The latest craze to sweep federal surveyors offices is the program called CFEDs. It's a training program for certifying surveyors to perform federal surveys, cadastral services, BLM surveys, surveys for Tribes.
The requirements for becoming a CFEDs surveyor are really loose. REALLY really loose. REALLY REALLY REALLY LOOSE!
Why is this so important? Well if your tribe needs a survey performed that is of a Federal survey type, or a cadastral survey for oh, lets say a border dispute between the Tribe (reservation) and a state or a county, BLM usually is the one to do that. BLM has always done tribal cadastral surveys I am told. This CFEDs program replaces BLM surveyors with CFEDs surveyors because BLM cannot keep up with the demand for surveys from tribes. Basically, they are contracting out their services, their role in the fiduciary responsibility of the federal government, their oversight of an ethical survey. (remember the ethics part, I'll address this later in this entry)
So how loose are the requirements for becoming a CFEDs surveyor? Well if you look at the CFEDs Site you'll find that you have to meet two requirements:
1. be a licensed surveyor in any state
2. have no (negative) disciplinary actions in any state regulatory board or court in the last five years.
That is all that is required. For anything else, the sky's the limit. hmmmmmmm.
"Anything else" covers a lot of ground doesn't it? It does indeed!
What is meant when I said "anything else?" Let's say you're a CFEDs surveyor working at your normal job, and you get a call from Bureau of Land Management, or a tribe to go to a reservation to settle a border dispute between the Tribe and the State. You go in you do your thing, you check titles, you check monuments, you recheck titles, you do everything to uphold the integrity of your profession and decide that the land in dispute goes to the State. Easy right? Too easy!
How can you uphold the integrity of your profession...recommend a boundary dispute resolution in favor of a state, between a tribe and the state, as a CFEDs surveyor...when you are a state or county elected-surveyor? Remember the only requirements are listed above. There are no restrictions on anything else! So, elected surveyors, and state and city employee-surveyors, can (AND ARE) participating in the CFEDs process!
Which God will this surveyor serve? Will he serve the state, county or city he is an employee at, or an elected official of, or will he serve the Tribe for whom he is under contract through the BLM?
I brought this up quite a long time ago (2 years ago at a BIA realty conference in Lincoln City Oregon) and there was no answer. Now the first class has graduated from the CFEDs course and within the first four pages of my print out from the list I have found three CFEDs surveyors who meet the ethical dilema I have described here. I have also found several who have written questionable material as it relates to Tribal cultures.
So, what about that crazy word "ethics?" Let's see what one of the coordinators of the CFEDs program has to say about ethics. Dennis Mouland, one of the training coordinators has a venerated book called Ethics for the Professional Surveyor. He also has a fan, William Schmidt, who wrote a glowing review of the book, for Professional Surveyor Magazine.
He describes Dennis Moulan's "thoughts" on the subject of ethics as a word that '...originally meant habit, or the way someone is disposed to act.' He also says the word means the "right way," or "the approved or a proven way."
Well I have news for Dennis Mouland. I do not approve of the way that they are randomly creating a plethora of ethical dilemas for a bunch of surveyors whose real jobs may depend on how they are "disposed to act," during a border dispute between the Tribe and their real employers.
And really now, how can anybody who works for any state (say California) understand the real complexities of a border dispute between a tribe and another state (say Idaho) when they are working for another state?
I don't know, what do you think? What is your stand on this?
What about background checks? How many people serve on organizations that purport to deny tribal jurisdiction exists and are on the list of CFEDs surveyors? (I'm looking at you--you know who you are, and it's only a matter of time before this becomes painfully evident to the world)
Talk to your tribal councils, talk to your chairmen, your presidents, your program directors, ask them if they understand how screwed up this program is in its implementation from the ground up.
A friend of mine from Haskell Indian Nations University who shall remain nameless to protect Cricket's identiy, (Hi Cricket!) has this on her page and I think it's only too appropriate:
He who serves two masters has to lie to one.
Friday, November 30, 2007
Thursday, November 15, 2007
Gross Revenue Crop Share Vs. Cash Rent Leases
A Little Bit of Knowledge Can Hurt You
A lot of knowledge can help you. It’s when you don’t know the whole story that you can get shorted by someone, something, or a policy. The same goes for the land leases on the Nez Perce Indian Reservation. There are a lot of things that you need to consider before signing on the dotted line.
Gross Revenue Crop Share Leases:
In a typical Gross Revenue Crop Share Lease, you take a cut of the profits, and because it’s a Gross revenue crop Share; the total cost of farming expenses is covered by the operator-farmer. The original way this lease was set up back in the 30s-1950s was for 1/3 to go the Tribal land owner, 1/3 to go to the farmer-operator, and 1/3 to the maintenance and upkeep involved with farming; basically the expenses related to farming such as fuel, chemicals (fertilizer, pesticide), seeds and maintenance of farming equipment. The fight for 1/3-2/3 Crop Share Leases has been an issue since the 1950s when advocates argued that it was a fair deal for everyone involved in reservation farming.
So in a gross revenue crop share lease, your farmer should justify if they need more money for drainage or other requirements. If you don’t agree with your farmer but you want to be fair, you might ask for the farmer to open his books to you; you may ask him to show you his farm’s accounting books and show you where his expenses have gone before you sign any lease papers. A Gross Revenue Crop Share Lease is reflective of the profit available in that year’s market. Whatever the farmer can potentially make off his 1/3 crop share is exactly what the tribal landowner can make off his 1/3 crop share. For a Gross Revenue Crop Share Lease, in a bad year, we all suffer diminished returns on our crops. In a good year, for a Gross Revenue Crop Share Lease, we all share in the increased profit returns on our crops.
Cash Rent Leases:
If you make a Cash-Rent Lease you agree to a certain amount of money each year. That’s it. You simply make a minor profit. It is not based on any market. It does not fluctuate.
In a bad crop year, the farmer’s returns are not drastically affected by our cash rent. In a good crop price year, however, the large returns are not shared by everyone. In a really good year, if you have a Cash Rent Lease, you get your cash rent. That’s it. The profits are not shared equally when you have a simple cash rent lease.
You do not get to share in the amazing market prices. So if the price of wheat goes above $10 dollars a bushel like it did this year, if you have a Cash Rent lease, all you get is your cash rent. On the other end of your crops, however, your farmer can get a huge return because he paid you your cash rent, and now he can potentially go and market your crops at the $10 dollar per bushel rate. And if he had to pay on loans as we’ll see later, then the bank is making money off the crop by holding shares of wheat until the market is beneficial to them. In that case the crop just left the reservation along with all the profits.
Feeling like you missed out? Well, if you had a cash rent crop in effect this year, you did miss out on a potential gain. This year the price of wheat went over $10 dollars per bushel. What does this all mean?
A lot of knowledge can help you. It’s when you don’t know the whole story that you can get shorted by someone, something, or a policy. The same goes for the land leases on the Nez Perce Indian Reservation. There are a lot of things that you need to consider before signing on the dotted line.
Gross Revenue Crop Share Leases:
In a typical Gross Revenue Crop Share Lease, you take a cut of the profits, and because it’s a Gross revenue crop Share; the total cost of farming expenses is covered by the operator-farmer. The original way this lease was set up back in the 30s-1950s was for 1/3 to go the Tribal land owner, 1/3 to go to the farmer-operator, and 1/3 to the maintenance and upkeep involved with farming; basically the expenses related to farming such as fuel, chemicals (fertilizer, pesticide), seeds and maintenance of farming equipment. The fight for 1/3-2/3 Crop Share Leases has been an issue since the 1950s when advocates argued that it was a fair deal for everyone involved in reservation farming.
So in a gross revenue crop share lease, your farmer should justify if they need more money for drainage or other requirements. If you don’t agree with your farmer but you want to be fair, you might ask for the farmer to open his books to you; you may ask him to show you his farm’s accounting books and show you where his expenses have gone before you sign any lease papers. A Gross Revenue Crop Share Lease is reflective of the profit available in that year’s market. Whatever the farmer can potentially make off his 1/3 crop share is exactly what the tribal landowner can make off his 1/3 crop share. For a Gross Revenue Crop Share Lease, in a bad year, we all suffer diminished returns on our crops. In a good year, for a Gross Revenue Crop Share Lease, we all share in the increased profit returns on our crops.
Cash Rent Leases:
If you make a Cash-Rent Lease you agree to a certain amount of money each year. That’s it. You simply make a minor profit. It is not based on any market. It does not fluctuate.
In a bad crop year, the farmer’s returns are not drastically affected by our cash rent. In a good crop price year, however, the large returns are not shared by everyone. In a really good year, if you have a Cash Rent Lease, you get your cash rent. That’s it. The profits are not shared equally when you have a simple cash rent lease.
You do not get to share in the amazing market prices. So if the price of wheat goes above $10 dollars a bushel like it did this year, if you have a Cash Rent lease, all you get is your cash rent. On the other end of your crops, however, your farmer can get a huge return because he paid you your cash rent, and now he can potentially go and market your crops at the $10 dollar per bushel rate. And if he had to pay on loans as we’ll see later, then the bank is making money off the crop by holding shares of wheat until the market is beneficial to them. In that case the crop just left the reservation along with all the profits.
Feeling like you missed out? Well, if you had a cash rent crop in effect this year, you did miss out on a potential gain. This year the price of wheat went over $10 dollars per bushel. What does this all mean?
It means that just this year alone you lost money in the above scenario on the table. Even if you got an up front cash signing bonus, is that just for this year? If it is then you lose money on every succeeding year. If your signing bonus is for every year, it better be for more than what you would make off a 1/3-2/3 crop revenue share lease. In the scenario in this table that means that your signing bonus on a Cash Rent Lease for everyone on the lease better make up $15, 166.67 dollars every year (or the amount you would receive at 1/3 of the total crop value).
The numbers are random in this table, but the formula is correct, and reflects a true return for 50 bushels per acre harvest on 100 acres when wheat was 10 dollars per bushel in 2007. The numbers are also only for a single tribal land owner. To be fair if you had five tribal owners then you would divide the “OWNER” amounts by five, or the total number of land owners. It is just meant in this form to magnify the division of profit going to the farmer-operator.
According to a United States Department of Agriculture publication released July 12, 2007 at http://www.nass.usda.gov/Statistics_by_State/Idaho/Publications/Producers_News/pdf/Crop%20Prod%200707.pdf Idaho’s expected winter wheat production for this year was up 59.9 million bushels, up 10 percent from last year. Harvested acreage of winter wheat yields, as of July 1, is expected to be 81.0 bushels per acre, up from last year's 77.0 bushels per acre. Producers with spring wheat are expected to yield an estimated at 68.0 bushels per acre, 5.0 bushels less than 2006.
So the estimation in the above table (at 50 bushels per acre) was obviously a conservative one. If you had a Cash Rent Lease, it should have considered the higher yields per acre that you would lose according to these more accurate statistics.
Summary
The main difference between Gross Revenue Crop Share and Cash Rent Leases:
Gross Revenue Crop Share Leases
· Full crop sales prices in good years are shared by everyone. (Good for Farmer and Owner)
· Bad years are shared by everyone, but impact of Tribal members is only 1/3 of the
total payout. (Good for farmer, and also guarantees tribal member 1/3 of any small profit made.)
Cash Rent Leases
· Full crop sales prices in good years are NOT shared by everyone. (Extremely good for farmer, bad for owner)
· Bad years are not shared by everyone, but impact of Tribal members’ cash rent is minimal (Fairly Good for farmer, and the Owner still ONLY gets their tiny cash rent payment)
So if you think about it, what’s the point of having a Cash Rent Lease when the good years’ profits are not shared by the Tribal Members?
In any year, farmers, without knowledge of the tribal member owners, may apply for Environmental Quality Incentives Program funding or technical assistance. This information can be found at http://www.id.nrcs.usda.gov/programs/eqip/eqip_how_08.html. Farmers make efforts at meeting the requirements for this program and they could get money for it. The checks from the Natural Resources Conservation Service under the United States Department of Agriculture go directly to the farmer. Now his costs of farming have been offset and you didn’t even know about it. His 1/3 for the costs of farming has just been partially funded by the Federal government. Does your lease stipulate that any and all federal program offsets be reported to all the land owners and divided up at 1/3-2/3 share?
When fields are burned, you save the farmer up to three passes over a field depending on the situation. So, now the farmer is saving gas he would have spent tilling and preparing fields. His cost has just gone down again. This is even more reason to pass on the savings under other programs, and another reason to stick to a 1/3-2/3 Gross Revenue Crop Share Lease.
Did all the crop get sent to the nearest licensed elevator? If it says so in your lease, the entire crop should be sent to the nearest elevator. That ensures accountability. How? Well, then no “estimates of total yield” are used to figure out what your 1/3 share is. If it all gets sent to the nearest licensed elevator, then the total yield is there to divide up.
If farmers “estimate” how much your 1/3 of the crop in the field should be and then send the rest (an "estimated" 2/3) to their own personal storage bins, true accountability cannot be attained. In other words, we’ll never really know if the tribal owners got an actual 1/3 of the total crop. This merely keeps honest farmers honest, and identifies questionable procedures on the part of others, like “accidentally” sending a truck from one “lot” (field) to the elevator and accounting for it under the wrong “lot,” which is how elevators account for crops since they don’t physically see the fields and the crops cut on different fields. Even if the farmer is farming honestly, if the lease says the entire crop goes to the nearest licensed elevator, then, in all honesty, that’s what should happen. Any land owner can call the elevators and ask for the total amount of the crop sent to the elevator labeled under their lot. That will tell you if the entire crop was sent there.
Don’t feel like you’re the only one who missed out though. If a farmer requested a loan from the bank last year and did not allow time for the crop to be marketed, then as soon as the grain was cut, the banks were right there demanding money. As a result some farmers were forced to sell their grain at $6.00 per bushel before the full market potential was realized.
Agriculture is an extremely volatile market with a lot of pitfalls. Everyone needs to be market savvy and stay on top of the prices, leasing and loan provisions, and your rights as a land owner.
Another very important thing to remember when signing your lease is to either check yes or no to the question on the lease of whether the farmer can market your crop for you, if it’s on your lease. If you check yes, your farmer could sell your grain as soon as he cuts it (when prices are low because supply is high).
If you check no, then you could get a receipt for your crop at the elevator, watch the market for better prices, and sell your crops when you think the prices are better (when prices are higher because the supply is lower). Other countries’ crops are under drought conditions, so orders from overseas have had positive effects on the prices of grains for land owners this year. But if your farmer sold the crop for you the day after it went to the elevator, you lost your ability to market your crop. So read your lease carefully.
Remember through all of this, farming on the reservation is a privilege for non tribal members, not a right.
There is nothing written into the Code of Federal Regulations which gives farmers a right to farm Indian land.
The fact that they are farming here is a privilege, granted by the owners, and when we all profit equally, we all make best use of the land.
Don't let this kind of article fool you or your farmer at: http://ohioline.osu.edu/fr-fact/0002.html It has no basis for being used in Tribal land issues. And they seem to advocate for farmers, which isn't bad. But if you're a land owner or co-land owner, you need to advocate for yourself. I could elaborate on this article from Ohio State, but I'll leave it alone for now. Just know that there are a multitude of issues in this Ohio State article which do not apply to Indian Land, and they only seem to give one side of the story. There are other articles just like this one so be aware of them. They're out there, and some people would like to use articles like it to justify cash rent leases on Indian land.
Know the facts, know the history, fulfill the prayers of our ancestors who prayed for us to use wisdom to take care of the land.
Ground work
Before we get started, lets get one thing clear from the outset. This identification of "issues" is not personal. There is practically nobody in the Bureau of Indian Affairs Offices whom I do not have good feelings for, on a personal level. There is at least one person in the Office of Special Trustee Office with whom I feel I will never have good feelings for, but he's not Tribal so I think the problem is that the whole Native protection concept goes right over his head.
When I identify "issues" (some of you call them problems, screw ups, fluster clucks, etc), it is just that. I am identifying some thing, some action, lack of action, mistake, that could be done differently, better, quicker, or slower. I identify the issue and I will try not to blame anybody for the issue. I will clarify that by saying if it was my best friend doing the same thing in that position, it is the issue I am identifying. So don't think if your'e a BIA employee in any of these positions that I am slamming you. If you got replaced next week, and the FNG did the same thing you did, I would still be identifying the issue that is happening. It's not because of you, it's because the issue will affect us that I will identify issues.
There is no danger in trying to do something better. There is no shame in mistakes. There may be guilt, or responsibility assessed. Because like I've said before, guilt is feeling badly for having done something wrong. SHAME is feeling bad about who you are.
No shame, no foul, and hopefully no harm comes from looking at land "issues" objectively and asking all of ourselves,
"How can we do it better?"
When I identify "issues" (some of you call them problems, screw ups, fluster clucks, etc), it is just that. I am identifying some thing, some action, lack of action, mistake, that could be done differently, better, quicker, or slower. I identify the issue and I will try not to blame anybody for the issue. I will clarify that by saying if it was my best friend doing the same thing in that position, it is the issue I am identifying. So don't think if your'e a BIA employee in any of these positions that I am slamming you. If you got replaced next week, and the FNG did the same thing you did, I would still be identifying the issue that is happening. It's not because of you, it's because the issue will affect us that I will identify issues.
There is no danger in trying to do something better. There is no shame in mistakes. There may be guilt, or responsibility assessed. Because like I've said before, guilt is feeling badly for having done something wrong. SHAME is feeling bad about who you are.
No shame, no foul, and hopefully no harm comes from looking at land "issues" objectively and asking all of ourselves,
"How can we do it better?"
Friday, November 9, 2007
What is a Native Land Issue?
It is a well-known fact that if you are not Native, you will not understand what a Native Land Issue is. So, what is a Native Land Issue?
It is any action, any failure to act, or any proposed action that has any positive or negative effect on land formerly under the control of Native Americans, currently under Native control whether in Trust or Fee, or any land that will be under Native American control in the future.
If you are a land-owner, this will be a place to learn about what issues are affecting you, will affect you and how to identify what issues already have affected you if you didn't already know it.
It is understandable to think that if you are not Native, you won't understand our issues with our lands; however, it is reprehensible to think that you are not Native and you don't understand our issues with land IF you are an employee in the Bureau of Indian Affairs, Office of Special Trustee, Bureau of Land Management, United States Forest Service, United States Department of Agriculture, Farm Service Agency, Natural Resouces Conservation Service, or if you are a member of the Supreme Court, United States House of Representatives, United States Senate, or the White House Staff including the President.
People in those positions in government affect policy that creates Native Land issues. So like we always say in the Army, "Shooters, watch your lanes!" Watch out for these guys! Like the sitting Vice President, they may shoot where they don't think anyone is occupying space.
We're in the lane (my Native relatives). It's our job to make that known in as many ways possible to affect a positive outcome on Native Land issues.
I'm downrange right alonside you so the more we all move at once, the easier it will be for us to be seen.
You did bring your bullet proof vest didn'cha?
It is any action, any failure to act, or any proposed action that has any positive or negative effect on land formerly under the control of Native Americans, currently under Native control whether in Trust or Fee, or any land that will be under Native American control in the future.
If you are a land-owner, this will be a place to learn about what issues are affecting you, will affect you and how to identify what issues already have affected you if you didn't already know it.
It is understandable to think that if you are not Native, you won't understand our issues with our lands; however, it is reprehensible to think that you are not Native and you don't understand our issues with land IF you are an employee in the Bureau of Indian Affairs, Office of Special Trustee, Bureau of Land Management, United States Forest Service, United States Department of Agriculture, Farm Service Agency, Natural Resouces Conservation Service, or if you are a member of the Supreme Court, United States House of Representatives, United States Senate, or the White House Staff including the President.
People in those positions in government affect policy that creates Native Land issues. So like we always say in the Army, "Shooters, watch your lanes!" Watch out for these guys! Like the sitting Vice President, they may shoot where they don't think anyone is occupying space.
We're in the lane (my Native relatives). It's our job to make that known in as many ways possible to affect a positive outcome on Native Land issues.
I'm downrange right alonside you so the more we all move at once, the easier it will be for us to be seen.
You did bring your bullet proof vest didn'cha?
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