Dealing with the Whip End of Someone Else's Crazy: Individual-Based Approaches to Indian Land Fractionation

By Franken, Anthony J. | South Dakota Law Review, Summer 2012 | Go to article overview

Dealing with the Whip End of Someone Else's Crazy: Individual-Based Approaches to Indian Land Fractionation


Franken, Anthony J., South Dakota Law Review


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.

I. 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)

II. BACKGROUND

A. 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. …

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