DRAFT
Michele F. Singer, Director
Office of Regulatory Affairs and Collaborative Action
Office of the Assistant Secretary – Indian Affairs
1001 Indian School Road, NW, Suite 312
Albuquerque, NM 87104
Dear Ms. Singer:
RE: Cobell Trust Land Consolidation Program Comments
For the past ten years the Indian Land Tenure Foundation (ILTF) has worked closely with Indian nations
and Indian people to increase the effective management of their lands as well as to re-establish Indian
ownership of all lands within the original reservation boundaries. ILTF has worked with over 200 tribes,
their staff and many thousands of Indian landowners on numerous issues related to land ownership and
management including acquisition, fee-to-trust, rights of way, leasing, and intergenerational transfer
through estate planning, to name a few. ILTF has been ever vigilant to focus our work on the issues of
importance to the Indian land community.
Similarly, the staff of ILTF has worked with many of the field staff of the Bureau of Indian Affairs (BIA)
and the Office of the Special Trustee (OST) to resolve issues related to Indian land, collect data and
information, and disseminate this information to Indian people. ILTF served as the contractor to the
Department of Interior (DOI) for the Estate Planning and Will Writing Pilot Project under the American
Indian Probate Reform Act of 2004. The Pilot Project was an extension of the will writing programs the
Foundation had supported for the prior three years at a cost to the Foundation of several million dollars.
Tribal, BIA and OST staffs were integral in assisting ILTF in beginning these early will writing programs.
The same staffs have also been important contributors in providing information for several editions of
the Foundation’s Message Runner publications.
ILTF volunteer leadership and staff began closely following the Cobell lawsuit long before ILTF as an
organization came into existence. It was clear from the very beginning that the lawsuit would have a
significant effect on Indian landowners and land—one way or another. Little did we expect the case
would go on for 15 years or end in a settlement that would include a relatively large amount of funds for
reducing fractionation of land titles in Indian Country. ILTF applauds the parties for including this
provision as it addresses issues of significance for Indian nations, Indian people and the federal
government. It has been well documented that highly fractionated land title results in underutilization
of a valuable resource for the economic, cultural and environmental wellbeing of Indian nations and
individual landowners. Furthermore, the ever increasing administrative burden brought on by the
growth in the number of undivided interests in Indian land is not sustainable within any reasonable
budget of DOI.
The reduction of fractional interests in Indian land is of paramount importance. However, I am sure you,
as a representative of the trustee for Indian nations and individual landowners, will agree that the
resolution of this problem must be done with the best interests of the tribes and Indian people in mind.
To that end ILTF offers the following comments on the issues surrounding the implementation of the
Cobell Trust Land Consolidation Program (CTLCP).
Basic Principals and Assumptions
The following statements summarize the history and issues that provide the backdrop and shape ILTF’s
positions on the implementation of CTLCP.
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Indian nations are sovereign nations and therefore retain the ability and right of selfdetermination. This was affirmed in the Self-Determination Act of 1975 and has provided the
direction for the trust relationship between tribal nations and the federal government over the
past 30 years.
Fractionated title of Indian trust land is a product of policies and actions by the federal
government dating back to the earliest allotments and clearly codified in the General Allotment
Act of 1887 and subsequent Indian trust probate law. The federal government should bear the
cost of resolving this issue and hold harmless the tribal nations and individual landowners in the
process.
The 1928 Merriam Report to Congress first detailed the problems that were arising from the
management of trust land, particularly fractionated land title. With the modest exceptions of
tribal programs (Rosebud Sioux Tribe’s Tribal Land Enterprise, for instance) and the Indian Land
Consolidation Act of 1983 (ILCA), this will be the first large scale effort to resolve the issue.
Trust land allotments with fractionated titles have been and will continue to be a significant
impediment to economic, cultural and social development of Indian reservations; managing land
in an environmentally prudent manner is also more difficult.
The ever increasing number of undivided trust interests and the associated Individual Indian
Monies (IIM) accounts presents an enormous administrative burden for the federal government.
Without reduction in the number of fractional interests, the potential liabilities for the trustee
will remain substantial and increase under current budgetary constraints.
There is little evidence to suggest that the current Indian Land Consolidation Program (ILCP)
took tribal priorities into consideration in purchasing land title interests. Further, the financing
of purchases by the program was tantamount to a loan to the tribes in the program.
Not every Indian landowner wants to part with his or her interest in reservation land. There are
many reasons for this and the more local the program is, the better the chance to make
accommodations for these individuals.
Having some amount of reservation land available for private use by Indian people is desirable
for economic, cultural and social reasons. This may be accomplished by an Indian nation in
several ways such as leasing, assignment or ownership.
Specific Recommendations
The following sections contain the recommendations that ILTF would suggest for implementing CTLCP.
These recommendations have been developed over a period of time and through several different
methods. In 2004, ILTF commissioned two writers to provide a review of the pros and cons of the ILCP
Pilot Project; ILTF published their work as No Quick Fixes. Through the Foundation’s work with tribal
staff over the past 10 years, we have become intimately aware of the issues the tribes have faced in
dealing with highly fractionated title of trust lands. And finally, in September, 2011 at the suggestion of
the Lac du Flambeau chairman, ILTF convened a meeting of tribal land staff and elected leaders from 25
geographically dispersed tribes. We anticipate that you will hear directly from each of those tribes as
well as many others, but clearly the comments they provided weigh heavily in the Foundation’s
recommendations.
Each Indian nation with allotted trust land should be able to choose whether or not their tribal nation
will run the CTLCP on its reservation.
The records show that DOI consultation panels have heard this from virtually every tribal leader who
provided comments during the consultation sessions. In addition, there was near unanimous agreement
among the tribes represented at the ILTF meeting. To be very clear, this should be an Indian nation
decision, not a BIA process to decide which nations are “qualified” and not a blanket declaration that all
Indian nations will operate the program.
This particular recommendation goes to the heart of sovereignty and self-determination of Indian
nations. ILTF staff have talked with many tribal land staffs that have been working with their elected
officials to develop consolidation and acquisition priorities and plans. These Indian nations are clearly
setting their own courses of action and in most cases committing their own scarce resources to fulfilling
their plans. This is a perfect opportunity for DOI to be supportive of tribal self-determination through
action rather than rhetoric.
At the same time, it is an opportunity for the federal government to further the evolving trust
relationship to even higher levels of tribal self-determination while still accomplishing its own goal of
reducing the number of fractional interests. Indeed, the $1.5 billion available for land interest purchase
will not be sufficient to eliminate all fractionation of trust land titles. By providing the Indian nations the
foundational resources for reservation-based consolidation programs, federal funds will leverage local
political will and other financial resources that will extend the funds of the settlement. It is not hard to
envision how the tribal programs could work with tribal members to leverage other resources or
consolidate holdings through trades, leases or assignments without purchasing every interest, and the
tribal programs would be on solid footing to continue beyond the ten-year period. This would also
eliminate the need for a lengthy consultation process over the “areas of tribal preference” initially and
would allow for adaptation of the local programs as conditions change over the ten-year period.
In our reading of 25 USC 2212(b)(3)(C) there appears to be clear authority for the Secretary to enter into
the necessary agreements with tribal nations to fully carry out land consolidation program functions.
Indian nation priorities for acquisition of fractional interests of trust lands should control every aspect
of the Cobell Trust Land Consolidation Program implementation.
Everything that ILTF has heard and seen in Indian Country suggests that implementation of the CTLCP
must place a priority on the self-determination of each Indian nation that was allotted regardless of
which entity the Indian nation chooses to have administer the program on its reservation—the tribal
nation, a consultant/contractor, or the BIA’s ILCP. In keeping with tribal sovereignty and selfdetermination, the only acceptable broadly applied constraints on the CTLCP are that the funds be used
to consolidate and reduce the number of undivided interests in trust allotments on each tribe’s
reservation and the progress toward those ends should be regularly reported. Beyond that, the
individual Indian nation’s defined priorities and methodologies should apply to all aspects of the
program.
There has been much skepticism expressed already about the BIA’s ability to fully expend all of the
funds from the settlement in an effective manner -- much of this skepticism coming from tribes where
the ILCP has been operating for the past number of years. To allow Indian nations to essentially
customize the CTLCP to their own specific circumstances and policy environments will result in a
considerably more efficient program overall. Lacking efficiency and tribal support will likely lead to the
failure of the program to meet its two most important goals—Indian Country’s goal of more effective
land management and use and the DOI goal of reduced numbers of undivided land interests and the
resulting IIM accounts.
One of the specific differences likely to exist between a number of tribally-defined programs and a
program operated by the BIA in the ILCP manner concerns what is considered consolidation of interests.
In ILTF’s earlier work in the AIPRA Estate Planning and Will Writing Pilot Project, we were informed after
the close of the project that the BIA only considers consolidation to have occurred when an individuallyowned undivided interest is returned to tribal ownership, whereas our staff, contractors and all of the
clients considered consolidation of interests to have occurred when one individual transferred his or her
interest to another interest holder in the same allotment or when further fractionation was prevented
by the terms of a valid will or other appropriate means of transfer. The tribes that ILTF has worked with
and heard from continue to express a desire to assist tribal members in consolidating their families’
interests.
It is also likely that differences will exist between tribal nations in their emphasis on the types of
allotments they focus on or the size of interests they pursue. To have one overarching set of program
priorities for all Indian nations will be counterproductive.
In the end, based on our experiences with Indian nations, ILTF fully believes that Indian nations, their
staff and Indian people have the ability and right to decide for themselves whether they should operate
this program or not and what the priorities and structure should be of the program on their reservation.
Accurate data on allotments and owners of every interest in each allotment must be made available
to each Indian nation before implementing the CTLCP. BIA and OST must ensure the accuracy of this
data.
In order for Indian nations to fully develop their consolidation and acquisition priorities and plans as well
as make an informed decision about whether they should operate the CTLCP, Indian nations must have
complete and accurate data on allotted trust lands within their reservation boundaries. This includes
full legal descriptions of the allotments and the names and contact information of current undivided
interest holders in each allotment. Regardless of whether a tribe chooses not to run the CTLCP, this
data must be delivered immediately in order for tribes to establish their acquisition priorities and
communicate those priorities to the BIA.
While ILTF is aware that some Indian nations have had success getting all or some of the allotment and
ownership information, we hear more frequently from tribes that have been trying for long periods of
time without success. The tribes are being told that the information they need primarily resides in the
Trust Asset and Accounting Management System (TAAMS). As this is a DOI database and will
presumably be the basis for the purchases of fractional interests no matter what entity is running the
CTLCP, tribal requests for the information should be easily fulfilled with direction to the BIA staff from
the Secretary of the Interior.
Liens should not be placed on the fractional interests acquired under CTLCP, and if liens are placed on
these acquisitions, the liens should be immediately waived utilizing secretarial authority provided by
ILCA.
The BIA staff has reiterated several times during the scheduled consultations that representatives of the
Secretary have said that liens will not be placed on the acquired fractional interests and the properties’
beneficial use title will pass directly to the tribe without encumbrances. However, lacking a written
statement or documentation specifically stating this to be the case during the entire implementation of
CTLCP and given the importance of this particular issue, ILTF is compelled to continue commenting on
why this is fundamentally a bad precedent that was set earlier under the ILCP and completely
unacceptable under CTLCP.
ILTF maintains there are three primary reasons for not placing liens on title interests purchased under
CTLCP. First and perhaps most significantly, to the best of our ability and considerable time, ILTF has
been unable to find any indication that the Indian nations were paid for the land given to tribal
members during the allotment processes. The nations were compensated, albeit minimally, for lands
that were declared “in surplus of Indian needs” but were not compensated for allotted lands. Why
should the Indian nations have to purchase these lands from the CTLCP through foregone income? It
seems that the origin of these program funds, the Cobell v. Salazar settlement, would suggest this is a
longstanding wrong that should be corrected at this point and the undivided interests purchased under
the program should be transferred to the Indian nations without liens on the income.
Secondly, the placement of the liens also necessitates continuation of some basic administration of each
undivided interest by the BIA as would have occurred under the individual ownership; the biggest
differences would be fewer IIM accounts and notices to landowners, and if all of an individual
landowner’s interests are purchased, the writing of and distribution of federal checks to individual
landowners. The BIA still must account for the income gained by the allotment and its division among
the undivided interests until the purchase price of that specific interest is paid off or the lien is waived
by the Secretary. By eliminating the placement of liens during the purchase, the proceeds from an
allotment would go directly to the tribes and the federal government could avoid substantial annual
administrative costs.
ILTF estimates that the BIA may be able to save $40 to $50 per consolidated undivided interest per year
and eventually will be saving millions of dollars annually in administrative costs depending on the
number of purchases and the rate of purchase of the estimated four million undivided interests. Using
these numbers and assuming 10 percent of the interests are purchased annually for the 10-year
program, the DOI could recover the entire costs of the CTLCP within 14 years from the start of the
program simply through administrative savings.
The third reason for not placing liens on the purchased interests is the unnecessary difficulties that it will
cause the tribal nations as they look to use the revenue stream or properties as leverage or in
developing the allotments for a variety of uses. One of the most recognized problems of fractionation of
Indian land titles has been the difficulties in developing the properties for a range of uses including
economic development, leasing for ranching/farming, home sites and natural resource development,
among many other uses. Attaching a lien to undivided interests would simply add another complexity
that would further impede tribal development activities at a time when the tribes are trying mightily to
recover from the economic recession.
The Indian Land Consolidation Act gives the Secretary of Interior ample authority to waive liens on not
only the interests acquired under this new acquisition program but also the existing ILCP acquisitions.
ILTF would encourage the Secretary to use the authority under 25 USC 2213(b)(5) and waive all liens
associated with both consolidation programs, save the DOI administrative budget considerable funds
and allow the tribal nations to use the revenue from the land to support their economic growth and
further land purchases. There is no reason for this issue to go any further.
Mass appraisal methods can and should be utilized and tribal appraisal resources relied upon where
possible.
Appraisals are required for many of the transactions that involve Indian trust land and unfortunately,
there are a limited number of qualified appraisers willing to do this work in Indian Country. As a result,
the time it takes to receive an appraisal report on a trust allotment may commonly be two years
although longer times are not uncommon, particularly if any unique circumstances are present. The
CTLCP has the potential to exacerbate this backlog of appraisals given the number of allotments that will
be involved in transactions. Any attempt to expedite appraisals that are not completely in keeping with
sound appraisal practices could prevent the federal government from fulfilling its trust responsibility to
the individual owners.
Mass appraisal methodologies have been developed and recognized as valid and consistent with the
Uniform Standards of Professional Appraisal Practice (USPAP). The use of this approach by Indian
nations should be allowed and encouraged in fulfilling the requirements for surface use appraisals
related to CTLCP purchases. The methodologies for mass appraisals of the mineral value of the
allotments may be less well accepted. Thus any allotment being considered for CTLCP purchases that is
thought to have any possible mineral value should have a separate mineral appraisal conducted before
sales of interests in the allotment commence.
Distribution of the settlement funds (both purchase pool and administrative cost pool) to Indian
nations for program implementation should be based on the number of undivided interests on the
reservation and the number of allotments with fractionated title on the reservation.
The overarching criteria requested by Indian nations for the distribution of funds from the CTLCP
settlement fund pool are quite simply fairness and transparency. While fairness may be difficult to
achieve in the view of every tribe, transparency should be relatively easy and is clearly important.
In considering the factors that could be the basis for dividing the funds among reservation CTLCP
programs, the attendees at the tribal discussion meeting deemed as unworkable the equal division of
funds and distributions proportionate to the number of undivided interests held by tribal members of
any given tribe, the latter being discounted because of the amount of dispersal of interests caused by
inheritance by tribal members of non-allotted reservations.
ILTF believes that the following three factors are most important:
1. the number of undivided interests on the reservation currently,
2. the number of allotments with fractional interests currently, and
3. the number of allotments on the reservation in 1934.
The use of any one of these proportions or even a combination of any two may not provide a perfect
equitable solution for every tribal nation. At first blush, it would seem that the use of the proportional
number of allotments in 1934 may be the one point in time that is the most comparable across the 219
allotted reservations. After that date the historical factors relative to allotments and influences on the
number of undivided interests vary widely among Indian nations. For instance, one nation may have
utilized its own resources over the years to purchase small interests and opposed partitioning of
allotments into smaller sizes. Another may have encouraged partitioning for home site development
and did not buy any undivided interests except from non-Indians, while a third may have done nothing
at all to affect change in the number of allotments or the rate of fractionation. However, historical
factors would also complicate the use of the 1934 proportion in that a relatively small reservation with
few original allotments may be in an area of exceptionally high current land prices. A relatively small
allocation of the pool would preclude that Indian nation from purchasing even a modest share of the
existing undivided interests.
Perhaps the best solution would be to make allocations to the tribal nations based on all three
proportional amounts listed above. By determining the proportional amount for each allotted Indian
nation of all allotments in 1934, current total number of allotments with fractionated title, and number
of existing undivided interests in allotments on land under their jurisdiction and then averaging the
three percentages would determine the percentage of the $1.5 billion purchase pool and the $285
million administrative pool for each tribe. Using this formula to equalize distributions and still allow for
some of the historical changes that have occurred, there may still be some perceived inequities. It
would also be important in using this formula to cap the distribution to any given Indian nation at the
estimated total value of the current allotments with fractionated title.
Thank you for this opportunity to provide comment on what promises to be a very important program in
Indian trust land ownership and management. I would be happy to respond to any questions or
concerns that you or your staff might have about ILTF’s comments and recommendations outlined
above.
Sincerely,