Fractionation arose as a result of the disastrous Dawes Act policy in which Congress forced tribes to give up portions of their homelands. Allotments were parceled out to individual Indians but as successive generations passed on, their parcels become divided among dozens or even hundreds of owners. "The Dawes Commission was an egregious violation of every treaty that the United States had signed," Rep. Tom Cole (R-Oklahoma), who is a citizen of the Chickasaw Nation, once said. His tribe was forced to give up its homelands twice -- once on the Trail of Tears and again during allotment. Besides addressing historical issues, tribal leaders say restoring fractionated parcels to tribal ownership improves economic development opportunities. And it boosts their sovereignty -- a federal appeals court ruling last week confirmed that allotments become "tribal" once a tribe acquires an interest in them. Prior to the Cobell settlement, the Bureau of Indian Affairs only spent about $21 million a year for land consolidation. The money was never enough to address fractionation -- a top official told Congress back in 2003 that it would take upwards of $3 billion to make a dent in a problem that was decades in the making. The BIA's prior efforts also suffered from a flaw that prevented tribes from actually obtaining the interests they desired. The land would only be returned to tribes once a "lien" -- equivalent to the purchase price -- was paid off from proceeds on those interests.
The Obama administration determined that the liens -- which are authorized by the Indian Land Consolidation Act -- were not required for the Cobell program. The decision ensured that tribes could benefit immediately from the land acquisitions. Later, the administration transferred $14 million in proceeds to tribes that participated in prior land consolidations efforts Despite the shortcomings, Cason last week said Interior was willing to re-impose the system of liens for future transactions. Rep. Doug LaMalfa (R-California), who chairs the House Subcommittee on Indian, Insular and Alaska Native Affairs, expressed support for that approach during the May 23 hearing. Cason, however, did not mention that while liens are authorized by ILCA, they also can be removed for various reasons under 25 U.S. Code § 2213. Yet another quirk plagued BIA's earlier efforts. In order to keep track of the lien and any proceeds from a fractional interest, the agency had to open up a new trust fund account, resulting in new administrative burdens and costs. Cason didn't mention this issue either in his testimony to the subcommittee. House Subcommittee on Indian, Insular and Alaska Native Affairs Notice:
Oversight Hearing on the Status and Future of the Cobell Land Consolidation Program (May 23, 2017) Department of the Interior Report:
2016 Status Report: Land Buy-Back Program for Tribal Nations (November 2016)
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