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This Land Is Our Land (cont’d)

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Rationalizing the system

Whether or not the Cobell settlement cleans up fractionation largely depends on the future of an obscure BIA initiative: the Indian Land Consolidation Program (ILCP), which could soon be flush with about $1.9 billion in settlement funds. Through the program, which began in 1999, the BIA has been trying to transfer control of reservation land to tribes. It does this by buying allotment interests from willing individual sellers, and then transferring the property title to the tribe. The program focuses on buying out people who own less than 2 percent of their allotment.

As of March 2011, ILCP had purchased 427,313 interests or 642,554 acres. That’s a small dent in the 4.5 million fractionated individual interests dividing ownership of 11 million acres spread throughout U.S. reservations.

Brenda Walhovd, ILCP’s acting director, says that a tribe only needs to buy out half of all allotment interests in a tract of land to assume full control of it. That control can immediately help a reservation’s economy and people. For example, Wisconsin’s Fond du Lac Chippewa tribe used the federal program to double the acreage under tribal management and establish a logging enterprise. After South Dakota’s Rosebud Sioux tribe gained control of land through the federal program, it was able to provide housing for homeless tribal members.

Federal funding for ILCP has been cut significantly since the program started. It received $34 million as recently as 2007, but funding was cut entirely in 2009. In 2010, it received $3 million; in 2011, congressional funding was just $1 million. “We have kind of a stockpile of applications,” Walhovd says, referring to the unanswered requests from people who want to sell their land.

Once Cobell settlement funds start flowing, however, ILCP will have nearly $2 billion to disperse. According to plaintiff attorney Guilder, the government will consult tribes on how the program can be improved before distributing the money. “The government has indicated that they are open to reviewing the manner in which they operate [ILCP], recognizing that they’ve never had so much money to run the program,” he said.

Some tribal advocates criticize the program’s focus on buying up very small interests. Stainbrook says that the government could do more for tribes by buying larger tracts of land that are relatively undivided, which would prevent fractionation before it starts.

For its part, the BIA likes to paint a portrait of happy Indians thankful to sell their small land holdings. The allotment sale stories documented by the land consolidation program demonstrate the desperation of the sellers. Here are three anecdotes from ILCP’s literature:

1.”Landowner was very happy when she received her money. She bought school clothes for her children.”

2.” ‘I have cataracts in both eyes and need surgery. Medicaid won’t pay for it, so I’m glad I got this money so I can have the surgery done.’ “

3.”Landowner bought himself a dependable vehicle to get to work. He never owned a vehicle and lives in a rural part of the reservation.”

But David Bartecchi, director of Village Earth’s Pine Ridge Reservation Lakota Lands Recovery Project, a nonprofit, said that because of the land’s spiritual, familial and cultural importance, most wouldn’t sell fractionated land to the government if they could actually use it. “It’s taking advantage of people’s desperation,” Bartecchi says. “People don’t have any other option.”

But on the Rosebud reservation in South Dakota, Lakota tribe members do have an option besides selling their fraction of ownership to the government: the Tribal Land Enterprise (TLE), which some point to as a model of tribal land management. Landowners in the program can trade their allotment interests for shares in TLE, and shareholders can trade for tracts of land or cash or simply let the value of their shares appreciate.

In other words, the tribe increases its land base without taking away an individual’s stake. Tribe members who do not own land can lease it from TLE at a reduced price. In 2009, TLE’s lease revenues totaled $4.5 million, which it used to purchase more land.

“This is our way of helping our tribe to regain its original reservation,” says Fern Bordeaux-Boltz, TLE’s board chair. “To me, money’s not the issue; it’s the attachment we have to Mother Earth. Whatever we have to do to get it back, that’s what we have to do.”

Other tribes have approached TLE seeking help on starting a similar enterprise, Bordeaux-Boltz says, noting that the corporation, founded in 1943, is the only one of its kind in the country.

Bordeaux-Boltz wishes the government would stop holding any reservation land in trust. “If we say we’re a sovereign nation, and we can develop our own rules and regulations, then why are we dealing with the middleman?”

‘I just got screwed’

On June 20, Washington, D.C. federal district court Judge Thomas Hogan approved the terms of the federal settlement, including a $2 million payout to Cobell. Hogan awarded $99 million to her legal team, which Justice Department attorneys called “grossly excessive.” “The settlement isn’t perfect,” Cobell told Hogan via telephone on June 20. “I do not think it compensates all for all the losses sustained, but I do think it is fair and it is reasonable. I am convinced also that if this settlement failed, there would be many more years of litigation with little possibility of a more favorable resolution.”

But when ILCP does become flush with settlement funds, the federal program still won’t address the causes of fractionation. It won’t give tribes money to develop land ILCP helps them regain control of. The consolidation program won’t change the fact that banks don’t accept trust land as collateral for loans. Most galling of all to many frustrated Indians, the federal government’s paternalistic practice of holding tens of millions of reservation acres in trust will continue. Sharon Redthunder, Joseph Reynolds, Helmina Makes Him First and Asay No Braid will still have to deal with the mess created 124 years ago by the General Allotment Act.

No Braid figures that even if his buffalo dream doesn’t work out, there’s still the land. “To be honest with you, that’s all we have. My family’s not rich. We struggle day to day. If anything were to happen, at least I’d have somewhere to go and pitch a tent.”

No Braid is lucky he’s the sole inheritor of his land. Reynolds, who now lives in Tennessee, never was able to live on the Rosebud Reservation land he thought he’d inherited. Today, even the measly $.33 annual payment he received for the fraction of his title is gone. “I don’t even try to look too much into it,” he says. “I can’t do nothing about it. I just got screwed.”

This story has been updated to note the outcome of the June 20 U.S. district court fairness hearing.

Alleen Brown is a Minneapolis-based journalist whose work has appeared in the St. Paul Pioneer Press and at When she's not writing, she coordinates a community garden and enjoys her city's beautiful bike paths.

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