I am an Indian landowner with some undivided interest in fractionated land. How can I begin to use this fractionated land?
Because fractionated land is held in common, owners with undivided interests face many hurdles to use their land, whether they want to build a home, lease the land to others or start a business. The following are different types of consent required to use the land. The consent required depends on the type of transaction. In some cases, the number of owners with undivided interest in the land determines the level of consent as outlined in the Indian Land Consolidation Act (ILCA). Final approval rests with the BIA superintendent.

Majority Consent: In some instances, land can be used with majority consent. If the BIA had authority over the land prior to the passage of the Indian Land Consolidation Act Amendments of 2000, their position is that majority consent will suffice. Agricultural leases, right-of-ways and timber sales generally have pre-existing majority consent authority.

In some instances, the superintendent can act on behalf of undetermined heirs. For instance, if 33 percent of the undivided interest is in pending probate, the superintendent can act on behalf of the undetermined heirs to achieve the required consent.

Sliding Scale: If a pre-existing majority consent authority did not exist prior to the passage of the Indian Land Consolidation Act, the BIA uses the new sliding scale outline in the ILCA. Consent requirements are as follows:

1 to 5 owners = 100%
6 to 10 owners = 80%
11 to 19 owners = 60%
20 or more owners = majority of interests

Under the ILCA, the superintendent can act on behalf of undetermined heirs and individuals whose whereabouts are unknown to achieve the required consent.

Grant Authority: Sometimes the BIA superintendent can grant on behalf of all undivided heirs without their express consent so long as they are fairly compensated and all statutory requirements are met. For example, surface leases may be granted after a three-month negotiation period if none of the owners is in possession. If the heirs cannot negotiate a lease within 90 days, the superintendent can sign a lease—usually after advertisement—at fair market value on behalf of everyone. Many agricultural leases and grazing permits are made through grant authority.

Steps for Obtaining Consent

1. An individual or group of co-owners contacts the Bureau of Indian Affairs office about proposed use.
2. A land appraisal is completed to determine land value.
3. The BIA sends out 90-day notices to all co-owners to ask for consent of proposed use.
4. The BIA realty officer sends a recommendation to the BIA superintendent once the required number of co-owners has consented. They also provide proof that an attempt has been made to contact all co-owners.
5. The BIA superintendent makes a ruling based on the recommendation of the BIA realty officer. When appropriate, a lease is made. Non-consenting co-owners will receive fair market lease payments.

To Sell or Partition the Land:
Majority consent is required from co-owners to sell or gift deed one’s shares to a non-owner and tribal consent is required for gifts and sales to non-Indians and/or non-tribal members. The regulations that impose these consent requirements may be revised—or deemed to have been repealed—under section 217 of the ILCA.

If all co-owners consent, the land can be partitioned.

All title transactions regarding trust land must be approved through the Bureau of Indian Affairs.

I am an Indian landowner and wish to stop the fractionation of my land. How can I do this?

You can stop the fractionation of your land in several ways:

Writing a will
If an Indian landowner does not write a will, they have no control over who receives their property after their passing. Instead, the government decides. Tribes are also encouraging their members to write wills in order to settle land ownership at their passing. To stop fractionation, the will must identify the specific heir(s) to whom the land interest(s) will be left. Without a will, fractionation of the land continues and heirs receive ever-smaller undivided interests in the title to land rather than individual pieces of land. In order to make your will valid, you must obtain a BIA approved will form from your local agency. The will must be in writing, signed, witnessed by 2 people who are not included in the will, and authored by a person who is at least 18 years old and has the "capacity" to write a will.

Gifting or deeding interest to your tribe or another native person
To do this you must go through the BIA realty office.

Selling the interest to your tribe or another native person
This also must be done through the BIA realty office.

Consolidating land by exchanging multiple interests with your tribe
To do this, contact your tribe and the local BIA realty office

HOME | ABOUT | BOARD and STAFF | FAQs | EVENTS | PUBLICATIONS | DONATIONS | GRANTS |
LINKS | RESOURCES | SHOPPING | CONTACT US | PRIVACY POLICY

© Copyright 2002-2008 Indian Land Tenure Foundation®. All rights reserved.