THE OKLAHOMA BAR JOURNAL 32 | APRIL 2024 may be placed in a trust approved by the secretary of the interior.44 A real estate attorney might suggest partitioning a trust or restricted allotment so that each heir receives their own discrete tract of property rather than sharing the larger property with several co-owners. There is no shortage of creative solutions, but many of those solutions will not be apparent to attorneys unless they understand the origins and effects of fractionation and the legal options available to curb its worst excesses. CONCLUSION The Land Buy-Back Program for Tribal Nations successfully reduced fractionation in Indian Country during its decade-long existence. Now that the program has expired, however, fractionation is projected to return to pre-program levels within 15 years. Attorneys can play a role in avoiding further fractionation by providing clients owning interests in trust or restricted allotments creative estate planning and real estate advice that encourages consolidation rather than fractionation. Author’s Note: The views expressed are those of Mr. Cleary and do not necessarily represent the views of the Department of the Interior or the United States government. ABOUT THE AUTHOR Conor P. Cleary is the Tulsa field solicitor for the U.S. Department of the Interior. He has an LL.M. in American Indian and Indigenous law from the TU College of Law and a J.D. from the OU College of Law. ENDNOTES 1. Land Buy-Back Program for Tribal Nations, Ten Years of Restoring Land and Building Trust: 2012-2022 at 1, available at https://bit.ly/48OTi6i (last accessed Jan. 3, 2024) (hereafter, Final Report). 2. Id. 3. See, e.g., F. Cohen, Handbook of Federal Indian Law §1.01 at 7-8 (Nell Jessup Newton ed. (2012)) (classifying the “eras of Native policy” into “six time frames”[:] “(1) Post-Contact and Pre-Constitutional Development (1492-1789); (2) The Formative Years (1789-1871), (3) Allotment and Assimilation (1871-1928), (4) Indian Reorganization (1928-1942); (5) Termination (1943-1961); and (6) SelfDetermination and Self-Governance (1961-present).” 4. McGirt v. Oklahoma, 140 S. Ct. 2452, 2463 (2020). 5. See H. Craig Miner, The Corporation and the Indian (1989). 6. McGirt, 140 S. Ct. at 2463 (citation omitted). 7. See Judith Royster, “The Legacy of Allotment,” 27 Ariz. St. L. J. 1, 9 (1995). 8. Id. 9. McGirt, 140 S. Ct. at 2463 (citing F. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880-1920, at 14-15 (2001)). 10. Royster, supra note 7, at 13. 11. See id. at 10-12. Removal of restrictions could occur through the expiration of a certain “trust period” (often, 25 years) or through the issuance of a so-called “fee patent” that unilaterally and automatically removed the restrictions. See id. 12. See generally Conor Cleary, “The Stigler Act Amendments of 2018,” 91 OBJ 50 (2020). 13. Royster, supra note 7, at 12 (footnote omitted). 14. Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§5101-5129). 15. Id., §1, 25 U.S.C. §5101. 16. Id., §§2, 3, 25 U.S.C. §§5102, 5103(a). 17. Id., §§16, 17, 25 U.S.C. §§5123(a), 5124. 18. Id., §5, 25 U.S.C. §5108. 19. County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 255 (1992). 20. Jessica Shoemaker, “Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem,” 2003 Wis. L. Rev. 729, 730 (footnote omitted). 21. Id. 22. See Royster, supra note 7. 23. Shoemaker, supra note 20, at 731. 24. See 25 C.F.R. §162.012(a). A highly fractionated tract is one with 20 or more owners. Id. 25. See Hodel v. Irving, 481 U.S. 704, 712-13 (1987). 26. See Shoemaker, supra note 20, at 730 n.7 (quoting Kenneth H. Bobroff, “Retelling Allotment: Indian Property Rights and the Myth of Common Ownership,” 54 Vand. L. Rev. 1559, 1616 (2001) (“As early as 1892, Indian Agents were reporting problems of fractionated heirship.”)). 27. Id. at 744-45 (citing Comm. on Interior and Insular Affairs, 86th Cong., Indian Heirship Land Study 27 (Comm. Print 1960); Indian Fractionated Land Problems: Hearings on H.R. 11113 Before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 89th Cong. 6, 31-32, 35 (1966)). 28. Escheat is “a reversion of property to the state in consequence of a want of any individual competent to inherit.” Escheat definition, Black’s Law Dictionary (2d ed. 1910), available at thelawdictionary.org (last accessed Jan. 6, 2024). 29. See Hodel v. Irving, 481 U.S. 704 (1987). 30. Id. at 716. 31. See Babbitt v. Youpee, 519 U.S. 234 (1997). 32. Id. at 242 (quoting Youpee v. Babbitt, 67 F.3d 194, 200 (9th Cir. 1995)). 33. See Claims Resolution Act of 2010, P.L. 111-291, 124 Stat. 3064, 3066-70 (Dec. 8, 2010). 34. Report at 10. 35. Id. at 24. 36. Id. at 27. 37. Id. at 26. 38. Id. at 44. 39. Id. 40. Id. at 50. 41. See, generally, Conor Cleary, “The Stigler Act Amendments of 2018,” 91 OBJ 50 (January 2020); Casey Ross-Petherick, “Estate Planning for Indian Land in Oklahoma: A Practitioner’s Guide,” 84 OBJ 1027 (May 2013). 42. See Casey Ross, “Probate of American Indian Trust Property: The Lawyer’s Role,” 87 OBJ 287 (February 2016). For example, estates of Five Tribes and Osage members containing interests in restricted allotments are probated in Oklahoma state court while estates containing interests in trust allotments are probated administratively through the Department of the Interior. See id.; see also Act of Aug. 4, 1947, chap. 458, §3(a), 61 Stat. 731 (estates containing Five Tribes restricted allotments); 43 C.F.R. Part 30 (probate of estates containing trust allotments). 43. See Casey Ross-Petherick, supra note 41, at 1027 (“As a result of this individualist approach employed by the federal government in crafting its American Indian policy, practitioners must understand the general rules of federal Indian law, but must also look for deviations that are tribe-specific.”). 44. See, e.g., Act of October 21, 1978, Pub.L. No. 95-496, §6, 92 Stat. 1660 (Osage trusts); Act of Jan. 27, 1933, chap. 23, §2, 47 Stat. 777 (Five Tribes trusts). Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
RkJQdWJsaXNoZXIy OTk3MQ==