indian - UANativeNet

Mary E. Guss
IPLP Staff Attorney
Historical US Indian Policies
 Treaty Making - Ended in 1871
 Removal – Particularly after Louisiana
 Allotment and Assimilation – 1887 Dawes Act
 Indian Reorganization Act – Passed in 1934
 Termination – 1945 to 1961
 Self Determination – 1961 to present
Dawes or
General Allotment Act
Passed by US Congress in 1887
Stated purposes: eradicate Indian tribalism and
Transfer parcels of land in fee ownership to
individual Indians after holding in trust for 25
“Surplus” lands sold to settlers
Between the passage
of the Dawes Act and
its abandonment in
1934, tribes lost 86
million acres , or
almost 70%, of their
The Act was a failure
for other reasons as
What happened to the lands when an
owner died without leaving a will?
Property passed
according to
state or territorial probate
• Heirs receive undivided fractions of the
allotment; many are
• Need majority approval to do anything with
the property
• 2011 report by DOI - 4.1 million fractionated
interests in Indian Country, reflecting ownership of 99,000 fractionated tracts
• NCAI – 2006 report says 120,000 tracts with
over three million ownership interests
Allotted Lands in Arizona
Number of acres
Salt River Pima – Maricopa
Gila River Indian Community
Tohono O’Odham, San Xavier
Colorado River Indian Tribes
San Carlos Apache
Yavapai-Apache Nation
Indian Land Consolidation Act
• Passed in 1983 to finally try to do something
about fractionation
++ Tribes could adopt consolidation plans to buy, sell and
trade fractional interests
++ Tribes could restrict inheritance to tribal members or
++ Had an escheat provision for ownerships interests
under 2% (subsequently disallowed)
American Indian Probate Reform Act
25 U.S.C. §§ 2201-2221
Is an amendment to ILCA
Passed in 2004; effective 2006
Designed to help stop fractionation
• Through wills
• Through land consolidations
• First/only federal probate code
• The 5% Rule
If the allottee owns less than 5% of the
original allotted tract then the interest can only
go to a single person
Heir will be the oldest living eligible child,
grandchild or great-grandchild.
If no eligible heir then tribe, co-owners or
US (in that order)
Intestacy, con’t
If interest is 5% or greater it goes to:
1st – equally to children, grandchildren or
great grandchildren
2nd – eligible parents or siblings
3rd – tribe with jurisdiction
4th – Co-owners
Last – if none of the above, then fed gov, to
Who is an eligible heir?
Indian, or
A lineal descendant within two degrees of
consanguinity of an Indian, or
An owner of a trust assets or restricted
interest in a parcel of land pre-2004
Then - can inherit Indian trust land in trust
AIPRA definition of INDIAN
• Member or eligible to become a member of
an Indian tribe, or
• Owner of a trust or restricted interest in land
• Anyone meeting the IRA definition
• [Special provisions in Section 2201 for
With a Will
5% rule goes away
Still need to leave property to eligible heir (trust)
Want to leave property in fee?
Non-IRA tribes only
And only if heir does not fit definition of
eligible heir
But tribe may step in and purchase
Ways to stop fractionation
• Leave all interests to one individual
• Leave specific parcels to specific heirs
• Leave interests to joint tenants with the right
of survivorship
• Gift Deeds
A little bit about life estates
• Without a will: Spouse is entitled to a life
estate, whether Indian or not, without regard
to waste. Must live on the property.
• With a will: Can leave a life estate to anyone
(whether eligible heir or not) so long as it goes
to an eligible heir upon their death.
• Deliberately omitted spouse may still be
entitled under certain circumstances
Writing Indian Wills
Formal requirements:
In writing, signed and dated by testator
Two witnesses (who are taking nothing)
Testator over 18 and of sound mind
Know what property they own and
Know who they want to leave it to
Pay attention to confidentiality and undue influence
How do you know what a person
has? BIA Documents:
1. Individual Interests (property) Report
(IIM) Report
Disposing of Trust Property
Note: Trust property cannot be
left in trust. No PR is required
Four basic options:
Single heir
Specific parcel/specific heirs
Joint tenants with right of survivorship
Tenants in common
Disposing of Trust Property, con’t
Can leave trust interests to:
any lineal descendant or
any person who owns a preexisting undivided trust/restricted interest in the parcel or
the Indian tribe with jurisdiction or
any Indian.
Disposing of Trust Property, con’t
Can leave trust interests to tenants in common
by representation
Property will continue to fractionate
If own 100% of an allottment can leave all or
part(s) to named heirs
Describe parcels or subdivide
BIA considers homes to be personal property
Each BIA office is different, but
typically an owner receives an
assignment for the home
Can designate a beneficiary
Home may or may not be on a person’s allottment
Bequest of trust land includes “permanent improvements attached” to the land
Best to mention the home specifically
Trust Personal Property
Called trust personalty in AIPRA; defined as:
…all funds and securities of any kind
which are held in trust in an IIM account
or otherwise supervised by the SOI
May be devised to ANY person or entity
If to eligible heir, BIA continues to manage
If not, funds are disbursed outright
Personal Property
Arizona allows for a separate writing disposing of personal property; can include that
Tribal pre-AIPRA probate code may apply to
on-reservation personal property
Off-reservation personal property goes
through state probate proceedings
Other items to include in the will
Non-trust real property
If it’s off-reservation, state law controls
On reservation, will be tribal law
Funeral requests?
Residuary Clauses
To cover property acquired after the will was
Recommend one for trust and one for nontrust property
Include an eligible heir in the one for trust
What if spouse is omitted?
Will be treated as though no will
had been written. But only if:
1. Continuously married for 5 years
w/o legal separation prior to death
2. Testator and spouse have a child
3. Spouse has made substantial payments or
4. Spouse has binding obligation to make
[25 USC Sec. 2206(j)(2)(iii)]
Affidavit to Accompany Indian Will
Signer indicates they’re over 18, of sound
mind and free of undue influence
Two witnesses and a notary
Storing the will
Can Trust property be transferred
OUT of trust via will?
ONLY if:
It is bequeathed to a non-eligible heir
If the land is non-IRA land and
If the tribe has a constitution or bylaws
permitting such a transfer
Secretary of Interior-approved tribal probate codes
can override many provisions of AIPRA
To date only one tribe (Umatilla) has such a code
Works to prevent transfers of trust lands to non
tribal members; found at:
Pre-AIPRA tribal probate codes will still control
inheritance of non-trust property on the reservation
Gift Deeds
Another way to stop fractionation
Each BIA realty office has different documents;
get the forms from the appropriate one
BIA issues the deed based on info provided
Once the property is deeded it cannot be
Additional Reading
• Anthony Franken, Dealing with the Whip End of
Someone Else’s Crazy: Individual-Based
Approaches to Indian Land Fractionation, 57
University of South Dakota Law Journal, Vol. 2,
345 (2012)
• Kristina L. McCulley, The American Indian Probate
Reform Act of 2004: The Death of Fractionation
or Individual Native American Property Interests
and Tribal Customs, 30 American Indian Law
Review, Vol. 2, 401 (2005-2006)
Helpful web sites
• Seattle University Institute for Indian Estate
Planning and Probate:
• Montana University:
Helpful web sites, con’t
anning_handbook_final.pdf from the University of Wisconsin Great Lakes Indian Law

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