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Acts of Congress, Treaties and Other Atrocities

Folks waiting outside the land office 18
Folks Waiting Outside the Perry Oklahoma Land Office for Lottery, 1893 (Okla. Hist. Society)
For Our Own Elucidation
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Forced Migration into what is now Oklahoma. Indian Territory and how we came to this point in history.

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The more fascinating aspect of the map to the left is the areas annotated "Territories"! A sizeable majority of what is now the United States, as late as 1820, still really belonged to somebody else. Our work here is not to find out what clever interweaving, what "Manifest Destiny"packaged excuse, or patented mendacity led us to here. Perhaps we don't want to know?

US Map 1821

1783 - Nonintecourse Act
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...I am not uninformed that the six Nations have been led into some difficulties with respect to the sale of their lands since the peace. But I must inform you that these evils arose before the present government of the United States was established.... The general Government only has the power, to treat with the Indian Nations, and any treaty formed and held without its authority will not be binding. Here then is the security for the remainder of your lands. No State nor person can purchase your lands, unless at some public treaty held under the authority of the United States. The general government will never consent to your being defrauded. But it will protect you in all your just rights. –George Washington2

1783 - Nonintercourse Act

The Nonintercourse Act (also known as the Indian Intercourse Act or the Indian Nonintercourse Act) is the collective name given to six statutes passed by the Congress in 1790, 1793, 1796, 1799, 1802, and 1834 to set Amerindian boundaries of reservations. The various Acts also regulate commerce between Americans and Native Americans. The most notable provisions of the Act regulate the inalienability of aboriginal title in the United States, a continuing source of litigation for almost 200 years. The prohibition on purchases of Indian lands without the approval of the federal government has its origins in the Royal Proclamation of 1763 and the Confederation Congress Proclamation of 1783.
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CLICK on the buttons to read the actual text of each Act.
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Ref: Nonintercourse Acts (1790, 1793, 1796, 1799, 1802, & 1834 ). Library of Congress - A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875. Statutes at Large, 4th Congress, 1st Session, Session 1, Ch.30, pp.137-755. Retrieved from the Library of Congesss at http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=260
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THIS guy...

...is THIS guy...

...is THIS

guy!

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Left - Americans and their Lodge or  "Tepee" c.1850, Library of Congress
1836 ~ The Platte Purchase

1836 - The Platte Purchase

Also Known as the Treaty of 1836, the Platte Purchase was a land acquisition in 1836 by the United States government from American Indian tribes. It comprised lands along the east bank of the Missouri River and added 3,149 square miles (8,156 km2) to the northwest corner of the state of Missouri.
This expansion of the slave state of Missouri was in violation of the Missouri Compromise of 1820, which prohibited the extension of slavery in the former Louisiana Territory north of the parallel 36°30′ north except within the boundaries of the state of Missouri as defined at the time of the adoption of the Missouri Compromise. The area acquired was almost as large as the states of Delaware and Rhode Island combined, and extended Missouri westward along the river. St. Joseph, one of the main ports of departure for the westward migration of American pioneers, was located in the new acquisition.
The region of the Platte Purchase includes the following modern counties within its bounds: Andrew (435 square miles, 1127 km2), Atchison (545 square miles, 1412 km2), Buchanan (410 square miles, 1062 km2), Holt (462 square miles, 1197 km2), Nodaway (877 square miles, 2271 km2), and Platte (420 square miles, 1088 km2). It also includes the northwest suburbs of Kansas City, a small area of Kansas City proper, the cities of St. Joseph and Maryville, Missouri, as well as Kansas City International Airport and almost all of Missouri's portion of Interstate 29, save the small portion which runs concurrently with Interstate 35 in Clay County.
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Sioux Braves, left and below, c.1850, Library of Congress
1851 - Treaty of Ft. Laramie

1851 - Treaty of Fort Laramie

The Fort Laramie Treaty of 1851 was signed on September 17, 1851, between United States treaty commissioners and representatives of the Cheyenne, Sioux, Arapaho, Crow, Assiniboine, Mandan, Hidatsa, and Arikara Nations. The treaty was an agreement between nine more or less independent parties. The treaty set forth traditional territorial claims of the tribes as among themselves.[1] The United States acknowledged that all the land covered by the treaty was Indian territory and did not claim any part of it. The boundaries agreed to in the Fort Laramie treaty of 1851 would be used to settle a number of claims cases in the 20th century.[2] The Native Americans guaranteed safe passage for settlers on the Oregon Trail and allowed roads and forts to be built in their territories in return for promises of an annuity in the amount of fifty thousand dollars for fifty years. The treaty should also "make an effective and lasting peace" among the eight tribes, each of them often at odds with a number of the others.
Ft. Laramie Today...
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Chief Spotted Elk, F.A. Rinehart, 1900 - Omaha - LOC, ibid
1854 - Kansas Nebraska Act
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1854 - The Kansas Nebraska Act

1854 - The Kansas/Nebraska Act

The Kansas–Nebraska Act of 1854 (10 Stat. 277) was an organic act passed by the 33rd U.S. Congress that created the territories of Kansas and Nebraska and was drafted by Democratic Senator Stephen A. Douglas of Illinois and President Franklin Pierce. The initial purpose of the Kansas–Nebraska Act was to open up thousands of new farms and make feasible a Midwestern Transcontinental Railroad. The popular sovereignty clause of the law led pro- and anti-slavery elements to flood into Kansas with the goal of voting slavery up or down, resulting in Bleeding Kansas.
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The availability of tens of millions of acres of fertile farmland in the area made it necessary to create a territorial infrastructure to allow settlement. Railroad interests were especially eager to start operations since they needed farmers as customers. Four previous attempts to pass legislation had failed. The solution was a bill proposed in January 1854 by Douglas — the Democratic Party leader in the US Senate, the chairman of the Committee on Territories, an avid promoter of railroads, an aspirant to the presidency, and a fervent believer in popular sovereignty — the policy of letting the voters, almost exclusively white males, of a territory decide whether or not slavery should exist in it.
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The Kansas-Nebraska Act repealed the Missouri Compromise, allowing slavery in the territory north of the 36° 30´ latitude. Introduced by Senator Stephen Douglas of Illinois, the Kansas-Nebraska Act stipulated that the issue of slavery would be decided by the residents of each territory, a concept known as popular sovereignty. After the bill passed on May 30, 1854, violence erupted in Kansas between pro-slavery and anti-slavery settlers, a prelude to the Civil War.
The Compromise of 1850 and the Kansas Ne
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Left - Little Wound and Chiefs of the Ogalala Sioux
Below - Great Chief Sitting Bull
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1867 - Medicine Lodge Treaty
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Chief Quanah parker, Chief Lone Wolf, Chief Yellow Bear and General among others at the signing of the Medicine Lodge Treaty, Medicine Lodge Kansas, 1867. LOC, ibid
Signing of the Medicine Lodge Treaty, Harpers Weekly, ibid
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1867 - Medicine Lodge Treaty

The Medicine Lodge Treaty is the overall name for three treaties signed between the Federal government of the United States and southern Plains Indian tribes in October 1867, intended to bring peace to the area by relocating the Native Americans to reservations in Indian Territory and away from European-American settlement. The treaty was negotiated after investigation by the Indian Peace Commission, which in its final report in 1868 concluded that the wars had been preventable. They determined that the United States government and its representatives, including the United States Congress, had contributed to the warfare on the Great Plains by failing to fulfill their legal obligations and to treat the Native Americans with honesty.
The U.S. government and tribal chiefs met at a place traditional for Native American ceremonies, at their
request. The first treaty was signed October 21, 1867, with the Kiowa and Comanche tribes.[1] The second, with the Kiowa-Apache,[2] was signed the same day. The third treaty was signed with the Southern Cheyenne and
Arapaho on October 28.[3]
Under the Medicine Lodge Treaty, the tribes were assigned reservations of diminished size compared to territories defined in an 1865 treaty. The treaty tribes never ratified the treaty by vote of adult males, as it required. In addition, by changing allotment policy under the Dawes Act and authorizing sales under the Agreement with the Cheyenne and Arapaho (1890) and the Agreement with the Comanche, Kiowa and Apache (1892) signed with the Cherokee Commission, the Congress effectively further reduced their reservation territory. The Kiowa Chief Lone Wolf filed suit against the government for fraud on behalf of the tribes in Lone Wolf v. Hitchcock. In 1903 the U.S. Supreme Court ruled against the tribes, determining that the Congress had "plenary power" and the political right to make such decisions.[4] In the aftermath of that case, Congress acted unilaterally on land decisions related to other reservations as well.
Because of the outstanding issues with the treaty and subsequent government actions, in the mid-20th century, the Kiowa, Arapaho and Comanche filed several suits for claims against the U.S. government. Over decades, they won substantial settlements of monetary compensation in the amount of tens of millions of dollars, although it took years for the cases to be resolved.
  1. "Treaty of Fort Laramie with Sioux, Etc., 1851." 11 StatsAffairs: Laws and Treaties — Vol. II: Treaties. Washington, D.C.: Government Printing Office, 1904, pp. 594–596. Through Oklahoma State University Library, Electronic Publishing Center.
  2. Map of North America following the 1851 Treaty of Fort Laramie at omniatlas.com
  3. National Park Service, Treaties and Broken Promises, retrieved November 23, 2016

1867 - Medicine Lodge Treaties with the Kiowa, Comanche, and Plains Apache

Under the first of the three Medicine Lodge treaties, the Kiowa and Comanche were compelled to give up more than 60,000 square miles (16,000,000 ha) of traditional tribal territories in exchange for a 3-million-acre (1,200,000 ha) reservation in the southwest corner of Indian Territory (present-day Oklahoma), most of it lying between the North Fork of the Red River and the North Canadian River.[1][7][16] The tribes would also be provided houses, barns, and schools worth $30,000, which the tribes had not requested.[16] By a second treaty, the Plains or Kiowa-Apache were incorporated into the first treaty;[17] this treaty was signed by all the Kiowa and Comanche signatories of the first treaty, along with several Plains Apache chiefs.[2] The treaties with the Kiowa, Comanche, and Plains Apache tribes were concluded on October 21, 1867.[7]
Kiowa chiefs signing...
Comanche chiefs signing...
  • Parry-wah-say-men, or Ten Bears
  • Tep-pe-navon, or Painted Lips
  • To-sa-in (To-she-wi), or Silver Brooch
  • Cear-chi-neka, or Standing Feather
  • Ho-we-ar, or Gap in the Woods
  • Tir-ha-yah-gua-hip, or Horse's Back
  • Es-a-nanaca (Es-a-man-a-ca), or Wolf's Name
  • Ah-te-es-ta, or Little Horn
  • Pooh-yah-to-yeh-be, or Iron Mountain
  • Sad-dy-yo, or Dog Fat
Plains Apache chiefs signing
  • Mah-vip-pah, Wolf's Sleeve
  • Kon-zhon-ta-co, Poor Bear Cho-se-ta, or Bad Back
  • Nah-tan, or Brave Man
  • Ba-zhe-ech, Iron Shirt
  • Til-la-ka, or White Horn
  • At that conference, the Comanche Chief Parry-wah-say-men (Ten Bears) gave an address that foretold the future of his people:
"My heart is filled with joy when I see you here, as the brooks fill with water when the snow melts in the spring; and I feel glad, as the ponies do when the fresh grass starts in the beginning of the year. I heard of your coming when I was many sleeps away, and I made but a few camps when I met you. I know that you had come to do good to me and my people. I looked for benefits which would last forever, and so my face shines with joy as I look upon you. My people have never first drawn a bow or fired a gun against the whites. There has been trouble on the line between us and my young men have danced the war dance. But it was not begun by us. It was you to send the first soldier and we who sent out the second. Two years ago I came upon this road, following the buffalo, that my wives and children might have their cheeks plump and their bodies warm. But the soldiers fired on us, and since that time there has been a noise like that of a thunderstorm and we have not known which way to go. So it was upon the Canadian. Nor have we been made to cry alone. The blue dressed soldiers and the Utes came from out of the night when it was dark and still, and for camp fires they lit our lodges. Instead of hunting game they killed my braves, and the warriors of the tribe cut short their hair for the dead. So it was in Texas. They made sorrow come in our camps, and we went out like the buffalo bulls when the cows are attacked. When we found them, we killed them, and their scalps hang in our lodges. The Comanches are not weak and blind, like the pups of a dog when seven sleeps old. They are strong and farsighted, like grown horses. We took their road and we went on it. The white women cried and our women laughed.
But there are things which you have said which I do not like. They were not sweet like sugar but bitter like gourds. You said that you wanted to put us upon reservation, to build our houses and make us medicine lodges. I do not want them. I was born on the prairie where the wind blew free and there was nothing to break the light of the sun. I was born where there were no inclosures [sic] and where everything drew a free breath. I want to die there and not within walls. I know every stream and every wood between the Rio Grande and the Arkansas. I have hunted and lived over the country. I lived like my fathers before me, and like them, I lived happily.
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When I was at Washington the Great Father told me that all the Comanche land was ours and that no one should hinder us in living upon it. So, why do you ask us to leave the rivers and the sun and the wind and live in houses? Do not ask us to give up the buffalo for the sheep. The young men have heard talk of this, and it has made them sad and angry. Do not speak of it more. I love to carry out the talk I got from the Great Father [president of the US]. When I get goods and presents I and my people feel glad, since it shows that he holds us in his eye.
If the Texans had kept out of my country there might have been peace. But that which you now say we must live on is too small. The Texans have taken away the places where the grass grew the thickest and the timber was the best. Had we kept that we might have done the things you ask. But it is too late. The white man has the country which we loved, and we only wish to wander on the prairie until we die. Any good thing you say to me shall not be forgotten. I shall carry it as near to my heart as my children, and it shall be as often on my tongue as the name of the Great Father. I want no blood upon my land to stain the grass. I want it all clear and pure and I wish it so that all who go through among my people may find peace when they come in and leave it when they go out.
— Ten Bears (Comanche Chief Parry-wah-say-men)
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Southern Arapaho ~
Chief Yellow Bear c.1854, OHS, ibid
"Chief Parry-Wah-Say-Men"
(Ten Bears), OHS, ibid
Chiefs Bosse, Left Hand, White Wolf, Black Kettle, White Antelope, Bull Bear, Arapaho, Sioux, Cheyenne, and Kiowa Tribes, OHS, ibid

Treaty with the Cheyenne and Arapaho

Under the Little Arkansas Treaty of 1865, the Southern Cheyenne and Arapaho tribes had been assigned as a reservation those portions of Kansas and Indian Territory (present-day Oklahoma) between the Arkansas and Cimarron rivers and lying east of an imaginary line running north from Buffalo Creek on the Cimarron up to the Arkansas. Under the Medicine Lodge Treaty, their assigned territory was cut to less than half of the 1865-treaty territory, reduced to that land south of the Kansas state line, for a total of 4,300,000 acres (1,700,000 ha) of land. Additionally, the tribes were to be permitted to continue to hunt north of the Arkansas River for as long as the buffalo remained, as long as they stayed away from white settlements and roads. This concession was made to obtain participation of the Dog Soldiers to the treaty terms. A separate treaty version for the Northern Cheyenne was created, but they did not sign, as they were allied with Red Cloud and the Oglala Lakota in hostilities against the US.
Southern Cheyenne chiefs signing
Arapaho chiefs signing
  • Little Raven
  • Yellow Bear
  • Storm
  • White Rabbit
  • Spotted Wolf
  • Little Big Mouth
  • Young Colt
  • Tall Bear
"REPORT TO THE PRESIDENT BY THE INDIAN PEACE COMMISSION, JANUARY 7, 1868", in Annual Report of the Commissioner of Indian Affairs for the Year 1868, (Washington, D.C.: Government Printing Office, 1868), 26–50.
"Treaty with the Kiowa and Comanche, 1867" (Medicine Lodge Treaty). 15 Stats. 581, October 21, 1867. Ratified July 25, 1868; proclaimed August 25, 1868. In Charles J. Kappler, compiler and editor,Indian Affairs: Laws and Treaties — Vol. II: Treaties, pp. 977–982. Washington, D.C.: Government Printing Office, 1904. Through Oklahoma State University Library, Electronic Publishing Center.
"Treaty with the Kiowa, Comanche, and Apache, 1867" (Medicine Lodge Treaty). 15 Stats. 589, October 21, 1867. Ratified July 25, 1868; proclaimed August 25, 1868. In Charles J. Kappler, compiler and editor, Indian Affairs: Laws and Treaties — Vol. II: Treaties, pp. 982–984. Washington, D.C.: Government Printing Office, 1904. Through Oklahoma State University Library, Electronic Publishing Center.
A.A. Taylor, "MEDICINE LODGE PEACE COUNCIL", Chronicles of Oklahoma, Volume 2, No. 2, June 1924 (first-person account by Alfred A. Taylor, future governor of Tennessee, about events when he accompanied his father Nathaniel Green Taylor of the IPC)
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Chief Powder Face and his Family

1887 - The Dawes Act

The Dawes Act of 1887 (also known as the General Allotment Act or the Dawes Severalty Act of 1887),[1][2] authorized the President of the United States to survey Native American tribal land and divide it into allotments for individual Native Americans. Those who accepted allotments and lived separately from the tribe would be granted United States citizenship. The Dawes Act was amended in 1891, in 1898 by the Curtis Act, and again in 1906 by the Burke Act.
The Act was named for its creator, Senator Henry Laurens Dawes of Massachusetts. The objectives of the Dawes Act were to abolish tribal and communal land ownership of the tribes into individual land ownership rights in order to transfer lands under Native American control to white settlers and stimulate assimilation of them into mainstream American society, and thereby lift individual Native Americans out of poverty. Individual household ownership of land and subsistence farming on the European-American model was seen as an essential step. The act provided that the government would classify as "excess" those Indian reservation lands remaining after allotments, and sell those lands on the open market, allowing purchase and settlement by non-Native Americans.
The Dawes Commission, set up under an Indian Office appropriation bill in 1893, was created to try to persuade the Five Civilized Tribes to agree to allotment plans. (They had been excluded from the Dawes Act by their treaties.) This commission registered the members of the Five Civilized Tribes on what became known as the Dawes Rolls.
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The Curtis Act of 1898 amended the Dawes Act to extend its provisions to the Five Civilized Tribes; it required abolition of their governments, allotment of communal lands to people registered as tribal members, and sale of lands declared surplus, as well as dissolving tribal courts. This completed the extinguishment of tribal land titles in Indian Territory, preparing it to be admitted to the Union as the state of Oklahoma.
During the ensuing decades, the Five Civilized Tribes sold off 90 million acres of former communal lands to non-Natives. In addition, many individuals, unfamiliar with land ownership, became the target of speculators and criminals, were stuck with allotments that were too small for profitable farming, and lost their household lands. Tribe members also suffered from the breakdown of the social structure of the tribes.
During the Great Depression, the Franklin D. Roosevelt administration supported passage on June 18, 1934 of the US Indian Reorganization Act (also known as the Wheeler-Howard Law). It ended land allotment and created a "New Deal" for Native Americans, renewing their rights to reorganize and form their self-governments.

Provisions of the Dawes Act

The Dawes Act of 1887 (also known as the General Allotment Act or the Dawes Severalty Act of 1887),
 
The important provisions of the Dawes Act were:
  1. A head of family would receive a grant of 160 acres (65 ha), a single person or orphan over 18 years of age would receive a grant of 80 acres (32 ha), and persons under the age of 18 would receive 40 acres (16 ha) each;
  2. the allotments would be held in trust by the U.S. Government for 25 years;
  3. Eligible Native Americans had four years to select their land; afterward the selection would be made for them by the Secretary of the Interior.
Every member of the bands or tribes receiving a land allotment is subject to laws of the state or territory in which they reside. Every Native American who receives a land allotment "and has adopted the habits of civilized life" (lived separate and apart from the tribe) is bestowed with United States citizenship "without in any manner impairing or otherwise affecting the right of any such Native American to tribal or other property".
The Secretary of Interior could issue rules to assure equal distribution of water for irrigation among the tribes, and provided that "no other appropriation or grant of water by any riparian proprietor shall be authorized or permitted to the damage of any other riparian proprietor."
The Dawes Act did not apply to the territory of the:
Provisions were later extended to the Wea, Peoria, Kaskaskia, Piankeshaw, and Western Miami tribes by act of 1889. Allotment of the lands of these tribes was mandated by the Act of 1891, which amplified the provisions of the Dawes Act.
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Dawes Act 1891 Amendments

In 1891 the Dawes Act was amended:
  • Allowed for pro-rata distribution when the reservation did not have enough land for each individual to receive allotments in original quantities, and provided that when land is only suitable for grazing purposes, such land be allotted in double quantities
  • Established criteria for inheritance
  • Does not apply to Cherokee Outlet

Provisions of the Curtis Act

The Curtis Act of 1898 extended the provisions of the Dawes Act to the Five Civilized Tribes in Indian Territory. It did away with their self-government, including tribal courts. In addition to providing for allotment of lands to tribal members, it authorized the Dawes Commission to make determination of members when registering tribal members.
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Provisions of the Burke Act

The Burke Act of 1906 amended the sections of the Dawes Act dealing with US Citizenship (Section 6) and the mechanism for issuing allotments. The Secretary of Interior could force the Native American Allottee to accept title for land. US Citizenship was granted unconditionally upon receipt of land allotment (the individual did not need to move off the reservation to receive citizenship). Land allotted to Native Americans was taken out of Trust and subject to taxation. The Burke Act did not apply to any Native Americans in Indian Territory.
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Read the Entire Burke Act, 25 U.S.C. Ch.s 1,2,2a &3
by clicking the buttons below
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1887 - The Dawes Act
Provisions of the Dawes Act
The Dawes Act Amendments
Provisions of the Curtis Act
Prvisioins of the Burke Act
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The Dawes Act (Full Text)

1887 - General Allotment Act or Dawes Act

 (Below is the full text of the Dawes Act from the NADP Homepage, approved February 6, 1887)
 
An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations (General Allotment Act or Dawes Act), Statutes at Large 24, 388-91, NADP Document A1887. [Page 388]
      Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows:
      To each head of a family, one-quarter of a section;
      To each single person over eighteen years of age, one-eighth of a section;
      To each orphan child under eighteen years of age, one-eighth of a section; and
      To each other single person under eighteen years now living, or who may be born prior to the date of the order of the President directing an allotment of the lands embraced in any reservation, one-sixteenth of a section: Provided, That in case there is not sufficient land in any of said reservations to allot lands to each individual of the classes above named in quantities as above provided, the lands embraced in such reservation or reservations shall be allotted to each individual of each of said classes pro rata in accordance with the provisions of this act: And provided further, That where the treaty or act of Congress setting apart such reservation provides the allotment of lands in severalty in quantities in excess of those herein provided, the President, in making allotments upon such reservation, shall allot the lands to each individual Indian belonging thereon in quantity as specified in such treaty or act: And provided further, That when the lands allotted are only valuable for grazing purposes, an additional allotment of such grazng lands, in quantities as above provided, shall be made to each individual.
      SEC. 2. That all allotments set apart under the provisions of this act shall be selected by the Indians, heads of families selecting for their minor children, and the agents shall select for each orphan child, and in such manner as to embrace the improvements of the Indians making the selection. where the improvements of two or more Indians have been made on the same legal subdivision of land, unless they shall otherwise agree, a provisional line may be run dividing said lands between them, and the amount to which each is entitled shall be equalized in the assignment of the remainder of the land to which they are entitled under his act: Provided, That if any one entitled to an allotment shall fail to make a selection vithin four years after the President shall lirect that allotments may be made on a particular reservation, the Secretary of the Interior may direct the agent of such tribe or band, if such there be, and if there be no agent, then a special agent appointed for that purpose, to make a selection for such Indian, which selection shall be allotted as in cases where selections are made by the Indians, and patents shall issue in like manner.
[Page 389]
       SEC. 3. That the allotments provided for in this act shall be made by special agents appointed by the President for such purpose, and the agents in charge of the respective reservations on which the allotments are directed to be made, under such rules and regulations as the Secretary of the Interior may from time to time prescribe, and shall be certified by such agents to the Commissioner of Indian Affairs, in duplicate, one copy to be retained in the Indian Office and the other to be transmitted to the Secretary of the Interior for his action, and to be deposited in the General Land Office.
      SEC. 4. That where any Indian not residing upon a reservation, or for whose tribe no reservation has been provided by treaty, act of Congress, or executive order, shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land-office for the district in which the lands arc located, to have the same allotted to him or her, and to his or her children, in quantities and manner as provided in this act for Indians residing upon reservations; and when such settlement is made upon unsurveyed lands, the grant to such Indians shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions as herein provided. And the fees to which the officers of such local land-office would have been entitled had such lands been entered under the general laws for the disposition of the public lands shall be paid to them, from any moneys in the Treasury of the United States not otherwise appropriated, upon a statement of an account in their behalf for such fees by the Commissioner of the General Land Office, and a certification of such account to the Secretary of the Treasury by the Secretary of the Interior.
      SEC. 5. That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: Provided, That the law of descent and partition in force in the State or Territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered, except as herein otherwise provided; and the laws of the State of Kansas regulating the descent and partition of real estate shall, so far as practicable, apply to all lands in the Indian Territory which may be allotted in severalty under the provisions of this act: And provided further, That at any time after lands have been allotted to all the Indians of any tribe as herein provided, or sooner if in the opinion of the President it shall be for the best interests of said tribe, it shall be lawful for the Secretary of the Interior to negotiate with such Indian tribe for the purchase and release by said tribe, in conformity with the treaty or statute under which such reservation is held, of such portions of its reservation not allotted as such tribe shall, from time to time, consent to sell, on such terms and conditions as shall be considered just and equitable between the United States and said tribe of Indians, which purchase shall not be complete until ratified by Congress, and the form and manner of executing such release shall also be
[Page 390]
prescribed by Congress: Provided however, That all lands adapted to agriculture, with or without irrigation so sold or released to the United States by any Indian tribe shall be held by the United States for the sale purpose of securing homes to actual settlers and shall be disposed of by the United States to actual and bona fide settlers only tracts not exceding one hundred and sixty acres to any one person, on such terms as Congress shall prescribe, subject to grants which Congress may make in aid of education: And provided further, That no patents shall issue therefor except to the person so taking the same as and homestead, or his heirs, and after the expiration of five years occupancy therof as such homestead; and any conveyance of said lands taken as a homestead, or any contract touching the same, or lieu thereon, created prior to the date of such patent, shall be null and void. And the sums agreed to be paid by the United States as purchase money for any portion of any such reservation shall be held in the Treasury of the United States for the sole use of the tribe or tribes Indians; to whom such reservations belonged; and the same, with interest thereon at three per cent per annum, shall be at all times subject to appropriation by Congress for the education and civilization of such tribe or tribes of Indians or the members thereof. The patents aforesaid shall be recorded in the General Land Office, and afterward delivered, free of charge, to the allottee entitled thereto. And if any religious society or other organization is now occupying any of the public lands to which this act is applicable, for religious or educationl work among the Indians, the Secretary of the Interior is hereby authorized to confirm such occupation to such society or organization, in quantity not exceeding one hundred and sixty acres in any one tract, so long as the same shall be so occupied, on such terms as he shall deem just; but nothing herein contained shall change or alter any claim of such society for religious or educational purposes heretofore granted by law. And hereafter in the employment of Indian police, or any other employes in the public service among any of the Indian tribes or bands affected by this act, and where Indians can perform the duties required, those Indians who have availed themselves of the provisions of this act and become citizens of the United States shall be preferred.
      SEC. 6. That upon the completion ef said allotments and the patenting of the lands to said allottees, each and every nmmber of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner affecting the right of any such Indian to tribal or other property.
      SEC. 7. That in cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior be, and he is hereby, authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservation; and no oother appropriation or grant of water by any riparian proprietor shall permitted to the damage of any other riparian proprietor.
[Page 391]
      SEC. 8. That the provisions of this act shall not extend to the territory occupied by the Cherokees, Creeks, Choctaws, Chickasaws, Seminoles, and Osage, Miamies and Peorias, and Sacs and Foxes, in the Indian Territory, nor to any of the reservations of the Seneca Nation of New York Indians in the State of New York, nor to that strip of territory in the State of Nebraska adjoining the Sioux Nation on the south added by executive order.
      SEC. 9. That for the purpose of making the surveys and resurveys mentioned in section two of this act, there be, and hereby is, appropriated, out of any moneys in the Treasury not otherwise appropriated, the sum of one hundred thousand dollars, to be repaid proportionately out of the proceeds of the sales of such land as may be acquired from the Indians under the provisions of this act.
      SEC. 10. That nothing in this act contained shall be so canstrued to affect the right and power of Congress to grant the right of way through any lands granted to an Indian, or a tribe of Indians, for railroads or other highways, or telegraph lines, for the public use, or condemn such lands to public uses, upon making just compensation.
      SEC. 11. That nothing in this act shall be so construed as to prevent the removal of the Southern Ute Indians from their present reservation in Southwestern Colorado to a new reservation by and with consent of a majority of the adult male members of said tribe.
      Approved, February, 8, 1887.
 

1890 - The Organic Act (Oklahoma Territory)

The Territory of Oklahoma was an organized incorporated territory of the United States that existed from May 2, 1890, until November 16, 1907, when it was joined with the Indian Territory under a new constitution and admitted to the Union as the State of Oklahoma.
The 1890 Oklahoma Organic Act organized the western half of Indian Territory and a strip of country known as No Man's Land into Oklahoma Territory. Reservations in the new territory were then opened to settlement in land runs later that year and in 1891 and 1893. Included lands that came to make up the territory were Big Pasture – December 1906 – sealed bid, and Comanche, Kiowa, and Apache reserve – July 10 through August 6, 1901 – lottery.

 
Everett, Dianna. (2009). 1890 Organic Act. Encyclopedia of Oklahoma History and Culture/ Accessed January 12, 2019
1898 - The Curtis Act

1898 - The Curtis Act

Enacted by the 55th United States Congress, June 28, 1898, referring to Public Law 55-517, Statutes at Large, 30 Stat. 495
The Curtis Act of 1898 was an amendment to the United States Dawes Act that brought about the allotment process of lands of the Five Civilized Tribes of Indian Territory: the Choctaw, Chickasaw, Muscogee, Cherokee, and Seminole. These tribes had been previously exempt from the 1887 General Allotment Act, also known as the Dawes Act (also known as the Dawes Severalty Act, named for its sponsor and author Senator Henry Laurens Dawes), because of the terms of their treaties. Prior to the Curtis Act, each of these tribes had sole authority to determine the requirements for tribal membership. The act transferred this authority to the Dawes Commission. Thus, members could be enrolled without tribal consent. By effectively abolishing tribal courts and tribal governments in the Indian Territory of Oklahoma, the act enabled Oklahoma to attain statehood, which followed in 1907.
Officially titled the “Act for the Protection of the People of Indian Territory”, the Act is named for Charles Curtis, its original author. He was of Kansa, Osage, Potawatomi, and French descent, was raised on the Kansas Reservation, and was a member of the United States House of Representatives. Although Charles Curtis was the author of the original draft of the Act, by the time the bill HR 8581 had gone through five revisions in committees in both the House of Representatives and the Senate, there was little of Curtis’ original draft left to become law. In his own hand-written autobiography, Curtis noted that he was unhappy with the final version of the Curtis Act. He believed that the Five Civilized Tribes needed to make changes. He thought that the way ahead for Native Americans was through education and use of both their and the majority cultures, but he also had hoped to give more support to Native American transitions.
Provisions of the Curtis Act
The Curtis Act called for the abolition of tribal governments on March 6, 1906. It was intended to establish the concept of individual land holdings. The act also provided for the establishment of public schools.
The Act incorporated the basic points regarding land allotments and termination of tribal governments that had earlier appeared in the Atoka Agreement between the Choctaw and Chickasaw Nations. The Atoka Agreement had been rejected by a popular vote of the Chickasaws, but accepted by the Choctaws. The Curtis Act required that the Atoka Agreement be resubmitted to a vote of both nations. The agreement was approved in a joint election on August 24, 1898.
The Curtis Act also scrapped the enrollments performed under the Dawes Act and ordered that new enrollments be performed.
This Act extended all provisions of the Dawes Act to the lands of the Five Civilized Tribes, making large parts of these lands open to settlement by whites. It resulted in removing an estimated 90 million acres of land formerly reserved for Native Americans.
The Curtis Act also provided for the incorporation of towns in Indian Territory. This meant that towns had a legal basis to be laid out, surveyed and platted. Any individual could obtain title to the lot in fee simple . The title owner of a lot had the legal right to sell or mortgage the property. An incorporated town or city had the right to self regulation and levy taxes, allowing them to establish public services. By 1900, the largest towns in Indian Territory had incorporated. These included: Ardmore. with 1,500 residents; Muskogee 4,200; McAlester 3,500; Wagoner 2,300; Tulsa 1,300 and Eufaula 800.
The Act also provided that residents could vote for city officials, even though it did not allow territorial residents to vote for national office.
"During the 1890s, as white settlers flooded into Oklahoma Territory, demands increased to join the lands of the Five Tribes (Indian Territory) with Oklahoma Territory and thus form a new state. In 1887 the Dawes Severalty Act (General Allotment Act) legislated the allotment of communal tribal lands into individually owned plots, indicating a major shift in federal government policy. To aid the drive toward Oklahoma statehood and the full assimilation of its Indian population, the U.S. Congress created the Dawes Commission in 1893. Another congressional law, enacted June 28, 1898, was sponsored by Charles Curtis, a mixed-blood Kansa Indian and senator from Kansas. With the passage of the Curtis Act, Congress took final control over affairs in Indian Territory.
The Curtis Act helped weaken and dissolve Indian Territory tribal governments by abolishing tribal courts and subjecting all persons in the territory to federal law. This meant that there could be no enforcement of tribal laws and that any tribal legislation passed after 1898 had to be approved by the president of the United States. Towns could be surveyed and incorporated under the act, and residents were permitted to vote. The establishment of public schools was also sanctioned.
Before 1896 each of the Five Tribes had exercised sole jurisdiction over its citizenship requirements, determining who was a tribe member and who was not. With the passage of the Curtis Act Congress authorized the Dawes Commission to prepare new citizenship rolls for each tribe. Sen. Henry L. Dawes of Massachusetts undertook the compilation of a census to be used as the basis for allotment of tribal lands to individual Indians. Enrollment of tribe members and the ensuing allotment was performed without tribal consent.
The Curtis Act dealt a blow to the governmental autonomy of the Five Tribes, but the act was merely the culmination of legislation designed to strip tribal governments of their authority and give it to Congress and/or the federal government. Ironically, Charles Curtis, himself of Indian blood, was responsible for the act that helped pave the way for the demise of the Indian nations and for the statehood of Oklahoma" (Tatro, Kaye (Curtis Act, 1898) Oklahoma Historical Society).
  • Carter, Kent (1999). The Dawes Commission and the Allotment of the Five Civilized Tribes, 1893–1914. Orem, Utah: Ancestry.com
  • Troy R. Johnson,Troy R. ed. (1999). Contemporary Native American Political Issues. New York: AltaMira Press.
  • Wilkins, David E. (2002). American Indian Politics. New York: Rowman and Littlefield Publishers.
Indian and Oklahoma Territories Map 1884
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1906 - The Burke Act

59th United States Congress, 1906, May 8. Public Law 59-149, Statuates at Large 34 Stat. 182, Titles amended 25 U.S.C.: Indians, U.S.C. Sections amended 25 U.S.C. ch.9 Section 349
 
Specifically:
25 U.S.C. ch. 1 – Bureau of Indian Affairs
Cornell Law – Legal Information Institute
(https://www.law.cornell.edu/uscode/text/25/chapter-1)
25 U.S.C. ch. 2 – Officers of Indian Affairs
Cornell Law – Legal Information Institute
(https://www.law.cornell.edu/uscode/text/25/chapter-2)
25 U.S.C. ch. 2a – Indian Claims Commission
Cornell Law – Legal Information Institute
(https://www.law.cornell.edu/uscode/text/25/chapter-2a)
25 U.S.C. ch. 3 – Agreements With Indians
Cornell Law – Legal Information Institute
(https://www.law.cornell.edu/uscode/text/25/chapter-3)
25 U.S.C. ch. 9 – Allotment of Indian Lands
Cornell Law – Legal Information Institute
(https://www.law.cornell.edu/uscode/text/25/chapter-9)
​
​
Burke Act (1906), also known as the Forced Fee Patenting Act, amended the Dawes Act of 1887 (formally known as the General Allotment Act ("GAA"), under which the communal land held by tribes on the Indian reservations was broken up and distributed in severalty to individual households of tribal members. It required the government to assess whether individuals were "competent and capable" before giving them fee simple patents to their allotted land.
Because the federal government believed that most Indians were not prepared for United States citizenship, the act further provided that citizenship not be granted to Native American individuals until at the time of the final validation of their trust patents, at the end of the probationary period of 25 years, instead of upon the receipt of the trust patents, as stated in the Dawes Act. It was named for U. S. Congressman Charles H. Burke.
The Burke Act of 1906, passed by Congress as an amendment to the Dawes Severalty Act of 1887, continued the federal policy of assimilation of Native Americans into white society. The policy of forced assimilation, which began with the Dawes Act, was a reversal of almost 50 years of policies regarding Native Americans. Previously, the federal government had forced indigenous peoples to relocate onto reservations in the United States.
Attempting to assimilate Native Americans, the Bureau of Indian Affairs tried to eliminate the tribal ownership of land and allot plots of land to individual owners. The Dawes Act allotted 160 acres to heads of families and 80 acres to single adults. Congress passed the Burke Act to hasten the transition to individual ownership by eliminating the 25-year trust period required under the Dawes Act. Under the trust system, individuals who were allotted land could not acquire full title to the property for 25 years. The Burke Act amended the allotment law to give the secretary of the interior the power to issue fee-simple titles, which were fees without restrictions on the transfer of ownership. The amendment removed all restrictions on the sale, taxation, and claims on property. (Bessemer, Glen. (2015, September 27) World History)
​​Provisions of the Burke Act
The Burke Act of 1906 amended the sections of the Dawes Act dealing with US Citizenship (Section 6) and the mechanism for issuing allotments. The Secretary of Interior could force the Native American Allottee to accept title for land. US Citizenship was granted unconditionally upon receipt of land allotment (the individual did not need to move off the reservation to receive citizenship). Land allotted to Native Americans was taken out of Trust and subject to taxation. The Burke Act did not apply to any Native Americans in Indian Territory.

​

  • Frederick E. Hoxie, Frederick E. (1984). A Final Promise: The Campaign to Assi-milate the Indians, 1880-1920. Lincoln. University of Nebraska Press.

​

  • Prucha, Francis Paul, ed. (1981). Indian Policy in the United States: Historical Essays. Lincoln. University of Nebraska Press.
Horrific Consequences

the Horrific Consequences

The Dawes Act had a negative effect on Native Americans, as it ended their communal holding of property (with crop land often being privately owned by families or clans), by which they had ensured that everyone had a home and a place in the tribe. The act "was the culmination of American attempts to destroy tribes and their governments and to open Indian lands to settlement by non-Native Americans and to development by railroads". Land owned by Native Americans decreased from 138 million acres (560,000 km2) in 1887 to 48 million acres (190,000 km2) in 1934.
Senator Henry M. Teller of Colorado was one of the most outspoken opponents of allotment. In 1881, he said that allotment was a policy "to despoil the Native Americans of their lands and to make them vagabonds on the face of the earth". Teller also said,
"...the real aim [of allotment] was "to get at the Indian lands and open them up to settlement. The provisions for the apparent benefit of the Native Americans are but the pretext to get at his lands and occupy them. ... If this were done in the name of Greed, it would be bad enough; but to do it in the name of Humanity ... is infinitely worse." (Otis, 1934, Allotment of Indian Lands. pp. 116-119)
The amount of land in native hands rapidly depleted from some 150 million acres (610,000 km2) to a small 78 million acres (320,000 km2) by 1900. The remainder of the land once allotted to appointed natives was declared surplus and sold to non-native settlers as well as railroad and other large corporations; other sections were converted into federal parks and military compounds. The concern shifted from encouraging private native landownership to satisfying the white settlers' demand for larger portions of land.
By dividing reservation lands into privately owned parcels, legislators hoped to complete the assimilation process by forcing Native Americans to adopt individual households, and strengthen the nuclear family and values of economic dependency strictly within this small household unit.[31]
Given the conditions on the Great Plains, the land granted to most allottees was not sufficient for economic viability of farming. Division of land among heirs upon the allottees' deaths quickly led to land fractionalization. Most allotment land, which could be sold after a statutory period of 25 years, was eventually sold to non-Native buyers at bargain prices. Additionally, land deemed to be "surplus" beyond what was needed for allotment was opened to white settlers, though the profits from the sales of these lands were often invested in programs meant to aid the Native Americans. Over the 47 years of the Act's life, Native Americans lost about 90 million acres (360,000 km2) of treaty land, or about two-thirds of the 1887 land base. About 90,000 Native Americans were made landless.
In 1906 the Burke Act (also known as the forced patenting act) amended the GAA to give the Secretary of the Interior the power to issue allottees a patent in fee simple to people classified "competent and capable". The criteria for this determination is unclear but meant that allottees deemed "competent" by the Secretary of the Interior would have their land taken out of trust status, subject to taxation, and could be sold by the allottee. The allotted lands of Native Americans determined to be incompetent by the Secretary of the Interior were automatically leased out by the federal government. The act reads:
... the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Native American allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, encumbrance, or taxation of said land shall be removed. (Bartecchi. 2007-02-19. "The History of "Competency)

​

The use of competence opens up the categorization, making it much more subjective and thus increasing the exclusionary power of the Secretary of Interior. Although this act gives power to the allottee to decide whether to keep or sell the land, given the harsh economic reality of the time, and lack of access to credit and markets, liquidation of Indian lands was almost inevitable. It was known by the Department of Interior that virtually 95% of fee patented land would eventually be sold to whites.
The allotment policy depleted the land base, ending hunting as a means of subsistence. According to Victorian ideals, the men were forced into the fields (but the Native Americans thought this made them take on what in their society had traditionally been the woman's role, and the women were relegated to the domestic sphere).[citation needed] This Act imposed a patriarchal nuclear household onto many matrilineal Native societies, in which women had controlled property and descent.
Native gender roles and relations quickly changed with this policy, since communal living had shaped the social order of Native communities. Women were no longer the caretakers of the land and they were no longer valued in the public political sphere. Even in the home, the Native woman was dependent on her husband. Before allotment, women divorced easily and had important political and social status, as they were usually the center of their kin network. Under the Dawes Act, to receive the full 160 acres (0.65 km2), women had to be officially married.
In 1926, Secretary of the Interior Hubert Work commissioned a study of federal administration of Indian policy and the condition of Native American people. Completed in 1928, The Problem of Indian Administration – commonly known as the Meriam Report after the study's director, Lewis Meriam – documented fraud and misappropriation by government agents. In particular, the Meriam Report found that the General Allotment Act had been used to illegally deprive Native Americans of their land rights.
After considerable debate, Congress terminated the allotment process under the Dawes Act by enacting the Indian Reorganization Act of 1934 ("Wheeler-Howard Act"). However, the allotment process in Alaska, under the separate Alaska Native Allotment Act, continued until its revocation in 1971 by the Alaska Native Claims Settlement Act.
Despite termination of the allotment process in 1934, effects of the General Allotment Act continue into the present. For example, one provision of the Act was the establishment of a trust fund, administered by the Bureau of Indian Affairs, to collect and distribute revenues from oil, mineral, timber, and grazing leases on Native American lands. The BIA's alleged improper management of the trust fund resulted in litigation, in particular the case Cobell v. Kempthorne (settled in 2009 for $3.4 billion), to force a proper accounting of revenues.
  • Churchill, Ward. Struggle for Land: Native North American Resistance to Genocide, Ecocide and Colonization. San Francisco: City Lights Books, 2002. p. 48. Print.

​

  • Gibson, Arrell M. Gibson. "Indian Land Transfers." Handbook of North American Indians: History of Indian–White Relations, Volume 4. Wilcomb E. Washburn and William C. Sturtevant, eds. Washington DC: Smithsonian Institution, 1988. Pages 226–29
​
  • Case DS, Voluck DA (2002). Alaska Natives and American Laws (2nd ed.). Fairbanks, AK: University of Alaska Press. pp. 104–5. ISBN 978-1-889963-08-2
.
Fractionation

Fractionation

For nearly one hundred years, the consequences of federal Indian allotments have developed into the problem of fractionation. As original allottees die, their heirs receive equal, undivided interests in the allottees' lands. In successive generations, smaller undivided interests descend to the next generation. Fractionated interests in individual Native American allotted land continue to expand exponentially with each new generation.
Today,[specify] there are approximately four million owner interests in the 10,000,000 acres (40,000 km2) of individually owned trust lands,[citation needed] a situation the magnitude of which makes management of trust assets extremely difficult and costly. These four million interests could expand to 11 million interests by the year 2030 unless an aggressive approach to fractionation is taken.[citation needed] There are now single pieces of property with ownership interests that are less than 0.0000001% or 1/9 millionth of the whole interest, which has an estimated value of .004 cent.
The economic consequences of fractionation are severe. Some recent appraisal studies[specify] suggest that when the number of owners of a tract of land reaches between ten and twenty, the value of that tract drops to zero. Highly fractionated land is for all practical purposes worthless.
In addition, the fractionation of land and the resultant ballooning number of trust accounts quickly produced an administrative nightmare. Over the past 40 years, the area of trust land has grown by approximately 80,000 acres (320 km2) per year. Approximately 357 million dollars[citation needed] is collected annually from all sources of trust asset management, including coal sales, timber harvesting, oil and gas leases and other rights-of-way and lease activity. No single fiduciary institution has ever managed as many trust accounts as the Department of the Interior has managed over the last century.[citation needed]
Interior is involved in the management of 100,000 leases for individual Native Americans and tribes on trust land that encompasses approximately 56,000,000 acres (230,000 km2). Leasing, use permits, sale revenues, and interest of approximately $226 million per year are collected for approximately 230,000 individual Indian money (IIM) accounts, and about $530 million per year are collected for approximately 1,400 tribal accounts. In addition, the trust currently manages approximately $2.8 billion in tribal funds and $400 million in individual Native American funds.[citation needed]
Under current regulations, probates need to be conducted for every account with trust assets, even those with balances between one cent and one dollar. While the average cost for a probate process exceeds $3,000, even a streamlined, expedited process costing as little as $500 would require almost $10,000,000 to probate the $5,700 in these accounts.
Unlike most private trusts, the federal government bears the entire cost of administering the Indian trust. As a result, the usual incentives found in the commercial sector for reducing the number of small or inactive accounts do not apply to the Indian trust. Similarly, the United States has not adopted many of the tools that states and local government entities have for ensuring that unclaimed or abandoned property is returned to productive use within the local community.[citation needed]
Fractionation is not a new issue. In the 1920s, the Brookings Institution conducted a major study of conditions of the Native American and included data on the impacts of fractionation. This report, which became known as the Meriam Report, was issued in 1928. Its conclusions and recommendations formed the basis for land reform provisions that were included in what would become the IRA. The original versions of the IRA included two key titles, one dealing with probate and the other with land consolidation. Because of opposition to many of these provisions in Indian Country, often by the major European-American ranchers and industry who leased land and other private interests, most were removed while Congress was considering the bill. The final version of the IRA included only a few basic land reform and probate measures. Although Congress enabled major reforms in the structure of tribes through the IRA and stopped the allotment process, it did not meaningfully address fractionation as had been envisioned by John Collier, then Commissioner of Indian Affairs, or the Brookings Institution.
In 1922, the General Accounting Office (GAO) conducted an audit of 12 reservations to determine the severity of fractionation on those reservations. The GAO found that on the 12 reservations for which it compiled data, there were approximately 80,000 discrete owners but, because of fractionation, there were over a million ownership records associated with those owners. The GAO also found that if the land were physically divided by the fractional interests, many of these interests would represent less than one square foot of ground. In early 2002, the Department of the Interior attempted to replicate the audit methodology used by the GAO and to update the GAO report data to assess the continued growth of fractionation; it found that it increased by more than 40% between 1992 and 2002.
As an example of continuing fractionation, consider a real tract identified in 1987 in Hodel v. Irving, 481 U.S. 704 (1987):
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​
"Tract 1305 is 40 acres (160,000 m2) and produces $1,080 in income annually. It is valued at $8,000. 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 largest interest holder receives $82.85 annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated $8,000 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.
Today, this tract produces $2,000 in income annually and is valued at $22,000. It now has 505 owners but the common denominator used to compute fractional interests has grown to 220,670,049,600,000. If the tract were sold (assuming the 505 owners could agree) for its estimated $22,000 value, the smallest heir would now be entitled to $.00001824. The administrative costs of handling this tract in 2003 are estimated by the BIA at $42,800." (Hodel v. Irving, 481 U.S. 704 (1987))
Fractionation has become significantly worse. As noted above, in some cases the land is so highly fractionated that it can never be made productive. With such small ownership interests, it is nearly impossible to obtain the level of consent necessary to lease the land. In addition, to manage highly fractionated parcels of land, the government spends more money probating estates, maintaining title records, leasing the land, and attempting to manage and distribute tiny amounts of income to individual owners than is received in income from the land. In many cases, the costs associated with managing these lands can be significantly more than the value of the underlying asset.
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