What Will Happen To
Your Land When You Pass
On?
The American Indian Probate Reform Act
and What It Means For You
Presented by the Faculty and Students of The American Indian Law Clinic,
University of Colorado School of Law, Boulder, Colorado.
Funded by a grant from the Colorado Bar Foundation.
The Problem of Fractionation:
The Dawes Act
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Enacted in 1887;
Authorized allotment of Indian reservations;
Did not permit Indian allotment owners to sell
allotments or will allotments after death;
Upon the allottee’s death, the U.S. determined
heirs and distributed allotments to these heirs
according to applicable state law;
Allotments could be devised by will under a
1910 amendment to the Dawes Act, but only
with Federal approval.
The Plot Thickens…
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A 1906 amendment to the Dawes Act permitted
allottees to receive their allotments in “fee” if
they were “competent” to manage it without
U.S. oversight;
Soon, many Indian allottees were found
competent and received their allotments in
“fee”;
Land speculators and state property tax
assessors took advantage of Indian allottees
who spoke and read little English and/or had no
money to pay taxes;
Within a short time, 90,000,000 acres of
allotments were taken out of Indian hands.
Case Study: Paul Mountain
Paul Mountain was issued an 80-acre allotment on the
Galena Reservation in Montana. Paul had five children
but never prepared a will. Paul died and his allotment
passed to his five children under Montana law. The
allotment was divided into five 16-acre parcels, one for
each child. Each child had five children in turn and did
not prepare wills. Each 16-acre parcel then passed to
Paul’s grandchildren and the original allotment
eventually was divided into twenty-five 3.2-acre
parcels. The divisions continued through the
generations until each parcel was .13 acres, just over
1/10 of a football field. The result? Paul’s 80-acre
allotment now has 625 owners, none of whom can
exclusively use or make decisions regarding the land
without the approval of the majority of the other
owners.
The Effects of Fractionation:
Startling Statistics
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Some allotment shares are as small as one
nine-millionth of the original parcel;
If the smallest shares could be physically
partitioned, they would be smaller than a piece
of paper;
The average allotment has 17.4 owners;
The number of allotment shares under 2%
doubles every seven years;
The number of fractional shares could increase
from 1.5 million in 1994 to 11 million by 2030;
The BIA estimates that 50-75% of its realty
budget is spent managing fractionated
interests.
The Indian Land Consolidation Act (ILCA):
Long-Overdue Congressional Fix?
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Enacted in 1983, repeatedly amended;
Authorized tribes to adopt plans to consolidate
tribal lands through purchase, sale or exchange;
Authorized tribes to adopt probate codes;
Interior Secretary approval required for plans
and codes;
Approval received for only small numbers of
plans and codes;
Cobell litigation (filed 1996) motivated Congress
to act to reduce owners of fractionated
allotments.
American Indian Probate
Reform Act
Tribal Probate Codes and the
Federal Probate Code
Tribal Probate Code or Federal
Probate Code?
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If you do not write a will, your trust property
will pass under the new federal probate code
OR approved tribal probate codes*, rather than
under the state probate law
Tribal Probate Code
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Tribes may adopt a code to govern descent and
distribution of trust and restricted lands that are
located within the Tribe’s reservation or lands that are
otherwise within the Tribe’s jurisdiction
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If a Tribe adopts a code, the tribal code applies and
NOT the federal probate code
Tribal Probate Code
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The U.S. Department of the Interior has
proposed regulations to clarify what the
Secretary will consider before approving a
tribal probate code. The proposed regulations
are as follows:
Proposed Rule for Tribal Probate
Codes
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The tribal code may include rules of intestate
succession and other provisions consistent
with federal law that promote the consolidation
of fractionated interests in individual Indian
allotments
Proposed Rule for Tribal Probate
Codes
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Only those tribal codes that govern the descent
and distribution of trust and restricted lands
require Department of Interior Secretarial
approval
Proposed Rule for Tribal Probate
Codes
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Only one tribe has an approved tribal probate
code under AIPRA (the Lummi Nation), but
you should contact your Tribe and inquire
about the Tribe’s plans to develop a tribal
probate code
DOI Approval of Proposed Tribal
Probate Codes
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The Secretary of the Department of the Interior
will consider several factors when
determining whether to approve a tribal
probate code
Factors
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1. The code must promote the policies of the Indian
Land Consolidation Act (ILCA), which are to:
prevent further fractionation, consolidate fractional
interests into useable parcels; consolidate fractional
interests to enhance tribal sovereignty; to promote
tribal self-sufficiency and self-determination; and
reverse the effects of the allotment policy on Indian
tribes
Factors
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2. The code must allow an Indian lineal
descendant of the original allottee to inherit an
interest in land. The code must also allow
non-member Indians to inherit an interest in
land.
Approval Process
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To begin the approval process, a Tribe must
submit a tribal probate code or amendments to
an existing probate code to their local BIA
office
Approval Process
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The BIA will have 180 days from the day of
submission to approve or disapprove a tribal
probate code
Approval Process
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If the Regional BIA Director does not take
action within 180 days, the amendment to the
code will be considered approved, but only to
the extent that it is consistent with federal law
and promotes ILCA
Approval Process
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The BIA Regional Director’s approval only
applies to those sections of the code that
govern the descent and distribution of trust or
restricted land; the Director will notify the
tribe and also publish a notice and date of the
approval in the Federal Register
Approval Process
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If the Secretary of the Interior disapproves a
tribal probate code or amendment to an
existing tribal probate code, the Secretary must
provide the Tribe with a written notification
explaining the reasons for the disapproval
Approval Process
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Notification of a tribal code is required either
by direct mail to tribal members or by
publication in a newspaper or other similarly
circulated publication on the Tribe’s
reservation
Federal Probate Code
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Because only one Tribe has an approved tribal
probate code, it is most likely that the federal,
uniform tribal probate code will apply to you
Federal Probate Code
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The Federal Probate Code applies ONLY IF
THERE IS NO APPROVED WILL and no
approved tribal probate code
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Different rules apply if you write a will
Advantage of Writing a Will
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By writing a will, you can designate how your
trust land will be transferred in trust to any
Indian person or to your lineal descendants
even if they are not enrolled tribal members
Advantage of Writing a Will
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By writing a will, you can control how your
trust property is passed by creating an estate
plan, such as a will or deed
Writing a Will
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If you decide to write a will, you are not
required, but should strongly consider
consulting an attorney to make sure your will
is legally enforceable
Without a Will (Intestate)
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If you do not write a will, your trust property
will continue to be inherited by your
immediate family
Intestate
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Your trust or restricted property will be divided into
two categories at probate:
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Those interests LESS than 5%, AND
Those interests GREATER than 5%
Different intestacy rules apply to each category. The
rules were drafted in an attempt to stop further
fractionation of trust lands and to support
reconsolidation efforts
Interests GREATER than 5%
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Eligible Heirs without a Will (Intestate) for
interests GREATER than 5%:
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An Indian
Lineal descendents within two degrees of
consanguinity*
Co-owners of a trust or restricted interest in the
decedent's trust or restricted parcel to be inherited
Two Degrees of Consanguinity
Grandparents
2 Degrees
Parents
1 Degree
Aunts and Uncles
3 Degrees*
Brothers/Sisters
2 Degrees
YOU
Children
1 Degree
Grandchildren
2 Degrees
Eligible Heirs without a Will
(Intestate) for interests GREATER
than 5%
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1. Interests transfer to spouse as a LIFE
ESTATE
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2. When spouse dies, interest will pass to
children equally
Eligible Heirs without a Will
(Intestate) for interests GREATER
than 5%
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3. If a child dies before you, their interest will transfer
to any children (your grandchildren) they have. The
grandchildren will receive an undivided interest
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4. If you do not have any children or grandchildren
who survive you, your interest goes to your parents
Eligible Heirs without a Will
(Intestate) for interests GREATER
than 5%
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5. If you do not have any children, grandchildren, or
parents who survive you, your interest goes to your
siblings
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6. If you do not have any children, grandchildren,
parents, siblings who survive you, your interest goes
to the Tribe that has jurisdiction over your lands
Eligible Heirs without a Will
(Intestate) for interests LESS
than 5%
The SINGLE HEIR RULE applies
Single Heir Rule
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The surviving spouse will receive a life estate
only in the trust or restricted parcel they reside
upon at the time of the decedent’s death.
Single Heir Rule
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All other interests and the spouse’s remainders
will transfer only to a SINGLE ELIGIBLE
HEIR - the oldest surviving eligible child,
grandchild or great grandchild
Single Heir Rule
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If there are no single eligible heirs, the interest
will transfer to the tribe with jurisdiction
Resources
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If you would like to read a copy of AIPRA in
its entirety, the text of law can be found at:
http://www.indianwills.com/Documents/AIPRA.pdf
Steps for Determining
Your Tribal Trust
Land Interests
Determining Your Land Interest
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Before you start planning your estate or writing a
will, you should know what assets and land you
have to pass on to your heirs.
• If you do not already have up-to-date information
regarding your interests in allotted land held in
trust or income from this land, you can take the
following steps to get current reports from the BIA.
1. Gather your personal information, including:
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Your full name
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Your date of birth
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Your Social Security Number
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Your Tribal enrollment number
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Your Tribe’s reservation or town
2.
You may also wish to find as much of the above
personal information about relatives from whom you
may have inherited land interests. Please note,
however, that this step usually is not necessary;
land interest reports typically are fairly complete.
3. Determine which BIA office services your Tribe’s
reservation. To find contact information for your
local BIA office, call the Department of the
Interior’s Office of the Special Trustee (OST) at
1-888-678-6836 ext. 888.
4. Call your local BIA office and ask to be transferred
to the realty office.
5. Ask the realty office to help you determine your
interests in land or income from the land.
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Make sure to write down the names of the people you
speak with, including the date that you called.
Make sure you have your personal information on
hand when you call.
Follow the directions you receive from your BIA office
to receive current reports.
If you feel dissatisfied with the information you get, or if
you are still unable to determine your landholdings, try
calling other BIA offices in the area.
6. If you have to submit your request for reports in
writing, complete the report request forms:
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Individual Trust Inventory report (ITI) for your land
interests
Individual Indian Money Account report (IIM), for your
income (usually land or mineral leasing) interests
To complete the forms, simply fill in your personal
information and address the form to your BIA office.
Important Questions You
Should Ask Before You
Hire an Attorney
1. Are you familiar with the American
Indian Probate Reform Act (AIPRA)?
If not, would you be willing to become
familiar with AIPRA?
2. Do you have experience writing
wills dealing with real property?
3. Are you familiar with preparing wills
that deal with real and personal property
located in two or more jurisdictions (i.e.
Southern Ute Reservation and State of
Utah)?
4. What are your fees?
Do you bill by the hour or require a flat
fee?
Can you provide a written estimate for
the services you will perform?
5. How available are you?
How can I contact you?
How long will it take you to return my
call, letter or e-mail?
Things you can expect your lawyer to do:
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Work with you to draft a will
Research and analyze all available facts and
information related to your problem
Keep you informed about what is going on in your
case and answer your questions
Discuss fees with you at your first visit, and come to
an agreement about payment
Be honest with you about any potential problems
and the time it will take solve them
Keep in confidence anything you say
Prepare all necessary documents
Questions and Comments