Owning Indian Country
Dividing trust land among heirs
can be like trying to split a hair

Story by Lisa A. Kerscher
Photos by Melissa Hart

Gladys Jefferson and her family spent more than $1,500 fencing 120 acres that were not even hers.

The land had been in her family since the turn of the century when the federal government allotted Crow Reservation lands to individual tribal members. The plan was to turn the Indians into farmers and assimilate them into white society. Many Crows, like Gladys Jefferson's parents, were given few clues and little incentive to find their land on the 2.3 million-acre reservation.

Twenty years ago, Jefferson decided to find the family's holdings and put the land to use.

"My folks had never known where their lands were," Jefferson says. "We figured we'd go find it so we could fence it off and take cattle there to graze during the summer if we couldn't get a better lease on it."

Fortified with a township and range location from her land title, Jefferson headed to the reservation's Bureau of Indian Affairs land office. Referring to a map, the BIA agent showed Jefferson about where the land was located up a gravel road near old Highway 87.

"He told us to go on the road so far, and what landmarks to look for, and that's where it would be," she recalls. Kneeling on her wood floor at her home in Crow Agency, Jefferson pores over an unfurled map that plots land ownership on the Crow. Her finger retraces her quest along the reservation's myriad property lines, past the jumbled hues that signify ownership.

The family drove west from Crow Agency for awhile. Turned up the gravel road. Passed a distinct group of trees. Found the spot and began to build the fence. "Whenever someone had some money, we'd buy more supplies and work on it," Jefferson says.

But when a BIA land appraiser finally went out to assess her investment, he found out her land was farther north, outside the fence.

"It was clear on the other side of what he first told us," she says. "The kids kinda got disappointed. Three months of work and we ended up taking down the fence."

That mistake - and a host of other problems - results from the modern mess of land ownership on the Crow Reservation.
Darryl LaCounte, land titles and records manager for the Bureau of Indian Affairs in Billings, says such problems are the result of "a lot of laws that were passed to protect Indians that are now really binding."

Facing a wall of maps in his corner office, LaCounte refers to a land title that shows some of the complications those laws cause. When a landowner dies without a will - a common occurrence on the reservation - the law splits the property evenly among any children, if no spouse survives.

But inheriting land on the reservation isn't merely a matter of splitting up the acreage into smaller pieces. If an owner holds one-seventh of an interest, for example, he owns one-seventh of every square inch of the parcel. That means owners ultimately end up with scattered fragments, making them difficult to put into productive use.

"A lot of times you feel so bad for these people - they think they own so much, but they own only this," LaCounte says, indicating just a fraction.

Some of the original allotments to Crow tribal members were spread out across the reservation. That means land split into fragments by the federal trust inheritance laws is further fragmented by the nature of the original land grants.

To make matters worse, sometimes land falls out of trust status - and becomes fee land - and the BIA no longer has jurisdiction over it. This can happen when land is sold to non-Indians or because a non-Indian spouse inherited a fractional share. If an owner of trust land dies without a spouse, children or a will, then the share returns to the tribe.

"It's a difficult thing to manage, because most people are not aware of what happens to their land when they die," LaCounte says.
These conditions make using the land a battle against red tape and hard feelings.

LaCounte says co-owners have the responsibility to either assert their property rights or be compensated for someone else using the land. But the land fractionation is so bad that "many, many people make less than $1 per year," he says. "There are people who own so little that their interest never generates a penny. Never."

On one 160-acre tract, for example, several people own 1/332,640 undivided interest. If consolidated, each of those owners would be sitting on a piece of land the size of a couch. Only after several thousand years would a penny be tallied from it, assuming the fractionation stopped there because they had no heirs.

In the early 1980s, Congress passed laws that allowed tribes to take land from individual owners whose share was less than 2 percent if the income from the land didn't total $100 during one of the five years before the owner's death. William Youpee had a will and his heirs, not the tribes, should have acquired his small holdings in Montana and the Dakotas. But Youpee had never been notified that those shares might be taken when he died, so his heirs challenged the law. About a year ago, the Supreme Court ruled it unconstitutional, because the owners were not compensated.

Compensation can be very costly, though. Youpee, for example, owned undivided interests in several tracts of land across three reservations. Their value totaled $1,239. The appraisal work done to compensate the heirs cost more than the land was worth. "We're just in this fix," LaCounte concludes, "and everything you do probably costs more than your interest in it."

A dozen years ago, Charles Yarlott had land that was not in fractions and he wanted to put a house on it. However, his 460 acres were mostly inaccessible by roads, so he proposed trading it to the tribe for 400 acres up Reno Creek, close to Crow Agency. The trade took three years, but his sole ownership is secure.

Yarlott got a brand new modular home, complete with furniture, through Housing and Urban Development a couple years ago. He planted it just off the gravel county road, realizing that he needed to get electric lines strung out to his place. Yet three years later, the power lines still end two miles short of his lifeless house. Meanwhile, he's powering up for court.

The Rural Electrification Administration estimated the total cost to extend the lines at nearly $15,000. Earlier this year, the tribe agreed to cover 75 percent of it, and REA trimmed the cost some. But Yarlott is still left with a $3,200 bill. "They need the whole sum up front," Yarlott says, "but I'm not Howard Hughes. I'm just trying to make a living. I offered to pay $50 a month with the regular bill, but they wouldn't budge whatsoever."

Ironically, REA still owes Yarlott for building lines across his father's allotment - the 460 acres he traded - in the early 1950s. Yarlott's offer to simply swap tabs was refused. When he recently got $3,000 from the federal housing department to help cover the new wiring job, he thought he was in the clear. But REA "didn't want it," he says. "They told me to send the check back." Yarlott says the power co-op insists on resolving the old easement dispute, before moving ahead with the new lines. It's still in dispute.

So for now, instead of living 10 miles closer to his job at Crow Agency, Yarlott still lives in St. Xavier, one of the five towns in which most Indian families live on the reservation. His century-old home, on a dirt road just off the highway, used to belong to his in-laws. The Yarlotts pay taxes on it, because the town owns the land. Yarlott's place is one of several homes lined up opposite a rusting rural fire truck and an empty foundation left from a burned-down house. A silent schoolyard is a stone's throw away.

At the highway's edge, the abandoned grade school's warm brick face and broken windows are engulfed in horseflies buzzing louder than the passing traffic. A green chalkboard inside announces a meeting scheduled for Oct. 18, 1983.
Yarlott's decade-old dream of tranquil security has disintegrated. After he tows REA into court, Yarlott says, the BIA is next.

"For faulting on their trust responsibility," he says. The BIA and the tribe's superintendent, Yarlott contends, are supposed "to see that Indians get a better deal. But the BIA said they blamed it on us for letting it happen."

Yarlott is determined to get justice on the reservation, but an attorney will cost money, which is hard to come by because apparently banks rarely loan to Indians.

In a recent report from the General Accounting Office, the investigatory arm of Congress, out of the 1.2 million Indians living on trust lands nationwide, only 91 got conventional mortgage loans for homes between 1992 and 1996 and 128 got federally guaranteed private loans between 1983 and 1997.

Gerald Sherman, an Oglala Indian, has worked as a banker for 10 years. "In banking, I can't say racism doesn't exist," he says, but he believes many people's sense of discrimination is rooted in misunderstanding and the absence of business standards.

Most Indians are unfamiliar with how banks work, because few exist on reservations. Sherman works at Hardin's First Interstate Bank, just outside the Crow Reservation. He says lenders often won't risk doing business there, because reservations lack Uniform Commercial Codes, which "spell out all the rules for doing commerce." On the reservation there are no codes dealing with foreclosure and repossession issues, for example.

Sherman says most banks near reservations are lending anyway, and updated federal regulations makes sure banks serve local low-income residents without bias.

More often, discrimination may be a matter of perception. "If a white person gets treated badly by a bank, he sees it as bad customer service," Sherman says. A person with color may see it as racism. The bottom line is that "people are more comfortable dealing with people like themselves."

Unlike Yarlott, most landowners have given up any dreams of living on their land. Ninety-nine percent of trust land on the Crow is leased, most often to non-Indians.

Lynda Whiteman owns 1/35th of 480 acres - about 14 acres if it could be consolidated. She used to get about $90 a year by leasing it with the other owners to a non-Indian farmer, Marvin R. Knutson, who has lived and farmed near Reno Creek for 27 years. Thanks to her husband's severance pay and his understanding of the leasing game, her annual profit has been $1,500 to $3,000 over the last three years.

"The bottom line is money," her husband,

Everett Whiteman, says. You need money to make money." When he left the BIA leasing department after 29 years of service, Whiteman used his severance pay to help his wife outbid Knutson's lease. The Whitemans pay the annual leasing fee of $5,600 and hire Knudson to farm it, but they and the other owners still make more from it than before.

Even if an Indian wanted to farm the land himself, a used Ford tractor might cost $2,000. Owners wanting to invest in their land face other obstacles as well. The Whitemans, for example, had 3,000 bushels of wheat in storage they wanted to use as collateral for a loan until they sold it at higher market prices. Knutson co-signed for them a year ago at the First Interstate Bank in Hardin to confirm their wheat stock.

"I don't have a problem with helping these people," Knutson says. "If I know you, and I know your word is good, then to hell with the bank."

Knutson tends about 3,000 acres - farming wheat and hay and running cattle. Some of it he purchased as fee land, but he estimates that he leases a lot of it from about 250 owners. "I'm one of the few dinosaurs left that do my own leasing work," he notes. Unlike most people who go through leasing companies, "if you're going to lease somebody's land, I've always felt it's common courtesy to meet one-on-one" with the landowners, he says.

Sometimes, though, many people don't know they own land and many others have such a small interest, they don't care what happens to it.

"Most people won't put $10 in their gas tank to decide on something they'll lose money on," Everett Whiteman says. Thus, a lease can be signed with only 51 percent of the owners agreeing to the contract. The superintendent can sign for the minority, whether they want it or not. To allow one owner to live on part of the land or to mortgage it, all of the owners have to approve.

Conflicts between owners often cause emotional tension, as well. Whiteman says some of the strongest resentment comes "when someone owns a share through a second marriage, and nobody knows it until the lease comes up."

A second spouse will get one-third share and children from the first marriage will split two-thirds of it. "That's there on just about every tract," he says.

Even Lynda Whiteman has been fielding uncomfortable calls from co-owners recently. Although she pays the annual leasing fee on time and everyone's making more money than with the old contract, some still aren't satisfied. Some of these owners prefer to go through a leasing company. By doing it the old way, they could get money from the leasing company before the yearly lease payment's due, but they usually have to pay 15 percent interest for the advance.

Many of these land-use challenges arise because the owners don't understand the complex laws. Over the last several decades, Everett Whiteman, now a clerk for the tribe's Crow Land Resource Committee, has had people come into his office saying, "Tell me where my one-hundredth of an interest on that tract is."

Gladys Jefferson believes the Crow's tradition of trust has reinforced an outdated way of doing things.

"We never questioned our elders," she says "so we figured our parents knew what they were doing" in signing the leasing contracts the white people encouraged. "Even $100 was a lot to them. In the long run we found out we were cheated."

But younger land owners, such as Jefferson's eldest daughter, Jannell Jefferson, have begun questioning the customary compliance. While growing up here, Jefferson, 24, watched a non-Indian farmer go from driving a beat-up truck and living in a run-down house to owning a new Ford, six other trucks, a car phone and a nicer house. Her family got a yearly $25 check from leasing the land to him.

What she saw as a blatant inequity fueled her defiance of the old procedures, questioning everything out loud in a way uncommon among Indians. The new attitude upset her mother, though, especially on lease renewal days. "I would tell her, 'Don't be so mean. They're good to us,'" Gladys Jefferson recalls. "I was always worried about ruining those relationships." Her daughter argued that the leasing people acted nice because they wanted the cheap contracts signed quickly.

Gladys Jefferson understands her daughter's frustration, though it does make her uncomfortable.

After signing the lease, "once you walk out that door, you're an Indian," Gladys Jefferson says. "We don't know if they've screwed us or not, but they're trying to make money off us."

Today Jefferson and her family know where their lands are, and she hopes her children become more educated about the issues.

"Now it's tradition," Jefferson says. "Every Mother's Day, we go way out in the boonies and check out our land." They also take pains to "show our grandkids how to read the (property) book."

Some people, like Darryl LaCounte and Everett Whiteman, try to encourage owners to think ahead and write a will outlining where the land should go.

"But many of these people are superstitious," Whiteman says, "and they see it as writing their death sentence."

Some Indians think most of the conflicts over land would disappear if all the individual holdings reverted to tribal ownership.

Then "we wouldn't have all these jurisdictional problems," Everett Whiteman says.

The appraisal process to compensate everyone would be long and costly, but the government would only have to do it once.

Some lawyers suggest several other solutions: promoting voluntary consolidation; designating a single beneficiary; swapping interests; and, most important, educating owners so they can assume a more active role in what happens to their land.

All agree these deep-rooted problems need to be resolved. But most familiar with the land ownership situation acknowledge that the problems are so complex that creating legislation to remedy them is difficult. Yet with the birth of every new heir, delaying a search for a resolution will only continue to divide the land and its people.

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The Crow joined Gen. George Custer in the battle of the Little Bighorn. The tribe was known for cooperating with the government and that may be the reason its members received the largest land allotments in Montana, says BIA land titles manager Darryl LaCounte.

Charles Yarlott and his family live in a century-old deteriorating home while he tries to find a way to get power lines to his new home up Reno Creek.

Gladys Jefferson says her generation never questioned what was happening to their land because they trusted the white man and were taught it was disrespectful to question elders.

Marvin Knutson farms fee land and trust land he leases from Crow Indians. "I've never had any problems with the BIA, but it's somewhat different and sometimes more difficult. It's easier to deal with the people than with the bureaucracy," he says.

A broken-down wall gives way to a mural in the St. Xavier School.