{"id":5771,"date":"2017-09-13T00:58:43","date_gmt":"2017-09-13T00:58:43","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=5771"},"modified":"2018-01-30T16:28:29","modified_gmt":"2018-01-30T16:28:29","slug":"federal-laws-protecting-native-indian-landowners","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=5771","title":{"rendered":"Federal Law Protects Indian Landowners from being Denied Right of First Refusal during Land Buyback Program"},"content":{"rendered":"

Right of First Refusal<\/strong><\/span>
\n Must Be Offered to Existing Owners:<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0First,\u00a0we’d<\/a>\u00a0like to clarify that the only reason we’re<\/a> using the term “Indian” is because it is a recognized legal term within Constitutional Law<\/a>. \u00a0<\/span><\/strong><\/p>\n

\u00a0 \u00a0 \u00a0That said, Indian Landowners who hold shares of land\u00a0in common with fellow\u00a0landowners (usually\u00a0relatives)\u00a0are reporting that shares of land from fellow landowners are being privately purchased without right of first refusal<\/a>\u00a0and “consent” being offered to current owners\u00a0as required according to 25 U.S.C \u00a72204(a)(2)(A) and\u00a0(b)(1)<\/a>. \u00a0Reports\u00a0include\u00a0that\u00a0land purchased via the land consolidation program (aka land buyback program<\/a>) associated with the Cobell Settlement<\/a>\u00a0are not being done in accordance with\u00a025 U.S.C \u00a72204(a)(2)(A) or\u00a0(b)(1)<\/a>\u00a0\u2014\u00a0see full code & explanation below.<\/span><\/strong><\/p>\n

Brief History of Land Allotments:<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The\u00a0Dawes Act of 1887<\/a>, also known as the\u00a0General Allotment Act<\/a>\u00a0or the\u00a0Dawes Severalty Act of 1887<\/a>,\u00a0authorized the President of the United States (Grover Cleveland<\/a> at the time) to survey tribal land & divide it into allotments for use by individual Indians (160 acres for head of families; 80 for single adult males, 40 per child). \u00a0Those who accepted allotments & lived separately from the tribe were granted U.S. citizenship.<\/strong> [1]<\/span><\/p>\n

Allotment Map from 1903<\/strong><\/span>
\n Rosebud Reservation<\/a>, National Archives<\/em>:<\/span><\/span><\/strong><\/p>\n

Click to Enlarge:<\/strong><\/span><\/p>\n

\"\"<\/a><\/p>\n

Above map archived at the University of California, Irvine<\/a>, utilized here in accordance with Fair Use<\/a>.<\/strong><\/span><\/p>\n

Allotments Today;<\/strong><\/span>
\nFractionated Ownership<\/em>:<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0When an allottee died, title ownership was divided up among all of the heirs, but the land itself was not physically divided. \u00a0As such, each Indian heir received an undivided interest<\/span> in the land. \u00a0Now, as each generation passes on, the number of owners grows exponentially, which has resulted in the highly fractionated ownership of much Indian land today.<\/strong> [2]<\/span><\/p>\n

undivided interest<\/span>:<\/strong><\/span><\/p>\n

1. An interest held under the same title by two or more persons, whether their rights are equal or unequal in value or quantity. <\/strong>\u2013 Also termed undivided right<\/em>; undivided title<\/em>; fractional interest<\/em>. \u00a0See\u00a0tenancy in common<\/strong><\/span>.<\/em>\u201d <\/strong>[3] <\/span><\/p>\n

1. Ownership right to use and possess property that is shared by two or more co-owners. No individual co-owner has an exclusive right to any portion of the property,\u201d <\/strong>[4]<\/span><\/p>\n

tenancy in common<\/span>:<\/strong><\/span><\/p>\n

1. A property’s joint ownership by 2 or more unrelated or related bodies in equal or unequal shares. <\/strong>[5]<\/span> <\/a><\/strong><\/span><\/p>\n

\u00a0<\/strong><\/span>\u00a0 \u00a0 <\/span>\u00a0Excerpt from Thomas F. Bergin & Paul G. Haskell’s<\/span> Preface to Estates in Land and Future Interests<\/em><\/a>:<\/span><\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cThe central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel.<\/span>\u201d<\/strong><\/span> [6]<\/span><\/p>\n

One Allotment<\/span><\/strong><\/span>
\n Hundreds of Owners<\/em>:<\/span><\/strong><\/p>\n

\u00a0 \u00a0 \u00a0 Today, parcels with fractionated ownership can have hundreds or even thousands\u00a0of owners. \u00a0With so many owners, individual income from the land is minimal \u2013 sometimes less than what it costs the federal government to process the payment. \u00a0In addition, land use is compromised because<\/span> an undivided interest owner must gain consent from a majority of the parcel\u2019s owners to do anything with the land<\/span>. \u00a0This makes it nearly impossible for any one of the owners to use the land for agriculture, business development, or a home site.<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Fractionated ownership presents a serious problem that, if not addressed, will only get worse, placing Indian land further out of Indian control and adding to the excessive administrative costs of managing the interests. For example, in 2007, one 80-acre tract on the Lac Courte Oreilles Reservation in Wisconsin had 2,285 undivided interest owners. If nothing is done to prevent the further fractionation of these interests (such as implementing a land consolidation plan) in 50 years this allotment will have close to 535,000 owners and the annual costs to administer the allotment will go from $150,000 to $60 million!<\/span> <\/strong>[2]<\/span><\/span><\/p>\n

Land Buyback Program<\/span><\/a><\/span><\/strong>
\n Tribal Governments Purchase Shares:<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0To address the continued proliferation of thousands of new trust accounts caused by the “fractionation” of land interests through succeeding generations, the Cobell Settlement<\/a> establishes a $1.9 billion fund for the voluntary buy-back and consolidation of fractionated land interests. The land consolidation provides individual Indians with an opportunity to obtain cash payments for divided land interests in a way which frees up the land for the benefit of tribal communities.<\/span><\/strong><\/p>\n

\u00a0 \u00a0 \u00a0By reducing the number of individual trust accounts that the U.S. must maintain, the program will greatly reduce on-going administrative expenses and future accounting-related disputes. \u00a0In order to provide owners with an additional incentive to sell their fractionated interests, the settlement authorizes the Interior Department<\/a> to set aside up to 5 percent of the value of the interests into a college and vocational school scholarship fund for American Indian students.<\/strong> [7]<\/span><\/p>\n

25 U.S.C \u00a7 2204(b)(1)<\/strong><\/span>
\n Ensures<\/span>\u00a0Right of First Refusal<\/a>:<\/span><\/span><\/strong><\/p>\n

United States Code Title 25 \u00a72204:<\/strong><\/span><\/p>\n