 is that it dealt solely with
probate. At this point there are issues that have arisen in the
implication of the 2000 amendments that require more than just
addressing probate. I think one of the things that was in the
original bill was a provision that said at the end of 3 years
the Secretary of the Interior is supposed to submit amendments
to correct any problems that have been identified. That was
taken out because everybody figured the Secretary had that
authority anyway. It has been three years. There are several
things that the Department is focusing on.
I will just go through some of the ideas that we have
discussed. We have a draft that we have been working with the
committee members and with the Indian Land Working Group. We
have looked at the California Indian Legal Services draft.
Everybody has spent time working on this. We do have a draft
floating around within the Department with some ideas. I will
just go through some of the ideas that are in there. Hopefully,
once we look at S. 550, rather than perhaps submit a
Departmental revision, we will just modify S. 550. It seems
that many of the things that we were concerned about are now
addressed in this bill.
The Chairman. We will address any further comments you have
when you give us those recommendations.
Mr. Nordwall. Fine. The first thing is that we agree that
there needs to be a definition of highly fractionated land. At
this point, because of the problems, we need to address them
differently than some of the ones that are less fractionated.
We have to expand the Secretary's partition authority. At
present, the existing statute authorizes the Secretary to
partition only if it is in the best interest of the Indians.
That has always been construed to mean economic best interests.
In other words, if you have an 80-acre grazing allotment in
North Dakota, and there are 80 owners, you cannot divide it and
give each one an acre because that acre has no separate
utility. There is no way in or out. It has no value.
What we want to do is to allow partition-in-kind. If
someone has a home site, you can partition it out and try to
deal with that and create a usable unit for each person and not
be focused on finance.
We also may want to consider is partition by sale. If you
wind up with an allotment with 400 owners, and 30 of them
decide they just want to sell and get out of it, right now it
is almost impossible to do that. We want to set up a procedure
to where they can, in effect, go in and petition the Secretary
and ultimately may be have a review by the Courts in order to
sell these things to either co-owners, third parties, or to the
tribes.
The other thing which was in S. 550, and is critical, is to
create a uniform Federal probate code. The existing reliance on
50 States is just not working, especially as these things get
more complex, and especially as more people wind up inheriting
land on different reservations in different States. We have
more and more circumstances where that happens.
Under our proposal, one of the big criticisms of the old
provisions is that it had very limited ability for people to
devise property to their wives and children. The 2000
amendments have the same problem. They limit who you can will
your property to. That ended up sending a shock wave through
Indian country with a lot of people coming in wanting to
convert their land to fee so they could will their property to
their non-Indian spouses and children.
What we have proposed is that in this probate code that
there be very liberal provisions for people who write wills. In
teste is a different issue. If somebody does not write a will,
then we think there has to be a limited class. We just cannot
have it open-ended so that it keeps fractionating indefinitely.
One of the other things that we think is critical is that
we have to have the ability to purchase these fractional
interests during the probate process. There are four or five
special acts that relate to particular tribes, where during the
probate process the tribe can go in and in lieu of that land
going to that owner, they can pony up the money and take that
land themselves. We think the Secretary and the tribe should
both have that authority. Again, the details of how that would
work are things we still need to work out.
Another critical issue is to come up with an expedited
probate process, particularly on small money estates. Right now
we have hundreds and hundreds of accounts that are less than
one dollar, and yet we still wind up having to probate them
through the normal probate process which costs thousands of
dollars. We want to come up with some sort of an in-house
administrative procedure to deal with these highly fractionated
small estates and not have a full-blown probate hearing.
One of the other issues that was discussed at length in the
2000 amendments and in the original act in 1984 was giving the
tribes the authority to probate these estates in tribal court.
They currently do not do that. They can draft a probate code
but it has to be probated by the Secretary. Again, one of the
issues that we are considering is allowing the tribes to
probate in tribal court. One of the big problems again, of
course, is: What do you do in those circumstances where a
person owns land on multiple reservations? Who has primary
jurisdiction? Will there be a split? We do not want people to
have to go through multiple probates.
We want to have the Secretary to perhaps have greater
authority under the land acquisition program. At present,
whenever we purchase land under the acquisition program, it
automatically goes to the tribe. In addition to the
fractionation, we have checkerboarding where we have fee land,
we have trust land, and we have tribal land. We think that
perhaps we should be able to sit down with the tribes, help
them work on a consolidation plan, and for those interests that
are within that consolidation area, to convey those to the
tribes as we do under the existing statute, but if they are
outside, sell them to co-owners or something else to
consolidate those interests.
Finally is the whole issue of whereabouts unknown and
unclaimed property. Again, we have thousands of accounts with
just pennies in them that we cannot locate the owner. Every
State in the Union has an unclaimed property statute where if
there is no activity in that account for a certain amount of
time, it goes into a fund. You post a notice in a local
newspaper. Every year you see these things come out. Then after
a certain number of years it just goes to the State fund. In
this case, we propose it go into the land acquisition fund.
The bottomline is that we have made much progress. The
committee has put much work into this effort. We appreciate
that. Again, we want to emphasize how critical it is that we
try to come up with a solution. One of the things that we are
concerned about and we are working with everyone to try to fix
as much as possible is to water the bill down, to be blunt.
The history of this initiative since the 1920's and 1930's
is that every time Congress attempts to put real teeth in the
bill, there are complaints in Indian country. Then it gets
watered down to the point where it is diluted and has no
effect. I do not think we have another opportunity to fix this
problem. Given the fractionation, if we do not fix it at this
point, within 8 or 10 years, this is going to become de facto
communal land. On any given day, no one is going to know who
owns the property. There will be hundreds of estates in probate
on any given day. We have to fix it.
There will be some hard decisions that have to be made.
Everybody will not be happy. Any time you draw up a set of
standards, draw a line, or set criteria, somebody is on the
wrong side. We realize that. What we think we have to do is
that we have to focus on the 99 percent of the problem. We may
not be able to address the problems of the 1 percent. But it
has to be fixed. Otherwise, the system is just going to
collapse.
I will be glad to answer any questions, Mr. Chairman. I
would like to submit my written testimony for the record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Wayne Nordwall appears in appendix.]
The Chairman. Thank you, Wayne. If you would get back to
the committee as soon as you have recommendations for us, I
would certainly appreciate it.
Mr. Nordwall. I have to go to Nashville to work on some
Cobell issues, but we will fax a copy of the bill back to our
Committee and start getting some comments for you.
The Chairman. Thank you.
I will submit questions to you in writing.
We will now go to the next panel which consist of Fred
Matt, chairman, Confederated Salish and Kootenai Tribes, Pablo,
MT; Maurice Lyons, chairman, Morongo Band of Mission Indians,
Banning, CA; Lisa Oshiro, directing attorney, California Indian
Legal Services, Washington, DC; and Austin Nunez, chairman,
Indian Land Working Group, Albuquerque, NM.
As I told Mr. Nordwall, we have a very tight agenda this
morning. I know that I am going to have to leave. If another
Senator is here, we will let him go ahead and chair the
hearing. If we do not finish before I have to leave, I am going
to ask staff to finish chairing the hearing.
Let us start in the order that I mentioned your name.
Fred, go ahead.
STATEMENT OF FRED MATT, CHAIRMAN, CONFEDERATED SALISH AND
KOOTENAI TRIBES, PABLO, MT
Mr. Matt. Chairman Campbell, with what you have said, I
will be as brief as I can. My name is Fred Matt. I am the
chairman of the Confederated Salish and Kootenai Tribes of the
Flathead Nation. On behalf of our tribal council, I am pleased
to provide testimony regarding the substitute bill for S. 550
entitled, ``American Indian Probate Reform Act of 2003.''
I will summarize the most important points of my testimony.
Before I get into my comments, I would like to say, Chairman
Campbell, that I ran into a good friend of yours a couple of
days ago, Doug Allard. I would not be a very popular person if
I did not say hi and send his regards. I saw him the other day
at one of the most popular gathering places that we have in
Western Montana, WalMart.
The Chairman. Tell him hello for me. When I had a life, I
was a jeweler and I made his wedding rings. He might have told
you that.
Mr. Matt. He just went through cancer surgery. He is
recovering very well. He looked very good. I would like to send
his regards.
The Chairman. Thank you.
Mr. Matt. We just hosted the 13th annual Indian Land
Working Group Conference in Flathead. We are pleased that David
Mullin was there from your staff on behalf of the committee.
The conference was a great success. The tribes appreciate the
efforts this committee and the staff in attempting to correct
the fractionated interest problems of Indian land ownership,
while also endeavoring to retain the trust status of property
on reservations.
We support the objectives of the Indian Land Consolidation
Act Amendments of 2000, ILCA, and recognize that some
amendments are necessary to clarify this complex legislation.
Foremost, we encourage the committee to seek enactment of these
amendments prior to the Secretary's certification of notices as
required by ILCA which triggers the 1-year effective date.
The Flathead Reservation was created in 1855 by the Treaty
of Hellgate. CSKT ceded over 22 million acres of tribal
homelands and retained 1.3 million acres located in
Northwestern Montana. We have always been, and remain, a part
of that land. Initially we were successful opposing the General
Allotment Act of 1887. However, competition for the land from
outside business and political interests forced the passage of
the Flathead Allotment Act in 1904.
Pursuant to that act and others, a total of 3,380
allotments were made to individual Indians. More devastating to
their tribal self-governance and the economic base was the
opening of the reservation to homesteading. The allotment era
reduced tribal government ownership to approximately 30 percent
of the total reservation.
In 1934, Congress enacted the Indian Reorganization Act for
various reasons including the end of the devastation caused by
the allotment era. We were the first tribe in the United States
to organize under IRA, and one of the first tribes to begin to
reacquire lost lands. We have come a long way since the 1930's,
including being one of the first self-governance tribes. We
have now compacted all land management functions, including
land titles and records. We have also reacquired land on the
Flathead Reservation to the point where nearly 70 percent of
the lands are back in the hands of the tribe. We have provided
land status maps with our written testimony to show what this
has done to our reservation.
ILCA assists our goals for land restoration. However,
currently the legislation, although not certified and,
therefore, not in effect right now, is having the unintended
consequences of pushing Indian land owners to request fee
patents for their trust property. Indian land owners are
fearful that they may not be able to leave their trust property
to family members.
In my case, I own seven acres and a home that is in trust.
My wife is a non-Indian. Some of my children are unenrolled.
Some of them are enrolled members. It is a long story. I will
not share that with you now.
The Chairman. That is okay. That is becoming more of a
common story in Indian country everywhere.
Mr. Matt. If Section 207 of ILCA was effective in my
situation, my wife and my unenrolled children would inherit the
life estate and my enrolled child would inherit the land and
the title to the home. This is not my desired outcome.
The legislation needs to allow for descent of property to
rightful heirs by will. In addition, if the land should acquire
fee status due to inheritance by a non-Indian, I would first
support the tribal option to keep the property in trust. It is
the same option tribes exercise when a land owner now requests
a fee patent by an application. Furthermore, if the Indian land
owner does not make a will, the stricter rules of inheritance
should apply. However, Indian land owners need the ability to
estate plan.
Again, we need to balance our membership's needs with our
self-governance. S. 550 attempts to provide that balance. The
potential of Indian land owners on our Reservation who feel
forced to prematurely transfer their interest from trust to fee
status, poses a threat to our self-governance and tribal
jurisdiction.
Next, we need to know the definition of Indian. This
legislation is an opportunity to clarify the definition. We
believe that it would be best to use the definition contained
in the Indian Health Care Improvement Act. However, if S. 550
should broaden the definition of Indian, the legislation should
also recognize the tribe's right to restrict the inheritance
through an enactment of the tribal probate code.
S. 550 is an opportunity to establish the framework for
probate reform and still allow tribes to enact a probate code
of their own.
Last, CSKT needs access to acquisition funds for
consolidating fractionated interests. The BIA has interpreted
the pilot acquisition program, as authorized by Congress, not
to apply on reservations where programs are operated by the
tribes. This discrimination against tribes who utilize the
Indian self-determination makes no sense. CSKT could eliminate
nearly 3,000 undivided land interests with such funding. CSKT
has identified 200 tracts of lands with 50 percent tribal
ownership. In May 2003, CSKT submitted a proposal to the
Department requesting funding in the amount of $6.5 million to
complete such projects. CSKT suggests that the Committee either
amend the land acquisition program so that all tribes can
participate or allocate funding for tribes operating under the
Self-Determination Act.
In addition, when ILCA, is implemented, we will also need
funding for training and for estate planning if the amendments
are going to be successful. Education about fractionation is
probably a key factor for our membership. Since our membership
received the BIA notice to Indian land owners in August 2001,
our tribal council has committed to keeping our membership
informed about this issue.
There are numerous items in this legislation. CSKT has
addressed these in our prepared written testimony. We believe
that through the combined efforts of land acquisition, probate
reform, and estate planning education, we will eventually
manage land fractionation on the Flathead Reservation.
We look forward to working on the technical issues
surrounding S. 550 and hope to provide additional comments in
the future. Thank you again for allowing me to testify. I would
like to submit my written testimony for the record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Fred Matt appears in appendix.]
The Chairman. Thank you, Fred. What you have talked about
of leaving land to your children and descendants that they
might not be enrolled is an important point. I do not know if
you have read the new version of S. 550. I understand there is
a section that hopefully will take care of that problem by
allowing Indian people to leave the land to their direct
descendant with the tribal first right-of-purchase if that
descendant decides to sell it. We are floating that idea with
tribes. That might be the compromise that works for you.
We will now go to Chairman Lyons. Thank you for being here.
STATEMENT OF MAURICE LYONS, CHAIRMAN, MORONGO BAND OF MISSION
INDIANS, BANNING, CA
Mr. Lyons. Thank you, Chairman Campbell, and Vice Chairman
Inouye for inviting Morongo to testify today. Our position is
spelled out in our written statement. In addition, I would like
to make a few points.
Last year Chairman Campbell asked the Department of the
Interior to delay implementation of the amendments to the
Indian Land Consolidation Act. This was to allow Congressional
review of concerns and issues that have arisen in Indian
Country. To date, the Department of the Interior appears to
have honored your request and we are thankful of their
willingness to do so.
The proposed amendments will protect our members' rights of
inheritance. Because of the way the 2000 act now defines
Indian, the Morongo Band is faced with having to substantially
reverse or revise our membership criteria in order to make
possible for some of our members to pass the interest and Trust
allotments to their heirs, to their children.
Arbitrarily revising our membership criteria will only
cause further unfairness, divisiveness, and confusion. We
should not be forced to amend our membership criteria in order
to protect the right of our children to inherit family lands.
The amendments to S. 550 provide a solution to the problem we
have in California.
I was reading a book that I think fits right in with what
we are doing here today. It was about George Washington and the
Seneca Indian chiefs. They were talking about the land that
they had at that time. George Washington was talking to Chief
Cornplanter, and Chief Cornplanter told him: ``The land we live
on, our fathers received from God. They transmitted it to us
for our children. We cannot part with it.'' President
Washington told him: ``In keeping with the spirit, the
Government will never consent to your being defrauded, but will
protect all your just rights.''
That is something.
Thank you, Mr. Chairman, for hearing my testimony today.
Your efforts today will help the promise George Washington
originally made to America's first people. I would like to
submit my written testimony for the record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Maurice Lyons appears in appendix.]
The Chairman. Thank you.
George Washington may have had very good intentions toward
Chief Cornplanter, too. It is too bad that the people who
followed him did not have as good intentions, very frankly.
Ms. Oshiro? Where is your office, by the way? Sacramento?
Ms. Oshiro. California Indian Legal Services has offices
throughout California. We also have an office here in
Washington, DC, where I work.
The Chairman. I see. Thank you.
STATEMENT OF LISA OSHIRO, DIRECTING ATTORNEY, CALIFORNIA INDIAN
LEGAL SERVICES, WASHINGTON, DC
Ms. Oshiro. Thank you, Chairman Campbell, for inviting
California Indian Legal Services to testify before you on S.
550. We come to you wearing various hats. First, California
Indian Legal Services represents tribes and individuals
throughout the State of California. One of our primary purposes
is to protect the very limited and precious trust and
restricted lands in California.
S. 550, as Chairman Lyons has said, includes some
amendments to the definition of Indian that are very critical.
I want to point out that there is a specific definition for
California Indians that is very important because of the status
of some of our tribes that were terminated by acts of Congress
and have not yet been restored. Congress has, through various
acts, allotted lands on the public domain and national forests
that those members would like to continue to pass on to their
descendants. They need to be recognized as Indians, although
they are not members of a federally recognized tribe. The
broader definitions under S. 550 are helpful all throughout
Indian Country. We applaud your efforts in amending that.
I also come here wearing the hat of one of the participants
on the S. 550 Task Force. California Indian Legal Services came
together with the National Congress of American Indians, the
Indian Land Working Group, and various tribal representatives
last November in support of your bill, S. 1340, as we were
trying to amend that and get that passed. At that time, we were
specifically addressing the definition of Indian.
When you introduced S. 550 in March, we brought those
people together, as well as additional advocates and
representatives from throughout Indian Country. We have a very
long distribution list. We have been one of the primary
organizers of this informal S. 550 Task Force. We have been
very appreciative of the participation of representatives from
the Department of the Interior, from your staff, and from
Indian tribes, Indian organizations, and Indian land owner
associations. We have come together to try to address this very
difficult and complex problem where we know that we had to make
some tough decisions.
As Wayne Nordwall was pointing out, we are not able to
reach consensus on everything. Not everyone can have their
ideal bill. But we have been engaged in many discussions and
deliberations about what we need to do to aggressively address
this problem that is pervasive throughout Indian country. It
poses a problem to the productive use of these lands, as our
elders want to put these lands that they have fought so long
and hard to protect to productive use for their current
generation and for future generations.
We have been very happy to be participating with this
informal S. 550 Task Force to bring together the collective
knowledge, experience, wisdom, resources, and vision of all of
these groups. We need a solution, and we need that solution
now. We recognize the problems that the Department of the
Interior has in managing these highly fractionated parcels. We
are happy to really hear and echo the various provisions that
were expressed in Interior's desire for and support for highly
fractionated lands, partition, the Uniform Probate Code, the
ability for individuals to freely devise their interests. It
would also provide estate planning services.
That is where I switch to my next hat. In providing
education and estate planning services throughout Indian
country, we are encouraging Interior to also consider utilizing
the services of Indian Legal Services throughout the country,
which has long been recognized as the most effective and
efficient model for the delivery of quality legal services
throughout Indian country. There are programs, such as in the
State of Montana, that do not receive sufficient funding to
provide this type of estate planning services. This is another
measure to address fractionation and promote consolidation in
individual estate planning and family estate planning, to be
able to provide that education and legal services to our
communities. It also provides the confidential setting as well
as other protections of the attorney/client relationship.
Before closing, I would like to thank you for your bill and
for the commitment of your staff and for their availability,
accessibility, and their participation in all of our meetings
and discussions. This has been, as some people have pointed
out, rather historic for all of these different interests to
come together and work collaboratively and make those hard
decisions.
In conclusion, we look forward to continuing our work with
you in the coming days and weeks. There is an urgent need to
pass this bill, S. 550, before the 2000 amendments are put into
effect. We are doing this work because we must honor--and we
would like to honor--the elders and their ancestors who have
fought so long and hard to protect these precious lands so that
they can rest with the comfort and the assurance that they can
pass these lands on to their children and future generations,
to continue to protect them, as well as to consolidate them,
and put them to productive use.
Thank you. I would like to submit my written testimony for
the record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Lisa Oshiro appears in apendix.]
The Chairman. Thank you for the nice compliment of the
staff. They have worked very hard on this bill. They work hard
on all bills, but they worked particularly hard on this bill.
You certainly brought up the difficulty, the complications,
about identifying who is Indian anymore. I can tell you that 50
years ago it was easier. The community was small. You tended to
know families or you knew how it was as the community grew.
There was intermarriage. More and more people are being
reinstated as Federally-recognized tribes. I cannot tell. If
they tell me they are, I take their word for it. It is getting
more and more difficult all the time to define who is Indian,
particularly when each tribe sets their own criteria.
Thank you.
Mr. Nunez, you are the chairman of the Indian Land Working
Group from Albuquerque; is that correct?
Mr. Nunez. Yes, sir.
The Chairman. Please go ahead.
STATEMENT OF AUSTIN NUNEZ, CHAIRMAN, INDIAN LAND WORKING GROUP,
SAN XAVIER DISTRICT, TOHONO O'ODHAM NATION
Mr. Nunez. Thank you very much, Chairman Campbell. The
Indian Land Working Group thanks the committee for its
invitation to appear and provide testimony concerning the
proposed amendments of the Indian Land Consolidation Act.
I would like to state at the outset that we are very
pleased with the changes that are contained in your bill. We
look forward to its passage. I would like to make some
additional comments from my prepared statement.
ILWG supports the implementation of a steady, long-term,
adequately funded program of tribal and individual
consolidation and acquisition of fractional interests to avoid
loss of trust status of allotted lands; adequate land owner
access to information about their lands; elimination of
experimental estates; and land that have no foundation and no
law; amendments that are written in a style comprehensible to
the users; and true consultation with interests directly
affected by trust reform measures.
ILWG further supports the ability of land owners to engage
in owner management of parcels, if all owners agree; and a well
thought-out and carefully structured family and private trust
pilot project that protects against overreaching by third
parties and preserves trust status; secretarially-maintained
recording system for tribal inheritance codes which are
encouraged under ILCA; and the establishment of missing persons
investigation systems with appropriate unclaimed property
provisions tailored for small accounts and possibly smaller
highly fractionated land interests.
In conclusion, ILWG suggests that S. 550 substitutes be
streamlined to enact those provisions that are critical to
repairing the problems created by ILCA 2000, and the numerous
provisions about which there is general consensus.
Thank you. I would like to submit my written testimony for
the record.
The Chairman. Without objection, your testimony will be
placed in the record in its entirety.
[Prepared statement of Austin Nunez appears in appendix.]
The Chairman. Thank you, I appreciate your comments.
I am going to submit all of my questions to be answered in
writing, if you would. Senator Inouye will probably do the same
thing.
Without objection, so ordered.
We will keep the record open for 2 weeks for any additional
comments that staff would ask or if you have some further
recommendations of how we can make S. 1721 work. I would
certainly appreciate it.
Those in the audience, too, if you have any comments to
submit, we would appreciate that, too.
The Chairman. With that, the hearing is adjourned.
[Whereupon, at 10:40 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Maurice Lyons, Chairman, Morongo Band of Mission
Indians
Thank you Mr. Chairman and Vice Chairman Inouye for inviting the
Morongo Band of Mission Indians to provide you with our testimony
concerning S. 550, the American Indian Probate Reform Act of 2003, a
bill to amend the Indian Land Consolidation Act. As you may recall, I
testified before this committee in May of last year to encourage the
Senate to adopt legislation to amend ILCA and I come before you today
to do the same.
In 2002, Chairman Campbell asked the Department of the Interior to
delay implementation of certain provisions of the Indian Land
Consolidation Act Amendments of 2000 [the act] pending further
Congressional review of concerns and confusion that have arisen in
Indian country about the consequences--both intended and possibly
unintended of those amendments. To date, the Department appears to have
honored your request and we are thankful for their willingness to do
so.
As I relayed to you in May of last year, the 2000 act prompted the
Department to send out a series of notices to individual tribal members
alerting them of expected changes to the rules of intestate succession
and inheritance that will constrain the devising of interests on trust
and restricted land to non-Indians. These notices had an immediate
detrimental impact on our tribe's ability to plan for the future and
manage our tribal lands effectively and our tribal members' ability to
pass their land down to their children and grandchildren.
While the Department has to date been willing to not implement the
amendments from the 2000 act, we know that they are not able to defer
this action forever. To this end, we encourage you to act swiftly on
this matter.
The Morongo Reservation is located approximately 17 miles west of
Palm Springs. Our tribal membership enrollment is 1,200 and the
reservation comprises approximately 33,000 acres of trust land, of
which 31,115.47 acres are held in trust for the tribe, and 1,286.35
acres are held in trust for individual allottees or their heirs. We are
continuing to make inquiries relative to the number of Morongo members
that have an interest in trust allotments on our reservation and other
reservations. We are also interested to learn how many non-Morongo
members hold an interest in trust allotments on the Morongo
Reservation.
We at Morongo share the desire of Congress to preserve the trust
status of existing allotments and other Indian lands, and we appreciate
this committee's hard work in 1999 and 2000 to strike a balance in the
Indian Land Consolidation Act Amendments of 2000 between the individual
property rights and interests of allottees and the sovereign rights and
interests of tribal governments. However, we now recognize unintended
consequences from this legislation have come about.
For example, because of the way that the 2000 act now defines
``Indian,'' the Morongo Band is faced with having to revise its own
membership criteria in order to enable some of our enrolled members to
pass their interests in trust allotments to their own children.
Congress must understand that we do not feel revising our membership is
a solution. The fact is that changing the membership is a very divisive
matter for tribal governments and their members. We should not be
forced to amend our membership criteria in order to protect the right
of our members' children to continue having interests in their family
lands.
S. 550 includes a solution to the problem we face in California.
Specifically, the bill protects those individuals having an interest in
the ownership, devise, or descent of trust or restricted land in the
State of California, as long as that person is a descendent of an
Indian residing in the State of California on June 1, 1852 This will
allow members of my family who may no longer be eligible for membership
in the Morongo Tribe--but are most definitely American Indians--to
carry on the traditions of our family on our lands.
Due to the unique history of reservations and rancherias in
California, this definition highly warranted. Mr. Chairman, as you
know, tribes which exist today were largely cobbled together based on
the geographic proximity of native people. For example, the Morongo
Band of Mission Indians is made up from people who descended from
Cahuilla, Chemehuevi, Luiseno, Serrano and many others. These people
all lived in the same area and where combined into the Morongo Indian
Reservation. This situation is shared by many of the tribes located in
California and is the basis for a much needed definition for those
native people who live California.
Mr. Chairman, thank you for your time and willingness to hear about
the concerns of the Morongo Band of Mission Indians.
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