Cobell v. Salazar Five Civilized Tribes

1. Cobell v. SalazarFive Civilized Tribes Presented by Linda Donelson, Realty Director, May 6, 2010

2. 1893 Dawes Commission • Separate from the more commonly known, previously enacted, Dawes Act, the Dawes Commission in 1893 authorized enrollment of the Five Civilized Tribes consisting of the Cherokee, Creek, Choctaw, Chickasaw and Seminole citizens. 1898 Curtis Act • This Act mandated the allotment of tribal lands in Indian Territory, including the lands of the Cherokee, Creek, Choctaw, Chickasaw and Seminole Nations. Section 11 stated that after the roll was completed and the land surveyed, the land was to be divided up into allotments.

3. Act of April 26, 1906 • The Rolls closed March 4, 1907. • Allotments were to be 160 acres of homestead land. Minors received 40 acres. If agricultural land was selected or received, then 80 acres was granted. If the acreage was for grazing, then 160 acres was allowed. • Section 16 provided that lands not reserved or allotted were to be sold by the Secretary of Interior and the proceeds deposited and credited for the respective tribes. The balance of the funds was to be distributed per capita to the members then living and the heirs of the deceased.

4. Act of May 27, 1908 • Eminent domain was allowed for public purposes. • Section 9 stated the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land; and stated no conveyance of any interest of any full-blood Indian heirs shall be valid unless approved by the court having jurisdiction; and stated any member, of ½ or more Indian blood of the Five Civilized Tribes, survived by issue born since March 4, 1906, leaving a restricted homestead, said homestead shall remain restricted during their life or lives, until April 26, 1931.

5. Act of June 14, 1918 • Provided for a determination of heirship in cases of deceased members of the Cherokee, Choctaw, Chickasaw, Creek and Seminole Tribes of Indians in Oklahoma, conferring jurisdiction upon the district courts to partition lands belonging to full blood heirs of allottees of the Five Civilized Tribes, and for other purposes. Provided any land conveyed upon an election to take in a partition suit at the appraised value, shall remain subject to all restrictions and taxation held before the partition. • Prior to the passage of this Act, there was no means by which facts as to heirship could be determined in a proceeding insofar as Restricted Indians were concerned. (W.F. Semple, Oklahoma Indian Land Titles Sec. 241) Funds in accounts were previously distributed after death of allottees on ex parte affidavits as to heirship.

6. Act of April 10, 1926 • Allowed the statutes of limitations of the State of Oklahoma be applicable to and have full force and effect against all restricted Indian lands of the Five Civilized Tribes, and against the heirs or grantees of any such Indians. This allowed adverse possession of Indian allotted restricted lands. • Also provides notice be served upon the Superintendent (for Cherokee Nation this is the Regional Director) of the Five Civilized Tribes of suits against restricted Indians. Legal action filed in state court may be removed to Federal Court at the discretion of the Indian Tribe or the United States.

7. Act of May 10, 1928 • Extended the period of restriction in lands of certain members of the Five Civilized Tribes. The provisions of April 26, 1906 and the amended provisions of section 8 approved May 27, 1908, were continued until April 26, 1956. • Section 3 provided mineral income from restricted lands be subject to taxation after April 26, 1931. • Section 4 provided after April 26, 1931, the allotted, inherited and devised restricted lands of each Indian of the Five Civilized Tribes in excess of 160 acres be subject to taxation by the State of Oklahoma. Tax exempt certificates on the 160 acres or less were to be filed in county offices to remain non taxable.

8. Act of August 4, 1947 known as the 47 Act and as the Stigler Act • Provided transfer of Restricted land by deed approval action in county court. • Probate of restricted Indian land to be administered in State court. • Required Notice to Five Civilized Tribes Superintendent within 10 days of filing actions involving restricted Indian land. (Deed Approval, Quiet Title, Probates) • Tax-exempt restricted lands of any Indian of the Five Civilized Tribes in Oklahoma shall not exceed 160 acres, however acquired.

9. Act of August 11, 1955 • Allowed extension of restrictions on lands from April 26, 1956, to be for the lives of the Indians who own such lands, for those Indians having a blood degree of one-half or over Five Civilized Tribes. • Any interest in restricted and tax exempt lands acquired by descent, devise, gift, exchange, partition, or purchase with restricted funds shall continue to be tax exempt during the restricted period.

10. Prior to statehood Cherokee Nation consisted of what was to become 8 full counties and parts of 6 others in northeast Oklahoma. • 4,420,067.75 acres of tribal land were conveyed by patent by the United States of America to Cherokee Nation on December 31, 1838.

11. Allotments of land based on the value of 110 acres or $325.00 was made to all enrolled members, a few people received money in lieu of land. • 41,824 Citizens Enrolled • 40,196 Received Allotments • 8,703 enrolled as full blood 1,803 enrolled as ¾ blood 2,975 enrolled as ½ blood or more but less than ¾ (13,481) = ½ blood or more • 28,343 enrolled as less than ½ blood

12. 4,346,200 acres allotted 50,965 acres unallotted – sold 22,880 acres reserved for Rail Roads, Town sites, etc… • Allotments were made by deeds or patents signed by the Principal Chief, with reference to a particular Act of Congress as to Restrictions against alienation. This as opposed to “USA in Trust” as were lands allotted under the General Allotment Act. • The Act of May 27, 1908 (35 stat. 312) and numerous other acts affecting the Five Civilized Tribes of Oklahoma removed restrictions from less than ½ blood individuals. Lands of 28,343 enrolled Tribal members – approximately 3 million acres, became taxable.

13. Cherokee Nation’s “Indian Lands” in Cherokee Nation jurisdictional area includes the following acres: Tribal Trust 57,610 Tribal Fee 5,984 USA 419 Individual Lands 45,000 approx. (Restricted & Trust) TOTAL 109,104 Acres

14. Cobell v. SalazarApril 2010 Updates • April 8,2010 Status Conference Hearing provided Congress an additional six (6) weeks extension to Act. The extension to May 28, 2010 allowed Congress to take action prior to the Congressional Memorial Day recess. • April 10, 2010 Department of the Interior offices of Trust Records filed its Status Report for March 2010 activity on Cobell v. Salazar. • April 27, 2010 Senator John Barrasso, Vice Chairman, Committee on Indian Affairs, corresponded with Tribal Leaders his intent to propose amendments to the December 7, 2009 Class Action Settlement Agreement between Department of Justice and Department of Interior and the plaintiffs in Cobell v. Salazar.

15. Cobell v. Salazar • Jurisdiction over probates of the Five Civilized Tribes’ original allottees’ restricted tracts of land was granted to the District Courts of the State of Oklahoma. • This fact alone has caused a back log in probates of Cherokee and other Five Civilized Tribes lands as the heirs of the original allottee of the land has to bear the cost of the probate of land, and monies in IIM Accounts derived from the land. These heirs cannot afford to pay the cost of a probate in which the minimal charge is approximately $2,500 plus costs of filing and publishing notices. Most of the restricted Indians have been unable to afford the probates and; therefore, the property and IIM Accounts remain in Estate status.

16. Proposed Settlement states for Historical Accounting Class it includes everyone alive on 9-30-2009 that had an IIM Account with at least one cash transaction prior to 9-30-2009. • Cherokee Nation has 1,754 IIM Accounts. Of these accounts, 1,085 holders may have been alive on 9-30-2009, for a potential payment of $1,085,000 at $1,000 per account. (Not all of these would have had a cash transaction.) • As to the 669 IIM Estate Accounts, these accounts under the criteria set forth above would not be eligible for participation in the settlement, whether in trust or restricted. To probate these Estate Accounts in State District Court could easily be in the 1 million dollar range. • Had these accounts been probated, there would be a substantial amount of individuals who would have had IIM accounts created in their names, and these persons would have been a part of the Settlement. Due to the fact that heirs to the accounts could not afford to have probates on the restricted accounts, they are penalized for being a Five Civilized Tribe Indian.

17. The proposed Settlement proposed a New Trust Administration Class wherein beneficiaries alive on 9-30-2009, who have or had an IIM Account from 1985 to present, and Indians who had a recorded ownership interest in land as of 9-30-2009 would participate in the Settlement. • Again, Indians who are of the Five Civilized Tribes would be severely affected due to the inability to afford probates of their family allotted land. If an Indian has to have a recorded ownership interest in land on 9-30-2009, and that land has not been probated, then this Indian will not participate in the settlement. • Example: One family allotment of 20 acres in Delaware County, Oklahoma, has 60 decedents in the lineage with approximately 125 living restricted heirs. Using the baseline of $500 per person ownership, this family could have been eligible to receive $62,500. However, due to their inability to afford to do the required probate or even a quiet title suit, they would not be able to participate.

18. Restricted status of the land is tied to blood degree of the owner. Should the heir of a tract of land be less than one half degree Five Civilized Tribe blood, this heir’s share of the estate will become unrestricted. Only an individual with one half or more degree Five Civilized Tribe blood may retain restricted status on the land. • Some of the estates are not probated due to the fact that a business enterprise may exist on the tract. Probate of such a tract could result in the loss of restricted status and, therefore, loss of the business enterprise.

19. At this time, there may be approximately 4,000 restricted Allottees, many of whom have interest in more than one restricted tract. Most of these tracts have not been probated. • Will these estates be penalized from receiving a share of the settlement because the heirs cannot afford to probate their family estates? • The Cherokees, Creeks and Choctaws are not on TAAMS and are not able to use that system for notice as to the Settlement. • It could be 2 to 3 years to get these tribes on line on TAAMS. How will this affect our tribe? • It could cost millions to get all our Five Civilized Tribes’ tracts on TAAMS.