Indian Allotments and Co-Ownership

By Jedd Parr, CILS Sacramento office Directing Attorney

Spread across the state of California are hundreds of Indian “allotments.” These are parcels of land issued to individual Indians by the federal government.  The federal government holds legal title to the land in trust for the benefit of individual Indian co-owners.[1]  Allotments are different from “assignments,” the latter being tribal lands assigned by the tribe to its members, usually for housing purposes.  Much can be said about the detrimental effects that breaking up Indian reservations and allotting the land to individuals had on tribes and tribal governments, but the focus of this blog is on how current-day allottees can use their land.

There are over 400 allotments on non-reservation lands in California (called “public domain allotments”).  Allotments can be found on reservations as well.  The probate rules for allotments upon the death of the original allottee provided that the land could be divided between the allottee’s spouse, children, grandchildren, and others.  Over time, these probate rules resulted in allotments having multiple if not hundreds of co-owners, each jointly owning a small fractional interest in the land.  The result of joint ownership is that each person has an “undivided interest” in the land, with no one person owning any specific piece of the land, but everybody owning the land together.  In other words, a co-owner who owns a 5% interest cannot just build a fence around 5% of the allotment, claim it for their own, and exclude other co-owners from that area.  Instead, that person owns 5% of every square foot of the land and shares every square foot with the other co-owners in proportion to whatever percentage they own.

Joint ownership leaves many allotment interest holders asking, “Am I allowed to live on my allotment?”  The answer is a qualified “yes,” but there are important details that need to be understood before moving on to the allotment.  Because a co-owner has an undivided interest, they could choose to build a house on the allotment, but they would not have the legal right to exclude any other co-owners from the house or the land it sits on.  This could make for a lot of potential roommates.

Many co-owners still choose to live on their allotment, often with an informal understanding with the other co-owners that they will not interfere with that person’s occupancy – perhaps in exchange for the other co-owners living on the allotment with the same understanding.  Such an arrangement could lead to  future problems as the land is passed down to new heirs, and who may not be willing to agree to the same understanding as their predecessors.  Unfortunately, an informal agreement may be the only practical way for people to make use of the land, as the formal means for obtaining the exclusive right to live on a portion of the land – a residential lease – can sometimes be difficult to obtain.

Residential leases are governed by federal regulations and are issued by the Bureau of Indian Affairs (BIA).  The difficulty in obtaining a lease is meeting the consent requirement; namely, getting enough co-owners who own enough of a percentage in the land to agree to the lease.  For allotments with 1-5 co-owners, the percentage needed is 90%; with 6-10 co-owners, 80%; with 11-19, 60%; and with 20 or more, anything over 50%.  One can imagine difficulties with all of those thresholds.  For example, imagine an allotment with 50 co-owners, each holding a 2% interest.  A co-owner with their own 2% interest would still need the consent of 25 other people to cross the applicable 50% threshold.  This example of an even division of interests is for illustrative purposes only, since in reality there will be different co-owners with different percentages of ownership, some higher and some lower.  But as you can see, someone who wants a lease in order to build a house on an allotment is likely to need permission from multiple people to do so.

To date, there has been no clear answer on how to solve the problem of using highly fractionated allotments.  However, in recent years, the BIA has used a “Buy-Back” program to target certain reservations with highly fractionated allotments, whereby they purchase small interests from the co-owners and return the consolidated land or portion of land to the tribe.  Also, the federal American Indian Probate Reform Act includes the possibility of co-owners pooling their interests and creating a formal management entity that can operate as a sole decision-making body on behalf of many, streamlining part of the process.  These options certainly have their challenges in terms of funding and proper administration, but at least they represent potential solutions to an issue that has for far too long kept many Indian allotment interest holders from enjoying the benefits of their land.

[1] For convenience’s sake, I will use the term “co-owners” here to refer to individuals holding an interest in an allotment, instead of being cumbersomely accurate with “co-beneficial interest holders.”

Domestic Violence Legal Services Fundraising

Since 2015, CILS’ Escondido Office has provided legal representation to Native American survivors of domestic violence (DV) and sexual assault (SA). This vital legal program was funded through a federal grant from the federal Office on Violence Against Women (OVAW). CILS was not awarded an OVAW grant this year. Without financial support from the donors and the community, our DV and SA legal advocacy program is in jeopardy of closing down.
We are currently looking for grant funding opportunities but are in immediate need of $135,000 to sustain our DV Legal Team past December 31, 2020. We are asking for contributions to keep our program going. Any amount of assistance will help us!
Our DV Legal Team consists of a highly skilled and experienced attorney and legal advocate who have been with our program since its inception. Our program primarily services San Diego, Riverside, and San Bernardino counties and provides culturally appropriate, trauma-informed, mobile services to our Native clients. Our DV and SA legal program has helped to save survivors’ lives with safety planning and legal advocacy.
While the current pandemic makes our request for donations challenging, the COVID-19 pandemic has caused a spike in DV making our services all the more critical, necessary, and in demand. Please help us sustain these vital legal services as we work to find more funding resources!
Your donation is tax-deductible and will be a write off for you for 2020 if made on or before 12/31/20. Please push the button below to donate. Thank you!

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TRIBAL ALERT: Tribal Letters of Support for Federal Legislation to Extend Coronavirus Relief Funds Deadline

Hopefully, you have received the email sent out today from the Native American Financial Officers Association (NAFOA) urging you to send a letter of support for S. 4898. This new legislation will extend the period for all states, tribes, and territories to use the Coronavirus Relief Fund payments from December 30, 2020, to September 30, 2021. California Indian Legal Services strongly urges tribes to submit the letter of support for S. 4898 using the support letter template provided by NAFOA (download the letter here) or contact CILS for any assistance or questions you may have.

You can reach out to NAFOA’s Executive Director, Dante Desiderio, at Danta@nafoa.org or (202) 631-2003 or Mica Llerandi at mllerandi@calindian.org. Thank you.

 

Stay safe and healthy.

Will AB 3099 create a more uniform and positive response to criminal activities occurring within California Indian Country?

By Denise Bareilles, CILS Eureka office Directing Attorney

Governor Newsom signed Assembly Bill 3099 into law on September 25, 2020.  What will it accomplish?

Under Public Law (PL) 280, passed in 1953, the state of California was granted concurrent criminal jurisdiction in all of California “Indian Country”[1].  What this means is that the state can enforce its criminal laws on the reservation and tribes can also enforce their own laws on their lands.[2]  PL 280 can and often does create jurisdictional uncertainties, inconsistencies and confusion on when and how state and/or tribal authorities should respond to crimes in Indian Country. AB 3099 seeks to address policing issues in Indian Country.

AB 3099 will provide technical assistance to state and local law enforcement agencies with Indian lands within or near their jurisdictions as well as to tribal governments with a tribal land base, regardless of whether the tribes have law enforcement agencies.

Furthermore, AB 3099 will address missing and murdered Native Americans in California by determining how to increase state criminal justice protective and investigative resources for reporting and identifying missing Native Americans in California, particularly women and girls.

AB 3099 will directly impact 34 county sheriff agencies which have Indian lands within or near their jurisdictions and 109 California tribes with reservations or rancherias. There are also numerous individual Indian trust allotments that will impacted.

The California Department of Justice is charged with implementing AB 3099.  Below are the specific AB 3099 mandates:

The first mandate addresses the inconsistent application of PL 280 throughout California Indian County  

  • Provide guidance for law enforcement education and training on policing and criminal investigations on Indian lands that support consistent implementation of California’s responsibilities for enforcing statewide criminal laws on Indian lands that protect the health, safety, and welfare of tribal citizens on Indian lands.
  • Provide guidance on improving crime reporting, crime statistics, criminal procedures, and investigative tools for conducting police investigations of statewide criminal laws on Indian lands.
  • Provide educational materials about the complexities of concurrent criminal jurisdiction with tribal governments and their tribal law enforcement agencies, specifically to tribal citizens on Indian lands, including information on how to report a crime, and information relating to victim’s rights and victim services in California
  • Facilitate and support improved communication between state and local law enforcement agencies and tribal government or tribal law enforcement agencies for consistent implementation of concurrent criminal jurisdiction on California Indian lands.

The second mandate addresses the crisis of missing and murdered Native Americans in California, particularly women and girls (not limited to Indian lands).

  • Determine the scope of the issue of missing and murdered Native Americans, particularly women and girls.
  • Identify barriers in reporting or investigation.
  • Identify ways to create partnerships to increase cross-reporting and investigation among federal, state, local and tribal governments, including tribal governments without tribal law enforcement agencies.
  • Outreach to tribal governments in California, Native American communities, local, tribal, state, federal law enforcement agencies, and state and tribal courts.
  • Submit a report to the Legislature upon completing the study that will describe the data collected, an analysis of the number of missing Native Americans in California, particularly women and girls, and the barriers preventing the provision of state resources to address the issue(s).
  • Recommendations, including proposed legislation, for improving the reporting and identification of murdered and missing Native Americans in California, particularly women and girls.

 

See here the full text of Assembly Bill 3099

 

[1]  “Indian Country” is defined under federal law as including: tribal lands, Indian allotments and dependent Indian communities.  18- U.S.C. § 1151

[2] Please note that PL 280 also granted the state of California limited civil jurisdiction in California Indian Country.

What is Indian Law?

By Jedd Parr, CILS Sacramento office Directing Attorney

Indian law is rooted in two main concepts – first, that Indian tribes are sovereign entities with powers which predate the U.S. Constitution, including the inherent power to make their own laws and be governed by them, and second, that there is a political relationship between the federal government and Indian tribes which generally removes tribes from state jurisdiction.

The first concept seems obvious, as tribes have occupied North America since time immemorial.  The second draws largely from the Constitution’s Indian Commerce Clause, giving Congress the sole power to regulate commerce with Indian tribes.  As is true in other practice areas, case law has been the most significant factor in defining exactly how Indian law is built on these bedrock concepts.  Beginning with a series of Supreme Court decisions in 1823-1832, commonly referred to as the “Marshall Trilogy” since they were principally authored by then Chief Justice John Marshall, case law has laid the foundations of Indian law – one key principle being that while Indian tribes retain certain aspects of their original sovereignty, Congress can abrogate that sovereignty unilaterally.

There are competing views of whether a federal law may be imposed upon tribes only when Congress expresses an intent to do so explicitly, or whether Congress, without saying so, implied that the law would apply to tribes.  For many years, the first view was widely accepted – that an intrusion upon the right of tribes to be governed by their own laws must be plainly set forth in the federal law itself, or in the legislative history of the law’s passage.  But in 1985, the Ninth Circuit Court of Appeals held that a federal law which was silent on whether it was intended to apply to tribes would apply by default unless one of three exceptions was present: 1) if it interfered with “exclusive rights of self-governance in purely intramural matters;” 2) if it would abrogate rights guaranteed by treaties, or 3) if it could be shown (by legislative history or otherwise) that Congress did not intend the law to apply to tribes.  This position has been widely criticized by scholars of Supreme Court jurisprudence but has been adopted by several federal appellate circuits, while others remain of the view that a tribe’s sovereignty may only be undermined explicitly.

Direct and tribal-specific actions of Congress have also affected tribal sovereignty, though unintended consequences have sometimes been the result.  For example, in California, the passage of Public Law 280 in 1953 by Congress had a tremendous effect.  Under Public Law 280, the transfer of federal criminal jurisdiction on Indian lands to the state, and the provision for limited state civil jurisdiction on those lands, inadvertently created a new state-tribal concurrent jurisdictional maze, the parameters of which are still being litigated today.

Thus, Indian law today is highly varied and complex.  An Indian law case can be a question of purely tribal law, or the interplay of tribal and state law, or of tribal and federal law, or even all three simultaneously.  It can involve the rights of individuals, or of tribes, or of one or both of those in relation to the state or to each other.  It can pertain to activities both on and off Indian reservations.  This mosaic is laid over a number of practice areas – real property, taxation, child welfare, environmental and cultural resource protection, an inheritance of estates, public safety, religious practices, public benefits, contracts, and torts, just to name a few.  At CILS, we are proud to work in this field and to assist wherever we can to protect and advance Indian rights, foster Indian self-determination, and facilitate tribal nation-building.