What Will Happen To Your Land When You Pass On?

1. 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.

2. The Problem of Fractionation: The Dawes Act • 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.

3. The Plot Thickens… • 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.

5. 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.

6. The Effects of Fractionation: Startling Statistics • 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.

7. The Indian Land Consolidation Act (ILCA): Long-Overdue Congressional Fix? • 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.

8. American Indian Probate Reform Act Tribal Probate Codes and the Federal Probate Code

9. Tribal Probate Code or Federal Probate Code? • 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

10. Tribal Probate Code • 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 • If a Tribe adopts a code, the tribal code applies and NOT the federal probate code

11. Tribal Probate Code • 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:

12. Proposed Rule for Tribal Probate Codes • 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

13. Proposed Rule for Tribal Probate Codes • Only those tribal codes that govern the descent and distribution of trust and restricted lands require Department of Interior Secretarial approval

14. Proposed Rule for Tribal Probate Codes • 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

15. DOI Approval of Proposed Tribal Probate Codes • The Secretary of the Department of the Interior will consider several factors when determining whether to approve a tribal probate code

16. Factors • 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

17. Factors • 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.

18. Approval Process • 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

19. Approval Process • The BIA will have 180 days from the day of submission to approve or disapprove a tribal probate code

20. Approval Process • 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

21. Approval Process • 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

22. Approval Process • 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

23. Approval Process • 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

24. Federal Probate Code • 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

25. Federal Probate Code • The Federal Probate Code applies ONLY IF THERE IS NO APPROVED WILL and no approved tribal probate code • Different rules apply if you write a will

26. Advantage of Writing a Will • 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

27. Advantage of Writing a Will • By writing a will, you can control how your trust property is passed by creating an estate plan, such as a will or deed

28. Writing a Will • 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

29. Without a Will (Intestate) • If you do not write a will, your trust property will continue to be inherited by your immediate family

30. Intestate • Your trust or restricted property will be divided into two categories at probate: • 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

31. Interests GREATER than 5% • Eligible Heirs without a Will (Intestate) for interests GREATER than 5%: • 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

32. Two Degrees of Consanguinity

33. Eligible Heirs without a Will (Intestate) for interests GREATER than 5% • 1. Interests transfer to spouse as a LIFE ESTATE • 2. When spouse dies, interest will pass to children equally

34. Eligible Heirs without a Will (Intestate) for interests GREATER than 5% • 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 • 4. If you do not have any children or grandchildren who survive you, your interest goes to your parents

35. Eligible Heirs without a Will (Intestate) for interests GREATER than 5% • 5. If you do not have any children, grandchildren, or parents who survive you, your interest goes to your siblings • 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

36. Eligible Heirs without a Will (Intestate) for interests LESS than 5% The SINGLE HEIR RULE applies

37. Single Heir Rule • 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.

38. Single Heir Rule • 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

39. Single Heir Rule • If there are no single eligible heirs, the interest will transfer to the tribe with jurisdiction

40. Resources • 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

41. Steps for Determining Your Tribal Trust Land Interests

42. Determining Your Land Interest • 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.

43. 1. Gather your personal information, including: • Your full name • Your date of birth • Your Social Security Number • Your Tribal enrollment number • Your Tribe’s reservation or town • 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.

44. 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.

45. 5. Ask the realty office to help you determine your interests in land or income from the land. • 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.

46. 6. If you have to submit your request for reports in writing, complete the report request forms: • 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.

47. Important Questions You Should Ask Before You Hire an Attorney

48. 1. Are you familiar with the American Indian Probate Reform Act (AIPRA)? If not, would you be willing to become familiar with AIPRA?

49. 2. Do you have experience writing wills dealing with real property?

50. 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)?