Dealing with the whip end of someone else's crazy: individual-based approaches to Indian land fractionation.

• Author: Franken, Anthony J.

Traditional property rights among Native American peoples were complex and varied greatly from tribe to tribe, both in their customs and structures of enforcement. Although decentralized power in the hands of family groups and personal ownership rights were once widespread, the collision with white society upset these practices. Following the Allotment Era, Indian land became highly fractionated, decreasing the productivity and value of the land. Attempts to solve this problem have largely focused on the tribe, either in legislation or the funding of that legislation. However, an individual-based approach to reducing fractionation through education and estate planning has many benefits, and has proven successful. As authorized by the American Indian Probate Reform Act ("AIPRA "), the federal government should support programs that seek to reduce fractionation by assisting individual Indians in writing wills. This approach will reduce fractionation, engage Indian landowners in decision-making processes, and give some hope to those individuals who feel overwhelmed by the complicated array of laws working against them and the interests of their families.

1. INTRODUCTION

   "We ask only that the nature of our situation be recognized and made the basis of policy and action." (1)

   There has always been a strong connection between the indigenous people of the American continent and the land itself. (2) This connection encompassed life at the community and individual level, as well as religious and cultural practices. (3) In the aftermath of the policy of allotment, the already meager land holdings owned by Indians were fractionated into remarkably small interests, especially Indian lands in the upper Great Plains. (4) This article will shed light on the situation facing individual Indians and their families with regard to the succession of Indian trust lands. (5) This article will also highlight the benefits of focusing on the individual in a system that has largely disconnected them from their land and decisions pertaining to that land. (6) Although attempts at solving the problem of fractionation have largely come through a top-down approach favoring tribal government, alternatives are available. (7) Estate planning and education services directed at individual Indians can achieve the goals set forth by AIPRA, while reconnecting the individual to the land and making them active participants in land distribution decisions. (8) Through education and estate planning, individuals will not be passive observers of a complex statutory scheme that may damage family structure and well-being. (9)

   First, this comment will investigate the diverse historical background of individuals' relationship to property in Native American culture. (10) Second, this comment will look at the ways in which Congressional attempts to transition from traditional land use customs, to a Western system of land ownership, led to the fractionation of Indian land. (11) Third, this comment will examine the policies of current legislation and the appropriation of funding supporting a tribal-focused approach rather than the individual-based approach. (12) Next, this comment will examine problems facing individuals and families under the current statutory scheme and the benefits of an individual-based approach as part of a holistic solution to the problem of fractionation. (13)

2. BACKGROUND

   1. TRADITIONAL NATIVE AMERICAN PROPERTY RIGHTS

      The balance between group and individual rights to Indian land, and the power structures that have enforced those rights have undergone massive changes over the last few centuries. (14) Before white settlement of the American continent, Indian nations developed complex societal structures in which they lived in community and dealt with property rights among their associated group members in a broad spectrum of arrangements. (15) Although the Indian property structures did not exactly mirror their Euroamerican counterparts, the structures in place prior to European settlement were also not simple communal property systems. (16) In fact, as Professor Theodore Jojola explains, in the traditional property rights structures of Indian communities, "layers of usage are understood and used to regulate the interplay of actions among tribal or clan members." (17)

      Although property rights varied greatly among Indian nations, many of these property rights and the political and decision-making powers to enforce them were defined and upheld within family groups of varying size and composition. (18) For example, the Mahican Indians in the Northeast marked out well-defined tracts of land that were possessed and farmed by family groups and passed within the family group to the next generation. (19) In the Southwest, where Indians formed settled agricultural communities, private ownership of land was recognized. (20) Before the introduction of horses, some plains Indians settled primarily along rivers and rarely traveled great distances over the plains, therefore exhibiting similar private property rights. (21) Evidence suggests early land purchases by white settlers from Indians were negotiated through the heads of Indian families selling hereditary gardening plots. (22) Upholding property rights largely fell on a consensus-based approach of governance, in which property rights were given to the individual or family group so long as they were taking an active role in the land by putting it to productive use. (23) Before white settlement and pressure by the United States government, tribal governments such as the Cheyenne were more decentralized, with a stronger sense of private property rights. (24)

      Plains Indians, especially the Lakota, were identified largely as individualistic societies, as evidenced by anthropological literature. (25) Among the Lakota, "individuals competed for wealth, prestige and power[,]" and power was generally decentralized. (26) Sociopolitical power and organization was largely on two levels, the first being focused around family-centered groups, or tiyospaye, and the second, larger scale organization of combined family clusters, which formed intermittently as military need arose. (27) Despite this decentralized structure and individualistic overture, Lakota practices of giving and sharing were often misconstrued as an overall assumption of communal property. (28) In reality, these practices were based on a common belief that sharing with Lakota neighbors protected future individual security by strengthening relationships, which led to reciprocity. (29) As such, privately-owned property had a different role in Lakota society than in a traditional Western-capitalist society. (30)

      Indian property rights thus represented a "myriad [of] different property systems, varying widely by culture, resources, geography, and historical period." (31) Many tribes "recognized property rights in land and [did] so in ways that provided for transfer of land, rational inheritance, and legal change." (32) To this day, key concepts of these varied traditions and customs are still evident in Indian country. (33) A nearly universal theme within these systems, however, was that decisions to transfer rights outside of the tribe were restricted to tribal leaders. (34) This furthered the misconception, especially among nineteenth- and twentieth-century reformers, that "title to Indian lands was invariably held by the tribe in common...." (35) This belief in communal ownership would lead to policies that would shape major federal policies toward Indian land ownership. (36) Furthermore, as the federal government and outside individuals imposed themselves more and more upon Indian societies, the very nature of Indian nations' views on property were modified "in order to adapt to changing conditions." (37)

   2. THE DEVELOPMENT OF FRACTIONATION

      The problem of fractionation as we know it today was primarily set in motion by the General Allotment Act of 1887, also known as the Dawes Act. (38) For the federal government, seemingly communal ownership of land was problematic because it was contrary to the American virtues of individuality, private-ownership, and self-sufficiency. (39) Friends and enemies of a policy aiming to place land in the hands of individual Indians used the phrase "communism" quite loosely when referring to Indian economies. (40) Putting land in the hands of the individual Indians, the federal government thought, would foster assimilation. (41) The Act gave the federal government the power to allot tracts of land, ranging from 80 to 160 acres to individual Indian allottees. (42) The individuals were to own these allotments of land in a beneficial relationship, under which the federal government would reserve title to the land and hold that land in trust for the individual Indian allottees. (43) At first, the official policy stated that the individual Indian allottees would not be competent enough to manage the affairs of their own land, so the trust relationship was set in place for a twenty-five year period of time or until the allottees were deemed competent to handle their own land management. (44) During this time, the federal government hoped that Indian allottees would adopt a Western view of property ownership and advance economically to a point at which they could manage their own affairs. (45)

      The policy of allotment was presented as a beneficial plan for individual Indians. (46) In actuality, the policy undermined tribal power and sovereignty by dividing natural groups and encouraging individualism. (47) Furthermore, individual Indians were not benefited as intended, because the parcels allotted were often inadequate to supply a steady income, often due to the marginal quality of the land. (48)

      Under the policy regime following the Dawes Act, Indian allottees were restricted from free alienation of their allotted lands. (49) There were no federal laws in place to guide intestate descent of allotments and the...