History of Indian Land Consolidation

In 1887, Congress enacted the General Allotment Act. This act carried out the allotment policy, which was aimed at breaking up Tribes and Tribal lands and assimilating Native Americans into non-Indian society.

Under the policy, Tribal lands were divided up and “allotted” to individual Tribal members. After allotments were made, any remaining Tribal land was deemed “surplus” by the Federal government and opened to non-Indian settlement. Allotment was not voluntary; the General Allotment Act contained no provision for consent by Tribes or their members.

The allotment policy quickly proved to be devastating for Native Americans. Between the inception of the policy and its end in 1934 over 90 million acres passed out of Indian ownership and control. Apart from the sheer loss of land, allotment gave rise to the problem of fractionation that persists to this day.

Published in 1928, the Meriam Report provides an independent, contemporaneous account of the destructive impact of the allotment policy. According to the report, not only did the allotment policy fail at achieving its professed assimilation goals, but it resulted in widespread poverty among Native Americans.

The 1934 Indian Reorganization Act reversed Federal Indian policy aimed at assimilation and officially ended allotment. The act also provided means to reduce the loss of Indian land and rebuild the Tribal land base.

Ending the allotment policy, however, did not prevent the ongoing fractionation of existing allotted land. With each successive generation, ownership in allotted lands became increasingly divided among more heirs.

In the early 1960s, in-depth congressional reports were published on fractionation and legislation was introduced to alleviate what was recognized as an ever-worsening situation. While there was broad agreement on the causes and consequences of fractionation, two more decades passed before action was taken by Congress to address it.

Congress enacted the Indian Land Consolidation Act in 1983. The act sought to reduce fractionation by prohibiting small land interests from passing to heirs upon an individual Indian landowner’s death. Instead, small land interests would revert or “escheat” to Tribal ownership.

No payment of compensation to the heirs was provided for escheated interests under the act. And, like the General Allotment Act, the escheat provision of the Indian Land Consolidation Act was not voluntary.

In 1987, the United States Supreme Court ruled that the escheat provision amounted to an unconstitutional taking without just compensation. Although the provision was amended in an effort to address constitutionality concerns, the Supreme Court again ruled it unconstitutional in 1997.

In 2000, Congress enacted amendments to the Indian Land Consolidation Act aimed at providing a comprehensive Federal solution to fractionation. Recognizing that the fractionation problem resulted from the rejected Federal Indian policy of allotment, and that it would continue to grow without remedial Federal action, the amended act declared it to be the policy of the United States to:

• prevent further fractionation;
• consolidate fractional land interests;
• consolidate fractional interests in a manner that enhances Tribal sovereignty;
• promote Tribal self-sufficiency and self-determination; and
• reverse the effects of the allotment policy on Tribes.

In addition to providing land inheritance-related rules designed to reduce further fractionation, the 2000 amendments also authorized a second, proactive approach for reversing the fractionation process: voluntary Federal acquisition of fractional land interests for consolidation under Tribal trust ownership. Congress authorized a 3-year pilot program for acquiring fractional interests in trust or restricted land—with landowner consent and at fair market value—and restoring acquired interests to Tribal ownership.

The pilot program was established in the Bureau of Indian Affairs Midwest Region with an initial appropriation of $5 million. The pilot program demonstrated that acquiring fractional interests from willing sellers is an effective approach for reducing fractionation and permanently halting the fractionation process on acquired lands. The pilot program’s success at three initial reservation locations indicated that if adequately funded and implemented more broadly, voluntary acquisition could significantly decrease the rate of fractionation.

In 2004, the Indian Land Consolidation Act was amended again. The 2004 amendments, also known as the American Indian Probate Reform Act (AIPRA), created a uniform Federal probate code applicable to most individually-owned trust and restricted Indian lands in an effort to minimize future fractionation. However, AIPRA also recognized the importance and effectiveness of voluntary acquisition in reducing fractionation, and accordingly made the pilot program permanent. Under AIPRA, Congress authorized the appropriation of $750 million for voluntary acquisitions over the next 6 years, and imposed a requirement on the Federal government to minimize associated administrative costs by streamlining and improving land acquisition policies and procedures.

From its creation as a pilot program, the Indian Land Consolidation Program led voluntary land acquisition efforts for over a decade until it was replaced by the Land Buy-Back Program for Tribal Nations. Although it only received approximately 20% of the $750 million authorized by Congress in 2004, the Indian Land Consolidation Program succeeded in acquiring a total of 427,313 fractional interests and consolidating 642,555 equivalent acres under Tribal ownership.

The Land Buy-Back Program for Tribal Nations (Buy-Back Program) was established in 2012 pursuant to a court settlement. The court case that led to the settlement, Cobell v. Salazar, was precipitated by the fractionation problem. Specifically, the case was brought as a class action against the Department of the Interior by individual Indian landowners asserting mismanagement of income earned on fractionated lands. The case was settled in 2009 for $3.4 billion, with $1.5 billion allocated for direct payments to the plaintiffs, and $1.9 billion allocated for addressing the fractionation problem that led to the litigation.

The Cobell settlement presented an historic opportunity to address fractionation on an unprecedented scale, with the $1.9 billion land consolidation fund available to reduce fractionation within a 10-year period ending in November 2022. The fund was available to the Department of the Interior for voluntary land acquisition in accordance with the requirements of the Indian Land Consolidation Act, as amended. The Interior Secretary established the Buy-Back Program to ensure implementation of the Cobell settlement’s land consolidation components.

To achieve its time-limited mission, the Buy-Back Program developed streamlined, standardized, automated, and cost-effective processes and procedures for acquiring fractional land interests and transferring title to Tribes. These improvements enabled the Buy-Back Program to acquire fractional land interests quickly and efficiently, minimizing administrative costs as required under the Indian Land Consolidation Act.

With the funding made available under the Cobell settlement, the Buy-Back Program succeeded in acquiring over 1 million fractional interests and consolidating approximately 3 million equivalent acres at 53 locations across Indian Country.

The Buy-Back Program significantly reduced and helped slow the growth of fractionation. But the funding available from the Cobell settlement was not sufficient to purchase all eligible fractional interests from willing sellers and the fractionation process continues.

At the program’s conclusion in November 2022, approximately 2.4 million fractional interests remained at 150 locations, comprising over 5.6 million equivalent acres with an estimated value of several billion dollars. Without sustained efforts to reduce fractionation, the considerable achievements of the Buy-Back Program will be diminished as ownership in allotted lands continues to divide over successive generations.

In 2022, Congress authorized the Bureau of Indian Affairs to build upon the success of the Buy-Back Program by continuing to reduce fractionation through voluntary acquisition, with an initial appropriation of $7 million. Continued voluntary acquisition efforts will be led by the Bureau’s Division of Trust Land Consolidation (DTLC).

Like the Buy-Back Program and the Indian Land Consolidation Program before it, the DTLC seeks to reverse the adverse effects of the allotment policy by purchasing fractional interests in trust or restricted land from willing sellers, at fair market value, and restoring purchased interests to Tribal trust ownership. In accordance with the declared policy of the United States, the DTLC acquires interests in a manner that enhances Tribal sovereignty and promotes Tribal self-determination. In addition, the DTLC incorporates the highly efficient processes and procedures developed during the Buy-Back Program to minimize administrative costs and maximize the effectiveness of available funds.