- You hear a lot about land fractionation at AA&AT meetings, and if you’re like many you don’t quite understand what it means. It took me about six months of meetings and a couple hours on the web to finally figure it out… and this is what I learned.
Fractionated is what we call an Allotment (your Indian Trust Land) that is owned by more than one person. An allotment becomes fractionated very easily. When an original Allottee (someone who received a land allotment) dies and leaves his allotment to his children (heirs) to share, the allotment becomes fractionated. Each child owns a fraction of the land.

For example Joe was an original allottee. He was given 80 acres. Joe had three children, Joey, Sam and Emma. When Joe died, since he didn’t leave specific instructions his land was passed to his heirs. As Joe’s heirs Joey, Sam and Emma each own 1/3 of Joe’s allotment.

Now, Joey has three children, Sam has five children and Emma has one child. After Joey, Sam and Emma pass and leave their shares of the land to their children there are nine land owners. Joey’s three kids each own 1/9 of the allotment. Sam’s five kids each own 1/15 of the allotment and Emma’s heir owns 1/3 of the allotment.

So why is Fraction so bad? First imagine that each of the nine land owners have three children each, that makes twenty-seven owners in the next generation. And this keeps happening from generation to generation. You can imagine how difficult it becomes to manage the land. Try getting just three people to agree on something; don’t even bother trying with twenty-seven!

Fractionated land is expensive for the U.S. Government and Department of the Interior to manage, and they want to deal with it. In the early ‘80s the Indian Land Consolidation Act proposed the “2% Rule”, that is to say if no one owned more than 2% on any given allotment, that allotment was transferred to the tribe. Fortunately the 2% Rule was struck down by the Supreme Court. This rule would have not only resulted in the loss of allotments for people but their land would have been given, by default, to the Quinault Tribe, not necessarily the Tribe of the Allottee’s family. (Read Who ownes the Quinault Reservation.)

But the fact remains that fractionation in and of itself is not good. Sally Willett, a renowned lawyer for American Indian rights and first enrolled Indian woman to become an administrative law judge, says that “fractionation is the practical death of (Indian)land”. We, the landowners and potential heirs must do something about it before someone else does it for us. The easiest way to prevent further fractionation is to leave your allotment to just one child, or grandchild, etc. “But that just wouldn’t be fair”you’re thinking… but it can be.

One option is that you can leave the land to one heir and give your other heirs a Life Estate. A Life Estate will give your heirs - the one’s you don’t leave the land to - the use of the land and income from the land during his (their) lifetimes. My Mother is an allottee. She has three children. She wants us all to benefit from her allotment, but she does not want to see the land fractionated. She will leave her allotment to my sister and give my brother and I each Life Estates. My sister will someday leave the land to one of her three sons, and Life Estates to the two others. In doing this, Mom’s allotment will always be owned by one person, but will benefit others in the family.

Another option is leaving your land to all of your heirs as Joint Tenants. Joint tenancy is a way of holding title where the people holding title share an item, like your land, but when one of the people dies, the deceased person’s share automatically transfers to the other living people. For example, if Indian children inherit a parcel from their Indian parent, the children will inherit the land as joint tenants with right of survivorship. This means that when the first child dies, his or her share will not pass to the grandchildren. Instead, the interest passes to the other surviving children. The rule with joint tenants is that the last one surviving inherits everything, and those who pass away before have no interest to leave to their own families.

It is important to think about passing your land to the next generation. Some of the decisions you have to make will be difficult, but they need to be made. Remember that “fractionation is the practical death of land”. None of us want to see that.

 

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