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Indian Probate

In December of 2005, President Bush signed the Indian Land Probate Reform Technical Corrections Act of 2005  Adobe Acrobat Reader is Required to View this File. (Public Law 109-157) which amends the Indian Land Consolidation Act to make technical amendments with regard to: (1) partition of highly fractionated Indian land; (2) tribal probate codes; (3) descent and distribution; (4) the fractional interest acquisition program; (5) establishment of fair market value; and (6) land ownership information.

After years of negotiation throughout Indian County and the lawmakers in Washington, D.C., the 108th Congress passed the American Indian Probate Reform Act of 2004 (Public Law 108–374) (became effective June 20, 2006) amending the Indian Land Consolidation Act designed to reduce tribal land fractionation. Public Law 108–374 attacks fractionation from several directions - a uniform federal Indian probate code instead of the state laws that used to govern Indian probate activity, an exception to the federal code for tribes with their own probate codes in place, grants for estate planning assistance on reservations, land consolidation options for tribal members, continuation of a federal land ''buy back'' program, cancellation of the impracticable ''joint tenancy with right of survivorship'' clause of the Indian Land Consolidation Act (which the new law amends), greater flexibility for individuals and tribes to consolidate and acquire interests during the probate process, forced sale at probate (for fair market value) of interests in land of less than 5 percent, and opportunities for estate planning among heirs at probate as well. The Attached Act (pdf) contains the statutory language and includes technical amendments passed by Congress in 2005 and 2006, as well as a incorporating a proposed technical amendment S. 3526 (pdf) currently pending before congress. The legislation focuses on a number of interrelated issues by:

  • Buying back lands once held by tribes or purchasing lands near or on reservations from owners whether Indian or non-Indian (often called land consolidation);
  • Developing a federal unified and more easily understood probate code for tribes (which must now contend with 33 state codes) and ending the probate backlog;
  • Clarifying the definition of "Indian", and "eligible heirs" in the context of trusts, public domain allotments, and restricted lands; and
  • Providing will drafting assistance and estate planning in Indian Country in order to help families plan for the future.

The Great Lakes Indian Law Center at the University of Wisconsin School of Law has posted an Estate Guide Handbook for Native AmericansAdobe Acrobat Reader is Required to View this File.

The Changing Landscape of Indian Estate Planning and Probate, Adobe Acrobat Reader is Required to View this File. by Douglas Nash and Cecelia Burke
A comprehensive overview of the American Indian Probate Reform Act of 2004. The purpose of this article is to provide an understanding of the American Indian Probate Reform Act (AIPRA). First, the history of events leading up to AIPRA—essential information to understand the issues it purports to address—will be discussed. Second, provisions of AIPRA are discussed by key topics including the following: application to intestate and testate estates; rules of interpretation; application of AIPRA to trust personalty; mechanisms provided to reduce fractionation and consolidate ownership interests; tribal probate codes; and general rules governing the probate of Indian trust estates.

Understanding the American Indian Probate Reform Act of 2004 is a document prepared by the Bureau of Indian Affairs & Office of the Special Trustee for American Indians and answers many question trust holders may have about the impact of the act on probate and trust lands.

In April 2005 the Department of Interior sent out the First Notices to Indian Landowners required by the American Indian Probate Reform Act of 2004, (Public Law 108–374). The notice is required under Section 8 of the Act, and it is intended to inform landowners of the changes to the law and provide them with an opportunity to write a will or make changes to their estate plan. The Secretary’s certification of the notice triggers a one year period before the new probate provisions become effective.

The Indian Land Tenure Foundation created the Institute for Indian Estate Planning and Probate in May of 2005. The Institute opened its doors at Seattle University School of Law on August 1, 2005, with a mission of providing training on the American Indian Probate Reform Act and estate planning services to Indian Country. The Institute currently oversees estate planning projects in eight states, including law school externship projects funded by the ILTF, and estate planning legal service projects in the Northwest, Midwest and Great Plains regions funded in part by grants from the Paul Allen Foundation and the Bush Foundation. The Institute is actively working to establish new projects as funding permits, engaging in fund-raising activities to support this work, and providing training at all levels on estate planning in Indian Country under the new Act.

Historical Overview

Congress passed the General Allotment Act, which divided Native American reservation land into parcels, in 1887. The act was intended to weaken the tribal structure by encouraging the development of individually-owned Native American farms, and to protect Native American ownership of reservation land. The division of the land, however, opened up large areas for white settlement. In 1898, the Curtis Act extended all provisions of the General Allotment Act to the Indian Territory, making the land of the Cherokee, Choctaw, Chickasaw, Creek, and Seminole tribes eligible for allotment. Before the General Allotment Act was repealed in 1934, the US government, in addition to land swindlers, had divested Native Americans of about 90 million acres, or close to two-thirds of their land.

The execution of an Indian will is controlled by 25 U.S.C. § 373 and 43 C.F.R. § 4.260-262, not state law. Estate of Carrie Standing Haddon Miller, Adobe Acrobat Reader is Required to View this File.10 IBIA 128 (1982). Whether an Indian decedent has executed a will passing trust property is a question of Federal, not state law. Estate of Teresa Mitchell, Adobe Acrobat Reader is Required to View this File.25 IBIA 88 (1993). Publication is not required for valid execution of a will conveying trust property. Estate of Ella Dautobi, Adobe Acrobat Reader is Required to View this File.15 IBIA 111 (1987); Estate of Lena Abbie Big Bear Yellow Eagle, Adobe Acrobat Reader is Required to View this File.17 IBIA 237 (1989). A will has been revoked when it has been physically destroyed, a statement has been signed declaring the intent to revoke it, and the testator had testamentary capacity at the time of revocation. Estate of Stella Red Star/Swift Bird, Adobe Acrobat Reader is Required to View this File.16 IBIA 131 (1988).

Fractionated Ownership of Indian Lands

Indian lands continue to be plagued by fractionated heirship problems where property is held by so many owners in common that effective use of the property is not possible. The fractionated heirship problem is set forth in a report entitled Fractionated Ownership of Indian Lands which is an addendum to the Strategic Plan to Implement the Reforms required by the American Indian Trust Fund Management Reform Act of 1994 (from the Internet Archive) prepared by the Office of the Special Trustee for American Indians, Department of the Interior (from the Internet Archive).

The Native American Documents Project at Cal State San Marcos was begun in 1992 by Prof. E.A. Schwartz to develop methods for making documents of federal Indian policy history accessible by computer. The material about allotment – a significant development little known to non-specialists – was compiled originally for two conference papers, both intended to refute the once-conventional interpretation of the enormous Indian loss of land after allotment as a result of Indian unwillingness to take up "civilized" responsibilities.

Legislation:

  • • The Dawes Act (or General Allotment Act) of 1887, which allowed the government to order allotment at will and served as the basis of most future allotments.
  • • The 1891 amendment to the Dawes Act, which permitted smaller allotments.
  • • The Act for the Relief of the Mission Indians (1891), which expedited the loss of Indian water rights in Southern California.
  • • The Burke Act (1906), an amendment to the Dawes Act that effectively eliminated the twenty-five-year trust period for allotments
  • • The 1910 omnibus act, which deals with a number of issues arising from allotment.

The Indian Land Working Group (ILWG) began in 1991 in Pendleton, Oregon and is dedicated to the restoration and recovery of our native land base. Over 100 tribes gathered to discuss and exchange ideas related to preserving tribal homelands and placing tribal governments and tribal peoples, in a position to control, manage, and use these homelands. Preservation of our tribal homelands assures the continuation of our nations and culture, now and for future generations. Some links of this site are Symposium 2003, Allotment Act, Allotment Impact, Allotted Reservations, Goals& Projects, Videos & Publications, Allottee Association, Newsletter, Related Sites, and Bulletin Board.

The Indian Land Tenure Foundation is a nonprofit organization that is community organized and community directed. The community includes Indian landowners, Indian people on and off reservations, Indian land organizations, tribal communities, tribal governments and others connected to Indian land issues.

The Department of the Interior proposed further legislative solutions (or Indian Land Consolidation Act amendments) to the fractionated heirship problem in its Fractionated Ownership of Indian Lands report.

An overview of Land Allotment practices in Indian Country can be found in Cases and Materials on Problems in Lands Allotted to American Indians, by Joseph F. Rarick, J.S.D., and David Ross Boyd, Professor of Law College of Law University of Oklahoma.

Indian Land Consolidation Act

Congress enacted the Indian Land Consolidation Act (ILCA) in 1983 and substantially amended it in 1984. The Indian Land Consolidation Act attempted to address the fractionated ownership problem by:

  1. authorizing tribes to Develop Land Consolidation Plans which could include the buying, selling, and trading of fractionated interests; 
  2. authorizing tribes to enact laws which Restrict the Rights of Non-Indians or Non-members to Inherit Trust or Restricted Lands on their Reservations; and 
  3. providing that Small Interests Shall Escheat (go) to the Tribe.

The U.S. Supreme Court, however, has twice overturned the Escheat Provision of the Indian Land Consolidation Act as a Fifth Amendment taking of property without just compensation. First, the Supreme Court overturned the original 1983 escheat provision in Hodel v. Irving, 481 U.S. 704 (1987) and then the Supreme Court overturned the 1984 escheat provision in Babbitt, et al. v. Youpee, Sr., et al. , 95-1595, 24 Indian Law Reporter 1004, decided January 21, 1997.4

Indian Land Consolidation Act Amendments - Public Law 106-462 (Text, PDF) 25 USC 2201.
This Act amends the Indian Land Consolidation Act and attempts to reduce the fractionated ownership of Indian lands. It was introduced by Senator Ben Nighthorse Campbell  (R-CO) on September 15, 1999 (see Press Release). The Senate Committee on Indian Affairs held a Hearing on the Draft Bill (S.1586) and issued a Report on this Draft Bill.

Interior Board of Indian Appeals

The Interior Board of Indian Appeals (IBIA) is an appellate review body where administrative judges decide appeals from a wide array of decisions rendered by the Bureau of Indian Affairs (BIA). Examples include BIA decisions regarding tribal government disputes, economic development matters, treaty rights, various types of leases and rights of way on Indian lands, taking land into trust, trespass actions, and land sales, exchanges, and encumbrances. IBIA also decides appeals from Indian probate cases adjudicated by administrative law judges and Indian probate judges in OHA's Probate Hearings Division. IBIA also decides appeals from decisions rendered by agency officials and administrative law judges in cases under the Indian Self-Determination and Education Assistance Act. IBIA is headed by a Chief Administrative Judge. Its decisions are final for the Department and may be appealed to the United States district courts.

Contact Information

Interior Board of Indian Appeals
Office of Hearings and Appeals
U.S. Department of the Interior
801 N. Quincy Street, Suite 300
Arlington, VA 22203
703-235-3816

Resources

Finding IBIA Decisions
Indian Self-Determination Act
Procedural Regulations for Cases before the Interior Board of Indian Appeals
IBIA Jurisdiction
FAQs on Practice before IBIA
Articles about IBIA
Finding Pre-IBIA Decisions

Tribal Probate Procedures

California Indian Legal Services (CILS) has developed a publication entitled What Do I Need To Know About Probate When My Indian Loved One Passes Away? that answers some of the most frequently asked questions about probate that you may have after an Indian loved one passes away. This guide focuses on situations where the person who passed away had land in his or her name (on- or off-reservation). Probate is a complicated area of the law, and this guide is only an introduction to the probate process.

Fort Peck Court of Appeals lists the Fort Peck Probate and Guardianship Code.

The Penobscot Nation Tribal Court provides an explanation of tribal probate procedures for the Penobscot Nation Tribal Court in Maine.

White Mountain Apache Probate Code can be found on the Native American Constitution and Law Digitization Project Site.

The Stockbridge-Munsee Community provides an on-line version of the Stockbridge-Munsee Probate Code as a service to the Tribal members, and as a courtesy to other Internet users. (Note: this on-line version is not official).

 

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