Mere mention of the word “probate” sends most people into a tailspin; however, for American Indian descendants of Indian Territory allottees, probate, as well as oil, gas and mineral rights can be particularly problematic.

Marcella Giles, Muscogee/Creek land rights attorney, is devoting her “second career” to helping American Indians iron out over a hundred years of controversy concerning allottee rights. Giles presented “What Every Allottee Should Know” as part of the 35th Annual Symposium of the American Indian at NSU Friday.

Giles is the descendant of original allottees in the Broken Arrow area. Her first career was as a school teacher, but she now practices law in Washington, D.C. She serves as the attorney general for both the Seminole and Creek Nations in Oklahoma, and works diligently protecting American Indian oil and gas leases, and to preserve cemeteries, graves and other sacred sites.

One hundred years after the assault on Tribal Nations by allotment policies of 1887 to 1907, the impact of trust and title instruments represents a collision course of clouded titles; incomplete probates; the end of 100-year mineral leases; lost records; unidentified parcels of restricted land; minerals severed from the surface, but still in restricted status; and myriad trespass or adverse possession issues.

“We all remember the stories,” said Giles. “And we all have them. Stories about land being stolen. My grandmother used to tell us every time we passed a spot of farm land, ‘That’s the land they stole from Uncle Gus.’ Each of her 28 grandchildren knew this story.”

While studying law, Giles chose to track the truth down on her Uncle Gussey Burgess’ land and found her grandmother was right.

“I tracked down records and studied and came to the conclusion that, sure enough, they did steal the land,” said Giles. “Now, it is my encouragement and my passion to make sure there’s not another generation of you sitting out there who will also lose what is yours.”

What began as a $2.4 billion known loss by the U.S. government has become a more than $7 billion case Giles is handling concerning government mismanagement of Individual Indian Money - or IIM - accounts. Special accounts are set up as a trust through the government’s management of Indian allotted lands involving properties with oil and gas production, coal production, grazing leases or timber sales. The suit culminates on behalf of 300,000 IIM account holders dating back at least 80 years.

“Based on the IIM accounts, we have a multi-billion dollar suit for non-payment,” said Giles. “An offer has been made by the administration for a $7 billion settlement extended to tribal and Indian account, but it would extinguish all other claims forever. I can tell you, you will find letters documenting each and every allottee involved in this and what the government is offering is pennies on the dollar, even at $7 billion.”

Giles commented on previous speakers at the symposium, who also are working to bring the injustices of allotment to light.

“I wish I had the witticisms of [Wes] Studi, or the scholarship of [Rennard] Strickland,” said Giles. “They both have set the tone this week to explain to others this was an awful time in our history. It’s 100 years later, but where are we? We know the stories, but in law, I believe, we’ll find the stories to be fact.”

Giles indicated the importance of gathering family documents and tracing lineage in order to be eligible to claim what’s rightfully allowed. She also stressed the truth of Oklahoma historian Angie Debo’s book “And Still The Waters Run,” a recounting of theft of Indian lands during the time of allotment.

“Many people ask me, ‘Do lawyers really use Debo’s book for citation in lawsuits?’” said Giles, producing a worn, dog-eared and tabbed copy of the book. “Well, here’s my copy. What do you think?”

From 1830-1855, all of Oklahoma was Indian Territory. Giles recounted one allots testimony at the time, a man by the last name of Harjo.

“When he testified, he said ‘I hear you’re chopping up our land,’” said Giles. “What a great observation. When Indian Territory was given to us, it was supposed to be ours forever, a nation held in common. Harjo said it best, because when allotment was created, it was as if it were cutting up our wholeness as a people.”

According to Giles, the Five Civilized Tribes were magnificent document keepers, holding copies of leases and permits for almost all transactions. Whites living in the tribes’ jurisdiction were even referred to as immigrants, and tribes required permits for immigrants to lease land, own businesses and even hold jobs.

Which is why research and collating family documents can be so important now, said Giles.

“People need to learn how to match legal descriptions of land with allotment locations, because they’ll find they may not be receiving all they’re entitled to,” said Giles.

After spending years working for the Department of the Interior, Giles wanted to do more for her people.

“I left what I call ‘the Dark Side’, came home and started trying to help people,” said Giles. “Our young Indian graduates are to be so admired. They are very serious about looking at situations to aid in the resolution of many of these problems. If all Indians would participate in gathering their family’s legal documents, we would have a step up in preserving lands for future generations.”

Giles indicated one of the cruelest blows dealt by the government was through oil and gas leases being assigned to other companies.

During a 2000 interview on CBS’ “60 Minutes” Giles and one of her clients, Mary Fish, highlighted the lack of deference to American Indians when it came to such leases.

Fish, a Muscogee Creek, told Mike Wallace she has no control over the leasing of her land, which her grandparents were allotted by the U.S. government back in 1901. She grew up on the allotment, and after her parents died, she and her brothers and sisters inherited their one-eighth royalty from the seven oil wells on their land. Unfortunately, Fish couldn’t even begin to tell Wallace any of the particulars about the well, as the government never gave her the information. At the time, she couldn’t even tell Wallace how much she was paid in royalties from pump production. That’s because when Fish receives her royalty checks from the U.S. Treasury, they come with little or no documentation, making it impossible for her to know if she’s getting her fair share of the oil income.

Giles pointed out that, before an allottee receives any kind of money from oil, gas or mineral rights, the information is parsed by no less than four federal agencies, the State of Oklahoma, and any number of state agencies.

“I call it the royalty payment maze,” said Giles. “Under the threat of litigation, the Bureau of Indian Affairs tries to rectify poor internal bookkeeping procedures, but it’s not enough. The Secretary of the Treasury has destroyed more than 120 boxes of records of inactive IIM accounts, making our task that much more difficult.”

Giles said before talking to anyone interested in reviving old oil and gas leases, allottees should protect themselves by gathering all the documentation they can.

Giles prepared a checklist of documents of interest to allottees, including:

• Ancestor roll numbers and copies of applications for all family members in the Five Civilized Tribes.

• Legal descriptions of allotments.

• Tract record book numbers and page numbers, found in county courthouse records where the allotment is located.

• Cemetery identification.

• Probate number or determination of heirship.

• Leases, grants of rights-of-way and easements, including BIA lease numbers, IIM account numbers and names of lessees (oil company, grazing, etc.).

Problem areas created over time by such leases pointed out by Giles include environmental, unapproved orders, leases and rights-of-way, and drainage of minerals. Illegal sales on which to build a case may include elements such as lack of notice, incomplete probate, oil and gas lease problems, incorrect use of blood quantum and inappropriate tax sales.

Finally, Giles stressed the importance of young people in preserving native lands.

“We need our young people to study, research and become educated,” said Giles. “The elders need them and their gift for technology to help sort this mess out.”

Contact Teddye Snell at tsnell@tahlequahdailypress.com.