Facilitating Tribal Input on Indian Land Consolidation

BACKGROUND AND CHALLENGES

In 1996, Elouise P. Cobell and other Native American representatives charged the U.S. Government with gross mismanagement of Indian trust assets. Now, after fourteen years of litigation and several years awaiting legislative approval and final appeals, the settlement of one of the largest class action lawsuits in U.S. history is nearing its conclusion. The history of the suit stretches back to the Dawes Act of 1887, in which the federal government divided tribal lands into small parcels and assigned them to Indian head of households. The parcels were to only be held in trust by the federal government for 25 years; however, with changing laws, many of the lands remained permanently in government trust.

Although the allotment policy was repealed in 1934, tribal lands remain extremely fragmented and fractionated. Various parcels within one reservation may be owned by people from other tribes, or non-Indians. In other cases, single properties have so many owners – as the land was handed down as an undivided share to each successive generation – that each person's ownership interests are worth just pennies. In addition, highly fractionated land loses much of its value, and this has hampered economic development on reservations. The inflating number of landowners has also created huge administrative challenges for the federal government. The costs spent managing these lands and trust accounts often exceeds the value of the lands themselves.

In December 2010, President Obama signed into law the $3.4 billion settlement to the Cobell lawsuit, providing $1.4 billion to the plaintiffs in the suit, and up to $2 billion to the Trust Land Consolidation Fund, which will primarily be used to buy back fragmented lands. Individual Indians would be able to obtain cash payments for their fractional land interests, and land will be freed up for the benefit of tribal communities. The Fund will also set aside up to $60 million for Indian scholarships. The federal district court approved the settlement on June 20, 2011, and, although the decision was appealed, the Department of the Interior (DOI) began to formulate a plan for implementation in anticipation of the settlement’s final approval. In order to decide how to best conduct the land consolidation program, the Department of the Interior arranged for seven consultation meetings with tribes across the U.S. from July to October 2011. DOI asked CBI to facilitate the consultation meetings as they solicited input from the tribes about the goals and priorities of the program.

THE CBI APPROACH

CBI enables individual landowners and other stakeholders to share their concerns and opinions, which surfaces key tribal needs and requests; CBI synthesizes these themes in in-depth meeting summaries and creates a set of recommendations for the DOI.

Each consultation was held as a one-day meeting, drawing tribal leaders and other stakeholders from various parts of the country. Because the U.S. Federal Government has a government-to-government relationship with the tribes, the morning sessions at each meeting were reserved for formal consultations with elected tribal officials. However, in order to ensure that the voices of individual landowners and other stakeholders were also heard, the afternoon sessions were open for individuals to share their concerns and opinions.

CBI facilitated the seven consultations, organizing the logistics and agendas, and carrying out the necessary behind-the-scenes planning to ensure that the events were successful. Due to past tensions between tribes and the federal government, it was essential that all of the attendees felt welcomed, respected, and that they not only had the opportunity speak, but felt confident that their input was received and attended to. CBI also wrote in-depth summaries of each consultation meeting.  

One key theme that surfaced during the consultations was the need to clarify the tribal role in the land consolidation process. For instance, when the DOI sought feedback on how to prioritize the funds in the land-buying process – asking attendees whether they should first buy back the land with the greatest fractionation, or the land with the most willing sellers, etc. – the tribes responded with the overwhelming opinion that they, not the federal government, should carry out the land-buying process and decide how to prioritize the funds on their own reservations.

The tribal leadership appreciated that the consultations provided the chance to give their input on the land consolidation process. However, during the consultations, attendees also made it clear that they want to continue to be involved in the process. Attendees asked for the opportunity to comment on the draft plan once it is formulated, as well as ongoing opportunities to evaluate the process over the ten-year implementation period.

RESULTS

CBI categorizes and summarizes key issues into a final report, which informs DOI’s draft implementation plan to better address tribal needs and requests.

CBI prepared a summary of key themes drawing on specific participant comments for the Department of Interior to incorporate into their plan for implementing the land consolidation program. This plan is entitled "Cobell Land Consolidation Program Draft Plan", with a summary of public comments on pages 8 to 13, dated January 31, 2012. As the tribes requested, the draft plan included specific opportunities for the DOI and the tribes to develop collaborative agreements for the land consolidation program. It also included a commitment to work with tribes to identify priority lands and an opportunity for further input and feedback before a final plan is issued.