Three More Tribal Nations Sign Agreements with Interior to Reduce Fractionation in Indian Country

Buy-Back Program to begin implementation at Crow Nation,
Fort Belknap, Fort Peck to facilitate purchases from individual landowners


Source: Program, Buy Back
WASHINGTON, DC – In the latest step in the successful implementation of the Land Buy-Back Program for Tribal Nations (Buy-Back Program), Deputy Secretary of the Interior Michael Connor today announced that the Department has signed three additional agreements with tribal nations in Montana to facilitate the purchase of individual interests in fractionated trust lands and consolidate ownership for the tribes with jurisdiction. Agreements with Crow Tribe, Fort Belknap Indian Community, and the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation detail what each tribal government will do to help implement the Buy Back Program and provide resources to facilitate outreach and education, and solicit interest from owners.

To date, the Buy Back Program has made nearly 33,000 purchase offers to owners of fractionated interests, successfully concluded transactions worth more than $72 million and restored the equivalent of more than 203,000 acres of land to tribal ownership. 
“President Obama has made clear his commitment to help strengthen Native American communities and I am proud that today we are continuing that momentum with the steady implementation of the Buy-Back Program,” said Deputy Secretary Connor. “I want to thank the Crow Tribe, Fort Belknap Indian Community, and the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation for their partnership as we work together to ensure individuals are aware of this historic opportunity to strengthen tribal sovereignty by supporting the consolidation of tribal lands for the benefit of each tribal nation.”
Land fractionation is a serious problem across Indian Country. As lands are passed down through generations, they gain more owners. Many tracts now have hundreds and even thousands of individual owners. Because it is difficult to gain landowner consensus, the lands often lie idle and cannot be used for any beneficial purpose. There are more than 245,000 owners of 3 million fractionated interests, spanning approximately 150 Indian reservations, who are eligible to participate in the Buy-Back Program.
“The Crow Tribe has been focused on addressing fractionated lands on the Crow Reservation for decades. We continue to be committed to restoring the tribal land base and are optimistic that the Cobell Land Buy-Back Program will provide critical funding towards these efforts,” saidChairman DarrinOld Coyote.“Execution of the cooperative agreement is the first important step to implement a tribal member prioritized approach to realize the benefits of the Program.”
The Department recently announced 21 locations where land consolidation activities such as planning, outreach, mapping, mineral evaluations, appraisals or acquisitions are expected to take place through the end of 2015. These communities represent more than half of all the fractional interests and unique owners across Indian Country.
“Fort Belknap would like to express their appreciation with the Land Buy-Back Agreement. We have had a professional working relationship with the Land Buy-Back team. Fort Belknap will be looking forward to increasing tribal land ownership and strengthening the economic environment for the tribe and tribal members. Consolidated tracts are a greater benefit to the overall land use and produce greater income,” said Councilman Curtis Horn, Fort Belknap Indian Community Tribal Land Chairman.
The Buy-Back Program is entering into cooperative agreements that are flexible and responsive to the specific needs and unique circumstances of each tribal government and location involved. The agreements showcase the active role that tribes can have, which is intended to improve the Program’s effectiveness and efficiency while minimizing administrative costs.
“It is my hope that this historic agreement will begin to address thegrowing problem of fractionalization of Indian land ownership on ourReservation by restoring our tribal land base, promoting Indianself-determination, strengthening and advancing the economic security of our tribal community, and fulfil the United States’ trustresponsibility to Indians,” said A.T.Stafne, Chairman of the Fort Peck Tribal Executive Board. “This Agreement recognizes the Tribes’capacity, professionalism and familiarity with trust lands on FortPeck Reservation to efficiently implement land purchases.”
The Buy-Back Program was created to implement the land consolidation component of the Cobell Settlement. The Settlement provided $1.9 billion to consolidate fractional land interests across Indian Country. The Buy-Back Program allows interested individual owners to receive payments for voluntarily selling their land. Consolidated interests are immediately transferred to tribal governments and stay in trust for uses benefiting the tribes and their members.
In addition, sales will result in up to $60 million in contributions to the Cobell Education Scholarship Fund. This donation is in addition to the amounts paid to individual sellers, so it will not reduce the amount landowners receive for their interests.

Deadline Approaching for Landowners with Fractionated Interests at Pine Ridge Reservation

The Department of the Interior has sent purchase offers totalling more than $100 million to nearly 16,000 landowners with fractionated interests at the Pine Ridge Reservation. These offers will provide landowners the opportunity to voluntarily sell their interests, which would be consolidated and held in trust for the Oglala Sioux Tribe of the Pine Ridge Reservation. Pine Ridge is among the most highly-fractionated locations in the United States;landowners with purchasable interests have been located in all 50 states.

The Buy-Back Program was created to implement the land consolidation component of the Cobell Settlement, which provided a $1.9 billion fund to purchase fractionated interests in trust or restricted land from willing sellers, at fair market value, within a 10-year period. Interested sellers will receive payments directly into their IIM accounts. Consolidated interests will be transferred to tribal governments for uses benefiting the tribes and their members.

Owners Must Respond Soon. Purchase offers are valid for 45 calendar days. Owners must accept and return current purchase offers for fractionated lands on Pine Ridge postmarked by May 2, 2014. 

Staff Ready to Answer Owner Questions. Landowners can contact the Trust Beneficiary Call Center at (888) 678-6836 with questions about their purchase offers, visit their local Office of the Special Trustee for American Indians (OST) or Bureau of Indian Affairs (BIA)office, or find more information Landowners may also contact Oglala Sioux Tribe outreach staff at 605-867-2610 with questions.

Sellers Receive Fair Market Value. In addition to receiving fair market value for their land based on objective appraisals, sellers also receive a base payment of $75 per offer, regardless of the value of the land. Early purchases from willing sellers have resulted in the consolidation of more than 100,000 acres of land for the tribe, and in payments to landowners exceeding $35.5 million. While the amounts offered to individuals have varied, a few owners have already received more than $100,000 for their interests. On average, payments to individuals have been made within seven days after Interior approves a complete, accepted offer package.

Tribal Outreach Events Are in Progress. Interior has worked cooperatively with the Oglala Sioux Tribe over the past several months to conduct outreach toeducate landowners about this unique opportunity, answer questions and helpindividuals make a timely decision about their land. For information about outreach events at Pine Ridge where landowners can gather information in order to make informed decisions about their land, contact the Oglala Sioux Tribe’s outreach staff at 605-867-2610.

Participation Is Voluntary. Participation in the Buy-Back Program is voluntary and selling land does not jeopardize alandowner’s ability to receive individual settlement payments from the Cobell Settlement. Cobell Settlement payments are being handled separately by the Garden City Group, (800) 961-6109.

‘Cobell’ Dishonored by Interior’s Buy-Back Plan

gabriel-galandaBy Gabriel S. Galanda, ICTMN

The U.S. Department of the Interior’s Indian Land Buy Back Program has been lauded as the “hallmark” of the $3.4 billion Cobell v. Salazar settlement. As the Buy Back Program now lifts off in hurried fashion at Makah and Pine Ridge, the program dishonors both the letter and spirit of Cobell.

Cobell settled more than 500,000 tribal members’ trust land and asset mismanagement claims, dating back to the 1890s. Not tribal government claims; tribal member claims. Now, copy.9 billion in tribal member settlement monies has been allocated to help tribes “buy back” those members’ allotted or restricted fee lands. In practice, these “buy backs” are accomplished through the forced sale of tribal members’ ancestral lands. Injustice to individual Cobell class members aside, assuming that financially supporting a tribe will benefit that tribe’s members, one would hope that the buy-back wealth would be spread throughout Indian Country. After all, those 500,000 members of the Cobell class surely represent the vast majority of the 566 federally recognized tribes.

But it has recently come to light that Interior has limited the lion’s share of the copy.9 billion in buy back funding to only 40 tribes. Interior’s outside appraisers recently let it slip that “the program will exclude reservations east of the Mississippi and in Alaska.” Interior was quick to retract that statement, but the genie was already out of the bottle. If that were not bad enough, other swaths of Indian Country with large Indian populations west of the Mississippi, like all of California Indian country (save the Washoe Tribe, which is headquartered in Nevada), are excluded from the program.

Cobell, for better or worse, was fought for all of Indian Country, not just 40 tribes. For the sake of the 500,000-plus Cobell class members whose land and related claims were extinguished for eternity, tribal communities west of the Mississippi, in Alaska and California, and elsewhere, all deserve to share in the Buy Back wealth.

The fact is that the Buy Back Program and its goal to consolidate fractionated Indian lands have little to do with what is right or fair. The program is not really about affording “benefits of those lands for the tribes and their members” as Interior Deputy Secretary David Hayes once professed; or “expand[ing] tribal economic development opportunities across Indian Country” as Assistant Secretary Kevin Washburn said more recently. The program is designed to serve the best interests of the United States; to resolve “enormous administrative difficulties for the government” – and related liability – caused by fractionation. 
Cobell v. Salazar, 573 F.3d 808 (D.C. Cir. 2009). To feign otherwise is dishonest.

As to the letter of the law that is Cobell, the Buy Back Program fares no better. In 2004, the U.S. District Court for the District Court of Columbia in Cobell v. Norton, affirmed that “Interior may acquire land from individual Indian owners to consolidate fractional ownership interests and thereby ‘lessen the number of owners.’” 225 F.R.D. 41 (D.D.C. 2004). However, the court went on to hold that the United States’ trust-fiduciary responsibility requires that the “individual Indian owner of trust lands . . . give truly informed consent to the sale of trust corpus” before any sale is approved by Interior.

The Cobell court made clear that any such sale requires clear “communication between individual Indian trust-land owners and agents of Interior” and that “trust beneficiaries ought not have to make the decision to sell trust assets without access to all the relevant information,” including answers to any questions or concerns they may have. More generally, legal scholar Derek Haskew explains that the United States’ fiduciary duties to tribal member landowners includes consultation, which “can roughly be understood as communication by Indian beneficiaries of their desires to the federal trustees who make ultimate determinations about what happens with the lands Indians occupy.” 24 AM. IND. L. REV. 21 (2000).

Because the Cobell court found such consultation, communication and information wanting, it felt compelled, as a matter of law, “to guarantee that Interior adheres to its fiduciary duties, and to ensure that trust beneficiaries receive the full value of conscientious behavior by their Trustee.”

Yet, despite Cobell’s clear instruction, Interior now embarks on a hastily developed “plan” to cause the sale of individually owned Indian lands. “Mass appraisal valuation techniques” will be utilized, amidst “categorical exclusion” from any federal environmental review. Federal regulations that require Indian land sales to occur by “auction or negotiation” are not being brought to light. Cobell v. Norton, supra. Pivotally, “offer packages” will be mass mailed to individual Indian owners with, among other things, a cover letter, conveyance deed and related sale instructions, as well as “self-addressed return envelope, postage prepaid, if the individual chooses to return…the signed and notarized Deed.” In not so many words: “sign here.”

Mass mailings do not effectively facilitate “communication by Indian beneficiaries of their desires to the federal trustees.” Offer packages with self-addressed return envelopes do not afford a landowner “all the relevant information” to make any informed decision. These one-size-fits-all sale mechanisms do not “ensure that trust beneficiaries receive the full value of conscientious behavior by their Trustee.” In all, the buy back process is simply not designed to obtain “truly informed consent” from tribal member landowners. It is designed to serve federal interests – and it dishonors Cobell.

Gabriel S. Galanda is the managing partner at Galanda Broadman, PLLC, an American Indian-owned law firm.