Terry Beckwith: Indian land can be held in trust, but anything built on it won’t be valued by Interior Department

“…WHEREAS, the interim final rule states that as a general rule, the Department of the Interior considers permanent improvements to be non-trust property and that Tribal or State courts, and not the Office of Hearings and Appeals (OHA), are responsible for probating such improvements; and WHEREAS, not allowing these improvements to be probated by OHA will further contribute to the probate backlog and has negative legal and policy implications beyond AIPRA and ILCA, including subjecting such improvements to state jurisdiction and taxation.”

By Terry Beckwith Posted from the ICC Indian Enterprises newsletter at www.ICCIndianEnterprises.com

I grew up during termination and termination has been very clear in my mind during the last several years with all that has been going on as it relates to the tribal/federal relationship. Termination was a policy period we grew up with in the 1950’s and early 60’s. Termination could be described as the government getting out of the Indian business. Klamath tribe in Oregon and Menominee Tribe in Wisconsin were two of the large tribes that were terminated along with over 40 tribes in California and several other tribes. There were still people with the termination mentality in the BIA when I started my BIA career. In January of 1973 I went to work for Judge RJ Montgomery in Portland. We probated estates in the Northwest. During our days at Colville we often heard Lucy Covington talking about termination and Colville’s battles fighting off termination.

Today we are fighting another termination by the United States, (here’s link to new issues in crisis management training class). It is a quiet termination. Housing is being classified as personal property (read the Indian Land Working Group objection letter to the Interior Department) by people in the Department of Interior. Homes attached to land are real property everywhere else. When we see a position like this we may not think much about it. We need to be concerned about this definition. In the 1960’s the Department of Housing and Urban Development (HUD) started building houses on allotments. In some cases they built homes for people on allotments not owned by the individual recipient of the house. Some homes were built on two parcels of land. A person on the San Xavier reservation had four homes built partly on his allotment without his consent.

There were so many problems with HUD homes on the San Xavier reservation we sent a memo from Papago Agency to Phoenix Area Office. The several page memo was forwarded to Central Office (Washington). There were so many problems with the houses at San Xavier it would be very costly to the government to correct the problem or compensate for the landowners rights that had been taken. That 1981 memo has not been answered. This problem exists on nearly every reservation that has individual ownership. The problem is much greater than anyone can imagine and it is a nationwide problem. Since 1998 we have brought this problem to the attention of HUD but have never received a response to our inquiries.

With the BIA’s Housing Improvement Program (HIP), we have the same problem. A person would get a grant for a HIP house. The regulations require you have an interest in the allotment. If you did not own the entire allotment, you should have a “leasehold interest.”

On one reservation people were receiving a grant from the tribe for a house. The person with the largest interest came back home and could not get a home because there were homes all over the usable property and there was no available property to build on.

The Problem: If the government can make homes personal property, they probably will not have a responsibility for homes being located on a property illegally. It takes the government out of a liability problem that is in the tens of millions of dollars.

A second concern is the county’s ability to tax personal property on non-members. I am a tribal member at Quinault and own land on the Chehalis reservation. The county cannot tax trust property but they may be able to tax personal property of a non-member, i.e. a trailer.