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Avoiding Land Fractionation in Indian Country
Options Available
to Prevent Land Fractionation
Part II of IV
This is the second article of this series of four on trust land fractionation in
Indian Country. This article will discuss the Indian Land Consolidation Act (the
ILCA)of 1983 and the 2000 Amendments.
The
ILCA was enacted to help eliminate the division of trust allotments into smaller
pieces created through inheritance. Some allotments have hundreds of co-owners
that make it almost impossible for anyone to use the land. The original law had
a two percent “escheat” clause. If an allotment share was two-percent or less,
the share would automatically return to tribal ownership. The Supreme Court
found this an unconstitutional taking of the land, and Congress enacted the 2000
Amendments in response to the Court’s ruling.
The
ILCA 2000 Amendments encourage tribes to eliminate small shares of trust land
through consolidation, tribal codes, and exchanges.
A
consolidation plan allows a tribe to purchase small, fractionated interests in
the name of the tribe, and keep these interests in trust. To date, only a few
Indian nations are part of the federally funded pilot program to purchase
fractionated land interests of two-percent or less in the name of the tribe.
The
ILCA 2000 Amendments also encourages tribes to enact probate and inheritance
codes. These codes must be approved by the Interior, and they must be written in
accordance with the ILCA goals. When a tribe enacts these codes, the tribe
decides how trust land can be distributed.
The
ILCA also allows heirs to exchange fractionated interests among themselves to
create larger shares in one parcel of land, rather than many small interests in
different parcels of land.
A new
law was signed into effect on October 27, 2004 called the American Indian
Probate Reform Act of 2004 (Public Law No: 108-374), which amends the Indian
Land Consolidation Act. This new law will change the way trust land is passed on
when the trust land owner does not write a will and it will change how the trust
land is probated. However, until that law is certified by the Secretary of the
Interior, the information contained in this article remains in effect.
Note: Dakota Plains Legal Services is providing this information in
partnership with this newspaper as a public service. This article is not
intended as legal advice. Always talk to a lawyer before taking any legal
action. |
