Fractionation of Indian land


	One way the General Allotment Act made it much more difficult to use land was through its restriction of the ways that allotted Indian land could be passed from one generation to another. According to the General Allotment Act, if an allottee died, then his land would be transferred to his relatives according to inheritance and descent law (or “probate law”) of the state in which the allotment was located. Very often, these laws would dictate that after an Indian allottee died, ownership of the land would be divided up between his or her heirs. The land would not be physically divided, but each Indian heir would receive part of the ownership, or an “undivided interest” in the land. However, the drafters of the General Allotment Act did not look far into the future to discern the serious problems that would result from this type of division of Indian land ownership. To understand this problem, imagine that an Indian allottee dies and passes on the ownership of the allotment to her spouse and three children. Divided interest in the land is now split between four people. Now imagine those children becoming adults and raising families of their own, each consisting of three children. When the second generation dies, and if all the grandchildren survive, then ownership is divided between all of the grandchildren. The ownership of the original allotment is now split between nine different people or possibly more depending on whether the spouses of the second generation are still alive. As each generation passes on, the number of owners of a piece of land grows exponentially. Today, it is not uncommon to have more than 100 owners involved with an allotment parcel.









			Fractionation complicates land use because multiple owners must agree on its use. Gaining consent of the landowners is extremely difficult because of the sheer number of ownerships. In many cases, some of the allotment owners are not on the same reservation as the allotment and the Bureau of Indian Affairs (BIA) often refuses to give a list of heirs to a person interested in knowing who he or she has to contact in order to gain consent to use the land. Furthermore, the increasingly overwhelming volume of record keeping associated with allotments contributes to the shocking slowness of the BIA to process the heirship of lands when an allottee dies. Without prompt processing of probates, ownership of an allotment remains uncertain, thereby creating great difficulty for heirs who wish to use the land. It is not unheard of for the probate of allotments to take 20 years after an Indian allottee has died.

	All of this results in a great amount of economic inefficiency and hardship. It costs an enormous amount of money to keep track of all of the fractionated ownerships of Indian land with very little benefit accruing to the individual Indian. Take the following example issued in a 1984 U.S. Supreme Court case, Hodel vs. Irving:
		Tract 1305 [of Sisseton-Wahpeton Lake Traverse reservation] is 40 acres and produces $1,080 in income annually. It is valued at $8000. It has 439 owners, one-third of whom receive less than $.05 in annual rent and two-thirds of whom receive less than $1… The common denominator used to compute fractional interests in property is 3,394,923,849,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its $8000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560 annually. Hodel vs. Irving, 481 U.S. 704, 713 (1987).
	Furthermore, the complexity and uncertainty of ownership lends itself to irresponsible behavior on the part of the U.S. Government, as the recent Cobell vs. Salazar lawsuit has shown. All the while, much Indian land is not being used in ways that would improve Indians’ quality of life. Fractionation is without a doubt one of the most critical issues in Indian country today.


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