CHAPTER 8 ALLOTTEE ISSUES
| Jurisdiction | United States |
(Nov 2014)
ALLOTTEE ISSUES1
Chief
Branch of Engineering, Division of Energy and Mineral Development
Office of Indian Energy and Economic Development
U.S. Assistant Secretary - Indian Affairs
Lakewood, Colorado
Stephanie P. Kiger
Attorney-Adviser
Office of the Solicitor, Southwest Region
U.S. Department of the Interior
Albuquerque, New Mexico
Sharon Pudwill
Attorney-Adviser
Twin Cities Field Solicitor's Office, Office of the Solicitor
U.S. Department of the Interior
Bloomington, Minnesota
Jeffrey.Hunt@bia.gov
Stephanie.Kiger@sol.doi.gov
Sharon.Pudwill@sol.doi.gov
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JEFFREY HUNT is Chief, Branch of Engineering, Division of Energy and Mineral Development, Office of Indian Energy and Economic Development, Lakewood, Colorado. Jeff has been with the Bureau of Indian Affairs (BIA), Division of Energy and Mineral Development since 2000. Currently he is providing technical assistance to the BIA and Three Affiliated Tribes managing Bakken development on the Fort Berthold Indian Reservation. Prior to that he worked with the Minerals Management Service, Gulf of Mexico Region from 1998 through 2000, and worked with the Bureau of Land Management in Wyoming from 1983 through 1998. He also worked in offshore drilling in the Gulf of Mexico and the Middle East from 1979 through 1983. He has a degree in Petroleum Engineering from the University of Louisiana - Lafayette.
STEPHANIE P. KIGER is from Santa Clara Pueblo and was raised in Santa Fe, New Mexico. She earned a BA in International Studies from The American University in Washington, DC and an MA in American Indian Studies from the University of Arizona. Stephanie attended Law School at the University of Washington. Upon law school graduation, she returned to New Mexico. She has concentrated her work in Indian law, having worked for the Eight Northern Indian Pueblos Council Peacekeepers program and for a private law firm representing Tribes and Tribal organization in New Mexico and across the country. She was appointed by Governor Bill Richardson to serve as General Counsel for the New Mexico Indian Affairs Department. She subsequently worked in the Governor's Office of General Counsel first as Associate Counsel and then Deputy Counsel. She currently works for the US. Department of the Interior, Office of the Solicitor, Southwest Region. Her work with Interior focuses on Tribal realty matters, mineral development, and code review.
SHARON E. PUDWILL is an attorney with the U.S. Department of the Interior, Office of the Solicitor, Twin Cities Field Solicitor's Office. She provides legal advice to various agencies within the Department of the Interior, including the Bureau of Indian Affairs and the U.S. Fish and Wildlife Service. Ms. Pudwill earned a B.S. in Business Management with an English minor from Baptist College (now Charleston Southern University) in South Carolina, and later earned a Juris Doctor from William Mitchell College of Law in St. Paul, Minnesota, graduating magna cum laude. After law school, Ms. Pudwill clerked for the Honorable Donald P. Lay at the United States Court of Appeals for the Eighth Circuit. Following the federal appellate clerkship, Ms. Pudwill joined the Solicitor's Office in 2000. Her practice with the Department of the Interior includes federal Indian law, environmental law, law enforcement issues in Indian country, land acquisition, rights-of-way, administrative appeals, and mineral leasing at the Fort Berthold Agency in New Town, North Dakota. Ms. Pudwill lives in Minnesota with her husband and two daughters.
In the years before the 1887 General Allotment Act, Native American Tribes collectively owned approximately 138 million acres of land. As a result of the United States' policy of allotment - the division of reservations into individually owned parcels -- Tribes lost more than 90% of their land base. Today, Tribes hold (in varying legal status) about 55 million surface acres of land and 57 million subsurface mineral acres. (www.bia.gov/WhatWeDo/). Individual allottees own approximately 9 million of these 55 million surface acres, which is a land base that exceeds the size of Massachusetts, Connecticut and Rhode Island, combined. Tribes are the third largest owner of mineral resources in the United States, after the U.S. Government and railroads.
A Brief History of Indian Allotments
Pre-1887, Congress enacted limited allotment measures on a Tribe-by-Tribe basis. Some tracts were held in trust, while others were granted in fee simple. Felix S. Cohen, Handbook of Federal Indian Law at 129 (1982 ed.) (hereafter Cohen).
The General Allotment Act of 1887, often referred to as the Dawes Act identifying the Senator who sponsored the bill, formalized the United States' allotment policy. Pursuant to that Act, parts of the public domain and certain reservations were allotted - meaning lands were divided up and individual Indians were granted parcels ranging between 40 to 160 acres. The original
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Act granted 160 acres to head of households and 40 acres to minors. Cohen at 133. Those parcels, colloquially called "allotments," were to be held in trust for 25 years by the United States government for the individual Indian, or longer if the President so desired. Cohen at 131. During that 25-year period, allotments could not be sold, mortgaged or taxed. At the end of that 25-year period, the Secretary of the Interior had the discretion to issue a fee patent which had the effect of removing the trust status of the land and rendered the land free from encumbrances, fully alienable and taxable. 25 U.S.C. § 349. Any "surplus lands" existing after the land was allotted to individual Indians were then sold or given to non-Indian settlers, with profits to be paid to the affected Tribe. The United States also passed laws allowing the Secretary of the Interior to grant rights-of-way across tribal and allotted lands for telegraph and telephone lines, and subjected allotted land to condemnation "for any public purpose" under state law. Cohen at 133 (citing 25 U.S.C. §§ 319, 320 and 357).
Once the Indian received a fee patent, they were also granted United States citizenship and deemed to be subject to the civil and criminal laws of the states in which they were located. Although the general policy of allotments was aimed at encouraging an agrarian lifestyle of grazing and agriculture, in many cases, allottees generally also received title to minerals. United States v. Shoshone Tribe of Indians, 304 U.S. 111, 118 (1938) ("When land was allotted under the General Allotment Act, the mineral rights as well as the surface rights belonged to the allottee, subject to the same trust status as the land."); and compare Adams v. Osage Tribe of Indians, 59 F.2d 653, 654 (10th Cir. 1932), cert. denied, 287 U.S. 652 (1932) (Osage Allotment Act provides that allottees receive title to minerals after the expiration of 25 years) with The Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976) (under Northern Cheyenne Allotment Act, allottees were not granted mineral rights).
In 1906, the Burke Act was enacted and codified at 25 U.S.C. § 349 to remedy certain aspects of the General Allotment Act. This Act allowed the elimination of all trust restrictions on allotments thereby allowing for issuance of fee patents to individuals deemed "competent and capable" prior to the expiration of the 25-year trust period. An allottee's approval was not required for the fee patent to issue and under this era "the Secretary [of the Interior] granted fee patents to willing allottees and also to large numbers of Indians that did not want to receive unrestricted fee title to land. This 'forced fee' patent policy, which applied to thousands of Indians in the Western United States, produced harsh results. Many patent holders were cheated out of their land by white speculators; in fact, it is claimed that Indians lost nearly 1.5 million acres of land during this period." 9-67 Powell on Real Property § 67.07. The Burke Act also granted the Secretary of the Interior authority over determining heirs of deceased Indians. The net effect of the Burke Act was to accelerate the alienation of Indian land.
Numerous other acts impacted the United States' ability to manage allotments throughout the late 1800's and early 1900's. In 1909, allottees were permitted to lease their lands for mineral purposes. And, in 1934, the Indian Reorganization Act (IRA) was enacted formally ending the allotment era. The IRA also provided that any existing period of trust for allotments was extended and continued until otherwise directed by Congress. As a result of this legislation and policies, Indian land was lost through 1) the ceding of "surplus lands;" 2) the alienation by individual Indians of fee patents; and 3) the government sale of allotments as allowed under 25 U.S.C. § 379.
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The Challenges of Fractionated Ownership
Fractionation occurs where trust allotments have so many small (fractional) interest owners that no single owner can effectively use the land. The higher the number of fractional owners, the harder it is to obtain consent among the co-owners to make any beneficial use of the property, even for something as simple as a residential lease. As can be seen by the following data and chart from the Indian Land Tenure Foundation (https://www.iltf.org/land-issues/fractionated-ownership), many allotments are becoming highly fractionated and are owned by hundreds or thousands of individuals who may own less than 1/250th of an interest in the trust land. By sheer volume of owners, obtaining consents can be a Herculean task and the problems associated with fractionation of allotments complicate mineral leasing on allotted lands. According to the Indian Land Tenure Foundation,
[f]or over a century, Indian families have seen valuable land resources diminish as...
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