THE AMERICAN INDIAN PROBATE REFORM ACT OF 2004: THE DEATH..., 30 Am. Indian L. Rev. 401
30 Am. Indian L. Rev. 401
American Indian Law Review
2005-2006
Comment
THE AMERICAN INDIAN PROBATE REFORM ACT OF 2004: THE DEATH OF FRACTIONATION
OR INDIVIDUAL NATIVE AMERICAN PROPERTY INTERESTS AND TRIBAL CUSTOMS?
Kristina L. McCulley a1
Copyright (c) 2006 American Indian Law Review; Kristina L. McCulley
I. Introduction
The public outcry protesting the Supreme Court's recent expansion of Fifth Amendment takings jurisprudence in Kelo v. City
of New London 1 reflects the citizenry's devotion to preserving the right of private property as an important American value. 2
Although the ramifications of Kelo surprised most of the nation, 3 Native Americans have long known the sting of injustice
in having their property rights stripped away by the federal government with the approving sanction of the Supreme Court. 4
While the general population *402 recovers from its shocked disbelief that the highest court in the nation would uphold the
effective removal of personal property rights, Native Americans have suffered similar injustices for hundreds of years. Long
before Susette Kelo ever filed suit, from the time of conquest to the present day, the federal government has enacted legislation
and policies that have consistently taken both tribally held, and even individually held, land away from Native Americans. 5
Native American tribes have consistently lost their lands through removal from their homeland, the allotment of tribal lands
into individual parcels, and the escheatment of those individual lots back to the jurisdictional tribe or federal government. 6
This comment analyzes the effect of the American Indian Probate Reform Act of 2004, 7 which became effective on June
20, 2006, 8 on Native American probate law and proposes affirmative precautions tribes and individual Indians can take to
retain control over the devisement of their property at death. Part I recounts the history of the allotment process from discovery
to present day and explains the federal-Indian trust relationship and the two kinds of *403 allotment land titles in Indian
Country - those held in trust and those granted as restricted land. Part II addresses the ongoing problems and resultant effects
of fractionation on Indians today. Part III explores Congress's failed attempts to address these problems. Part IV analyzes the
various provisions of Congress's most recent solution, the American Indian Probate Reform Act of 2004 (AIPRA). Part V
analyzes both the merits and demerits of the AIPRA, and Part VI proposes extra precautions and preventive measures that tribes
and individuals can take to protect themselves against further loss of their lands upon death.
A. The Trust Relationship Between the Indian Tribes and the Federal Government
In the Supreme Court's Johnson v. M'Intosh 9 decision, the Court established the federal government's control over Indian
lands by holding that through Great Britain's original right of discovery, the United States acquired an exclusive title to all of
the American lands, subject only to the Indian rights of use and occupancy. It further held that the federal government could
extinguish the Indian right of occupancy either by purchase or conquest. 10 Thus Johnson “constructed the current foundation
for federal Indian land policy by swiftly sweeping Indian land ‘ownership’ into the oddly-hybrid form it retains today: tribal
use at federal sufferance.” 11
In the 1830s, the federal government removed many Indian tribes around the country from their indigenous lands to other
locations, namely the Indian Territory, most of which later developed into the modern state of Oklahoma. 12 In 1831 the
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Supreme Court established a trust relationship between the federal government and the Indian tribes by holding in Cherokee
Nation v. Georgia 13 that the former should not recognize the latter as foreign nations but rather should regard them as “domestic,
dependent nations . . . in a state of pupilage” whose relationship with the United States should “resemble that of a ward to his
guardian.” 14 This language “gave birth to the doctrine of federal *404 trusteeship in Indian affairs.” 15 The next year, in
Worcester v. Georgia, 16 the Supreme Court reaffirmed the tribal right of self-governance but reiterated that the treaties between
the Cherokees and the United States still placed them “under the protection of the United States.” 17 The fiduciary duties owed
to the Indians by the federal government include the protection of Native American land ownership. 18 The Indians held their
land and property as beneficiaries, subject to the control of the United States acting as trustee. 19
In 1887 the allotment process began with the passage of the Indian General Allotment Act, or Dawes Act. 20 This act and similar
legislation privatized Indian land by removing the ownership and control of it from the tribes, dividing it into fragmented parcels,
and conveying these partitions to individual Indians in trust. 21 Before the late nineteenth century, the federal government sought
to separate the Indian tribes from the white citizens. 22 Originally, federal Indian policy preferred removing the tribes to the
“unsettled” territory west of the Mississippi, far away from the American settlers on the east coast. 23 In the 1880s, a fundamental
shift in federal policy resulted from the government abandoning its separatism policy in favor of adopting the new goal of
assimilation. 24 In an attempt to undermine Native American culture and create “autonomous Christian agrarian[s],” the Dawes
Act “divested land from tribes to their members.” 25 The new federal Indian policy goals included the transformation from
hunting to agriculture, native culture and religious practices to Christianity, and eventually, tribal independence to United States
citizenship. 26 The federal government viewed private land ownership as “the primary agent of civilization and citizenship.” 27
The advocates of the new federal assimilation policy “believed that individual ownership of property would turn the Indians
from a savage, primitive, tribal *405 way of life to a settled, agrarian, and civilized one.” 28 The substitution of “tribal
communal ownership of land” for individual, privately owned property served as the “cornerstone of this social engineering, this
‘legal cultural genocide.”’ 29 To guarantee the desired acculturation and assimilation of the Indians into the Anglo-American
rural culture, the “federal government planned to retain legal title and transferred mere beneficial or equitable title to each
allottee.” 30 The Act called for the expiration of the trust period after 25 years but, meanwhile, deemed all land conveyances
null and void unless first approved by the Secretary of the Interior. 31 Burdened by a complete restraint on alienation during the
trust period, the encumbered allotments precluded individual Indians from transferring their land freely and prevented Native
American tribes from applying their common laws of descent or economically using their property. 32 Congress authorized the
disintegration and division of Indian reservations; individual Native Americans received allotments of land in severalty, with
the remaining surplus lands opened to white settlement. 33 In addition to restricting the transferability of Indian property rights
during the allottees' lifetimes, the new constraints also deprived individual allottees of the right to devise their property at will
upon death. 34 Instead, intestacy laws of the surrounding states governed the division of the allotments and often carved up the
already small parcel among multiple children and relatives. 35
Despite its seemingly broad authority, Congress does not enjoy unlimited, absolute power over Indian land and must comply
with both “procedural and constitutional limitations.” 36 Although the Supreme Court held in Lone Wolf v. Hitchcock 37 that
Congressional acts over Indian affairs involved mere “political questions” not subject to judicial review by the courts, 38 more
recently, decisions like Delaware Tribal Business Committee v. Weeks 39 and *406 United States v. Sioux Nation, 40 have
affirmed that “acts of Congress and executive officials are subject to judicial review under ordinary principles of constitutional
and administrative law.” 41 In Hodel v. Irving, 42 the Supreme Court held that the trust relationship does not authorize Congress
to lessen or violate any of the Indians' property rights protected by the Takings Clause of the Fifth Amendment. 43 The Supreme
Court reaffirmed this principle again in 1997 in Babbitt v. Youpee, 44 where it held that amendments to the ILCA did not
cure it of its unconstitutional effectuation of “a taking of private property without just compensation, in violation of the Fifth
Amendment to the United States Constitution.” 45
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B. Modern Land Titles in Indian Country: Allotments Held in Trust or as Restricted Land
Probate proceedings in Indian Country typically involve land titles pertaining to allotments, which may be held in trust or as
restricted land. “Indian Country,” a significant legal term often erroneously interchanged with “Indian Reservation,” 46 broadly
refers to all the land of which the United States government has retained supervision and set aside primarily for Indian use. Indian
Reservations, although one type of land in Indian Country, also include “other areas under federal jurisdiction and designated
for Indian Use.” 47 The legal definition of “Indian Country” includes:
(a) all land within the limits of any Indian Reservation under the jurisdiction of the United States government, notwithstanding
the issuance of any patent, and, notwithstanding rights-of-way running through the reservation,
(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently
acquired territory thereof, and whether within or without the limits of a State which have not been, and
*407 (c) all Indian allotments, the Indian titles to extinguished, including rights-of-way running through the same. 48
Allotments consist of parcels of land, typically 160 acres, that either the federal government holds in trust for individual tribal
members or tribal members hold in fee, 49 subject to certain federal restrictions on alienation. 50 The term “trust land” describes
land, or an interest therein, for which the United States holds fee title in trust for the benefit of an individual Indian.” 51 In many
situations, the federal government also serves as the trustee of allotments to individual Native Americans. 52 The allotments
created by the General Allotment Act 53 were lands held in trust. 54 “Restricted land” refers to land to which an individual
Indian or tribe holds legal title but can not alienate or encumber without the approval of the Secretary of the Interior because
of limitations contained in the conveyance pursuant to federal law. 55
II. Problematic Effects of Fractionation
A. Fractionation
Because the federal government held allotments in trust and thus subjected them to complete restraints on alienation, it
denied individual Indian landowners any ability to transfer their property freely and proscribed Native American tribes from
effectuating local and customary property norms or applying their common laws of descent. 56 The trust system of property
ownership not only restricted allottees' use of their land during their lives but also prevented them from exercising their rights to
determine the devolution or distribution of their allotments upon their death. 57 Instead of subjecting the *408 land interests to
the control and will of the deceased Indian property owner, the intestacy laws of the surrounding states dictated the distribution of
allotments, often to multiple children and relatives. 58 “Thus, allotment required [the] sharing of land among an ever-increasing
number of heirs, as the original allottees died, and left no means for flexible management, sale, or consolidation at any point
in the process. . . . [which] practically mandated the start of fractionation.” 59 Allotment thus created a “grid-like cage” 60
of small, increasingly divided, fractionated private interests that continue “to crowd increasing numbers of co-owners within
these already small boxes, locking many individual Indians and Indian tribes into a self-perpetuating cycle of frustration and
rigid federal control.” 61
The miserable failure of the allotment process, set into motion by the Dawes Act, created this large problem of fractionation,
where increasingly multiple co-owners share the already small parcels of land to the extent that it marginalizes their interests to
the point of nearly negating any feasible economic or practical use of the land. The previous application of the states' probate
laws to Indian landowner's property upon death has only compounded the problem by increasing the number and decreasing
the size of the interests.
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Not surprisingly, fractionation resulted in many serious and problematic effects for these landowners. Fractionation makes the
realistic use of the property nearly impossible which results in decreasing the overall market value and earning potential of
the entire tract. 62 The decreased value robs the fractionalized interest owners from many standard economic benefits of land
ownership “including access to credit, reliable returns on investments and improvements, and the wealth potential for wealth
accumulation.” 63 Additionally, fractionation frequently physically separates Native Americans from their land, a “constructive
dispossession despite maintenance of record title.” 64
*409 III. Failed Congressional Solutions
Because of the devastating affects of fractionation, Congress has made numerous failed attempts to solve these problems. In
1928, the Brookings Institution conducted a large study of these problems and published the Meriam Report of 1928, which
publicized the negative effects of fractionation and advocated the cessation of the allotment policy and the reinstallment of
tribal self-government. 65
In 1934 Congress passed the Indian Reorganization Act of 1934 (IRA) 66 and translated many of the Brookings Institution's
recommendations into legislation. 67 Congress attempted to achieve one of the main goals of the IRA, to “stabilize the tribes'
landholdings,” by ensuring that the federal government created no new allotments and by extending the trust period of the current
allotments. 68 The IRA encouraged the promotion of tribal self-government by supporting the formation of tribal constitutions
and federally chartered corporations. 69 In 1983 Congress passed the Indian Land Consolidation Act (ILCA) 70 in an effort to
consolidate the fractionated interests. The ILCA had its own problems, however, in that it included unconstitutional inheritance
provisions that angered many Native Americans, such as its overly narrow definition of “Indian” used for determining eligibility
for inheriting land in trust at an ancestor's death. The ILCA defined “Indian” according to the quantity of tribal blood which
effectively disinherited many Indians because of intermarriage among various tribes and with non-Indians. The Supreme Court
struck down this provision as an unconstitutional taking without just compensation in violation of the Fifth Amendment of the
United States Constitution in Lone Wolf v. Hitchcock. 71 In 1997 the Court also deemed the later amendments to the ILCA
unconstitutional on the same grounds in Babbitt v. Youpee. 72 Congress next passed amendments to the ILCA in 2000. 73
Because neither the IRA nor any of the versions of the ILCA solved the *410 fractionation and probate problems resulting
from the Dawes Act era, Congress again tried to draft a solution in a proposed bill, the American Indian Probate Reform Act of
2003. 74 Congress has now passed a revised version, The American Indian Probate Reform Act of 2004 (AIPRA). 75 Congress
enacted the most recent amendments to the ILCA in AIPRA on October 27, 2004. 76 The federal government claimed that
the AIPRA provides a much needed answer to the current fractionation and probate problems because it provides valuable
tools to the Department of Interior (DOI), tribal governments, and individual Native American landowners by facilitating the
consolidation of Indian land in order to “restore economic viability to Indian assets.” 77 The DOI alleged that this legislation
solves the probate issues by providing a “clearer method to pass individual Indian land ownership from one generation to
the next” through the creation of a uniform, national Indian probate code that replaces the burdensome various state probate
code provisions. 78 The DOI explained that the AIPRA benefits tribal governments because it simplifies the once complex,
cumbersome probate process by creating one uniform federal code, thus sparing tribes from having to trudge through the
confusing, complicated probate laws of thirty-three different states. Now tribal leadership will only have to look at one unified
federal code to inform and train its members on the best protection for their land and property interests. Furthermore, this law
establishes a new definition of “highly fractionated Indian land” 79 and provides more flexibility for individuals and tribes to
“consolidate and acquire interests during the probate process.” 80 The AIPRA also provides a new definition of “Indian” that
*411 accounts for the various possibilities resulting from inter-tribal and non-Indian marriages and remedies the constitutional
challenges by allowing heirs to be defined by lineage instead of by blood quantum.
The DOI and the Board of Indian Affairs (BIA) champion the AIPRA because it will allegedly help some of the other
administrative problems resulting from fractionation. Namely, these agencies look forward to the decreased administrative
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costs of administering these fractionated interests due to the AIPRA's encouragement of consolidating land interests, which
will also help “restore economic viability to Indian Assets.” 81 Specifically, the then chairman of the Senate Committee
on Indian Affairs, Senator Ben Nighthorse Campbell (R-Colo.), and chairman of the Resources Committee in the House of
Representatives, Representative Richard Pombo (R-Calif.), champion the AIPRA for attacking the fractionation problems by
1) providing a uniform federal Indian probate code to replace the numerous state laws, 2) allowing an exception to the federal
code for superseding tribal probate codes, 3) allocating “grants for estate planning assistance on reservations,” 4) offering “land
consolidation options for tribal members,” 5) “continu[ing] the federal land “buy back” program,” 6) providing individual
Indians and Native American tribes greater flexibility “to consolidate and acquire interests in the probate process,” 7) forcing
the sale at probate for fair market value of individual interests consisting of less than five percent of the whole, and 8) creating
“opportunities for estate planning among heirs at probate as well.” 82
The AIPRA concerns some Native American landowners who fear that it will allow their land and property to escheat back
to the federal government or their tribes more easily. The AIPRA changes the probate laws for Indian property belonging to
Native American individuals who die intestate. Specifically the AIPRA continues the federal “buy back” program and includes
a partition and sale provision that allows the DOI and other common owners to purchase interests in land that consist of less
than 5% of the total interest for fair market value as determined by the Secretary of the Interior during the probate proceeding
without the consent of the heirs. 83 The DOI cautions, however, that this provision does not apply if the interest passes *412
through a valid will or if the heirs live on the land. The DOI consistently reminds Native American landowners of the extreme
importance of writing and validating wills in order to retain control over the inheritance of their property.
IV. The American Indian Probate Reform Act of 2004 (AIPRA) 84
A. Congress's Recognition of the Problem
The federal government has recognized that its previous efforts at remedying the problematic effects of fractionation resulting
from its failed allotment policies have proven ineffective. Congress has recognized such by stating in the AIPRA:
Congress finds that (3) the reliance of the Federal Government on the State law of intestate succession with respect to the descent of allotments has
resulted in numerous problems affecting Indian tribes, members of Indian tribes, and the Federal Government, including (A) the increasingly fractionated ownership of trust and restricted land as that land is inherited by successive generations of
owners as tenants in common;
(B) the application of different rules of intestate succession to each interest of a decedent in or to trust or restricted land if that
land is located within the boundaries of more than 1 State, which application (i) makes probate planning unnecessarily difficult; and
(ii) impedes efforts to provide probate planning assistance or advice;
(C) the absence of a uniform general probate code for trust and restricted land, which makes it difficult for Indian tribes to work
cooperatively to develop tribal probate codes; and
(D) the failure of Federal law to address or provide for many of the essential elements of general probate law, either directly
or by reference, which (i) is unfair to the owners of trust and restricted land (and heirs and devisees of owners); and
(ii) makes probate planning more difficult. 85
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*413 In an attempt to remedy the defects of the former probate reform attempts, namely the increasing fractionation of private
individual land interests and the difficulty of sorting through the various state probate laws, Congress purports that the AIPRA
will provide:
(4) a uniform Federal probate code [that] would likely (A) reduce the number of fractionated interests in trust or restricted land;
(B) facilitate efforts to provide probate planning assistance and advice and create incentives for owners of trust and restricted
land to engage in estate planning;
(C) facilitate intertribal efforts to produce tribal probate codes in accordance with section 206 of the Indian Land Consolidation
Act (25 U.S.C. 2205); and
(D) provide essential elements of general probate law that are not applicable on the date of enactment of this Act to interests
in trust or restricted land. 86
B. Who Can Receive Indian Property at Death in Trust
1. Immediate Family
The AIPRA provides opportunities for other Indians or the tribe to purchase an individual's interest in trust or restricted land
at probate. 87 Without a valid will, an individual's trust property will pass under the new nationally uniform probate code or
the tribal probate code (if one exists) instead of the surrounding state's probate laws. 88 The trust land will still continue to be
inherited by the decedent's immediate family - first to children, grandchildren, or great grandchildren (or to parents or brothers
and sisters if the decedent has no surviving issue). 89 Without a will, however, these relatives are only entitled to inherit the
property if they either a) meet the definition of “Indian,” b) are the decedent's descendants within two generations of an Indian,
or c) they are already co-owners of the same parcel of land. 90 If no eligible heirs qualify under these provisions, the land
will pass *414 to the governing tribe where the land is located. 91 The AIPRA amends the definition of “Indian” to include
a person who:
1) is a member of an Indian tribe, or 2) is eligible to become a member of an Indian tribe,or 3) was an owner of
an interest in trust or restricted land on October 27, 2004, or 4) meets the definition of “Indian” under the IRA,
or 5) in California, any person as in 1, 2, 3, and 4, or who owns trust or restricted land in California. 92
2. Spouse
If a decedent leaves a surviving spouse and “other eligible heirs” under the statutory definition, the decedent's surviving spouse
will inherit one-third of any money in the decedent's Individual Indian Money (IIM) 93 account at the time of death, and all
of the money produced from the decedent's interest in trust or restricted land during the spouse's lifetime. 94 The decedent's
other eligible heirs will receive the remaining two-thirds of any money in the decedent's IIM account at the time of death and
the remaining ownership interest in the trust or restricted land. 95 The surviving spouse also enjoys the right to “continue to
live in a family home located on the allotted land.” 96 If the decedent leaves a surviving spouse but no other surviving eligible
heirs, then the widow(er) will inherit the IIM account, and during the spouse's lifetime, the money produced from the decedent's
portion of the land interest. 97
C. Less than 5% Rule
If a deceased Indian landowner fails to write a will, and no applicable Indian tribal probate code trumps the AIPRA, the federal
provision limits the inheritance of any ownership interest totaling less than 5% of the whole interest to the decedent's oldest
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eligible child, then the oldest eligible grandchild, or the oldest eligible great-grandchild. 98 The spouse obtains a life *415
estate and still retains the right to live in the family home on the fractionated parcel during his or her lifetime, but then the
AIPRA takes effect upon the spouse's death. 99
Additionally, and more importantly, the DOI may purchase interests in land that are less than 5% of the total interest, for fair
market value, during the probate proceeding without the consent of the heirs. 100 However, the DOI may only exercise this
right if no valid will exists. 101
D. The Purchase Option at Probate
Certain people, including the decedent's heirs, other co-owners of the land held in trust, and the tribe where the land is located,
may purchase the decedent's interest in the parcel, but the purchase price must equal to or exceed the fair market value. 102
“[To] reduce the number of small, fractionated interests in Indian lands[,] [t]he Act . . . provid[es] individuals and tribes with
more opportunities to consolidate fractionated interests and by removing some restrictions on what tribes and individuals can
do with their lands.” 103 The decedent's heirs would receive the money paid for the decedent's interest in the parcel instead of
a share of the decedent's interest in the parcel. 104 If the decedent's heirs' entitlements constitute greater than or equal to 5% of
the total interest in the parcel, or if they live on the parcel, the heirs' consent to the purchase is required. 105
V. Effects of the AIPRA on Indian Probate Reform
A. Benefits of AIPRA
The AIPRA admittedly reduces fractionation, thereby increasing the economic viability of the remaining properties, and
decreasing the applicable laws from thirty-three different state probate codes to one, national, uniform code. It also allows tribes
to override its provisions by drafting a preemptory tribal probate code and enables individual Native American landowners to
retain some control over their land by drafting a legal will. It still fails, *416 however, to address and remedy all of the relevant
concerns surrounding Native American probate reform.
B. Unresolved Problems of AIPRA
Attentive members of the Native American community, concerned about the AIPRA's shortcomings, warned tribes about these
issues and advised tribal leaders to write and enact tribal probate codes as soon as possible. 106 They warned that although
the AIPRA terminates fractionation, it creates a host of additional problems that fail to account for various tribal customs and
beliefs and could infringe on tribal sovereignty. 107 “‘The law looks good in black and white, but when people are involved it
changes,”’ commented Marcel Greenia, tribal judge of the Winnebago Tribe of Nebraska. 108 Additionally the AIPRA “treats
all American Indians the same: one size fits all, so to speak,” and fails to recognize the numerous differences even among
various tribes. 109 “‘I am always in awe of how laws are put upon us without our consultation. On the Blackfeet Reservation
we lose land to non-members and to members who have no relationship with the family,”’ commented William Talks About,
tribal council representative and traditional leader for the Blackfeet Tribe. 110
1. Traditional Native American Customs, Mores, and Beliefs
The AIPRA, although truly alleviating some of the consequences of fractionation by encouraging land consolidation and
restoring some economic viability to the land, fails to account for specific Native American cultural customs, mores, and beliefs,
sometimes forcing Indians to actually violate their religious beliefs or abandon their traditional customs altogether to secure
protection under the AIPRA. Sometimes, the AIPRA fails to address particular cultural distinctions that make the Act difficult
to understand and apply without completely surrendering native customs.
a) Inapplicable Language Translations
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Some Native languages do not have equivalent translations for many of the familial titles and relationships addressed in the
AIPRA, which make both the understanding and applicability of the AIPRA to these tribes difficult and cumbersome. For
example, the Assiniboine language has no equivalent *417 translation for the words, “nephew, niece, uncle, or aunt” because
the cultural tradition treats an individual's parents' sisters as additional mothers. 111 In other words, a child's mothers include
not only his own biological mother but also all of the sisters of both his mother and his father. As a result, the specific language
of the AIPRA addressing the rights of descent for first-, second-, and third-degree family members neither translates into the
Assiniboine language nor applies to their family hierarchies. 112
b) Adoptions and Extended Families
The traditional customs of many tribal cultures include the adoption of children, an important historical practice not
officially recognized by the AIPRA. 113 Often, grandparents raise their grandchildren as their own, creating significant family
relationships that the AIPRA may not acknowledge, which could result in the disinheritance of any trust lands owned by the
grandparents upon their death. 114
c) Definition of “Indian” and Tribal Marriage Customs
The AIPRA includes a particular definition of the word, “Indian,” which does not always account for Native customs involving
intermarriage among various tribes and with non-Indians, thereby potentially disinheriting legitimate legal and customary
spouses who would otherwise be entitled to receive the land. For example, the Stockbridge-Munsee culture in Wisconsin
recognizes as an “Indian” any person who is married to or lives with a tribal member and who resides on the reservation. 115
The AIPRA disrespects this tribal custom in that it would not allow the transfer of the tribal member's land to such a person. 116
d) Cultural Beliefs Precluding the Writing of Wills
The best precaution individual Native American landowners can take is to write valid, legal wills, specifically detailing the
desired distributions of their estates. As simple as it seems, this advice becomes problematic for many Native American peoples.
Some Native American cultures discourage or even prohibit the writing of wills. The Omaha Tribe, for instance, believes that “a
*418 person invites death when dealing with such matters as wills.” 117 Additionally, even Indians not religiously opposed to
the creation of wills, especially poorer Native American families living on reservations or trust lands, do not have the economic
resources or access to legal advice, especially since the Bureau of Indian Affairs (BIA) will no longer assist in the drafting
or storing of wills. 118
If an individual Indian chooses to draft a will, he or she should familiarize himself with the AIPRA's list of qualifying devisees
and presumptive rules of interpretation and construction. The AIPRA allows devisement of trust and restricted land to “(i) any
lineal descendant of the testator; (ii) any person who owns a preexisting individual trust or restricted interest in the same parcel
of land; (iii) the Indian tribe with jurisdiction over the interest in land; or (iv) any Indian.” 119 The lands must retain their trust
or restricted status. 120 The AIPRA states that wills devising both trust and restricted land and trust personalty will be construed
as applying “to all trust and restricted land and trust personalty which the testator owned at his death, including any such land
or personalty acquired after the execution of his will.” 121 When devising “trust or restricted interests in the same parcel of land
to more than 1 person,” the AIPRA establishes a presumption in favor of joint tenancy with right of survivorship, 122 “in the
absence of clear and express language” specifying the decedent's intent that devisees hold title as tenants in common. 123
e) Sacred Sites
The AIPRA does not distinguish among sacred and secular lands. 124 Because of the significance of the land to Native American
culture and *419 religion, tribal leaders may prefer different disbursements of certain lands than that which the AIPRA
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would provide. 125 Because of this important cultural issue, tribal probate codes should include provisions addressing these
concerns. 126
2. Tax Consequences
Although the AIPRA prefers that Indian landowners transfer trust land only to heirs who are current members of or are eligible
for membership of a federally recognized tribe, it permits the transfer of land to an unqualified heir if, and only if, the land
is first taken out of trust and turned into fee land. 127 Converting the land from trust land to fee land places it on the tax rolls
which creates more problems for the decedent's family if the heirs do not have sufficient funds to pay the taxes. 128 If the heirs
cannot afford to pay the requisite taxes of the newly classified fee land, then the government will likely sell the land for taxes
to anyone, and the family again loses the land. 129
3. Unequal Control over Property
Because many Native American lands are still held in trust, and the AIPRA seeks to preserve their trust status, Indian landowners
still do not enjoy the same amount of flexibility or control over their own property at death as non-Indians do. Unlike a nonIndian holding fee title to land who can disburse his property to whomever he chooses, Native American landowners do not
enjoy this same opportunity and are restricted by the AIPRA's strict requirements and definitions and can only transfer their
property, even via a valid will, to their descendants, a preexisting owner in the same parcel of land, the tribe with jurisdiction
over the land, or another Indian. 130
VI. Preventive Measures - How Tribes and Individual Indian Landowners Can Protect Themselves After the AIPRA
As mentioned above, the AIPRA, like most federal legislation, not only results in some additional benefits to the Native
American community but leaves some problems unresolved. Fortunately, both Native American tribes *420 and individual
landowners can take affirmative measures to protect their property interests subject to the AIPRA.
A. Tribal Probate Codes
Drafting and enacting a tribal probate code serves as perhaps the most important defensive weapon Native American tribes
can use to protect the property interests of their tribes and their individual members. The AIPRA permits tribes to adopt a
tribal probate code that would preempt any undesirable provision of the uniform probate code, and law firms specializing
in Native American law strongly encourage their tribal clients to consider adopting such codes so that they, instead of the
federal government, may decide the fate of their members' property interests upon death. 131 The federal government conducted
training seminars to educate tribal leaders and their attorneys about the ramifications of the AIPRA before it became effective
in June. 132 Because of the potential to lose even more Native American-owned land and the holes in the AIPRA failing to
address the various cultural and traditional concerns addressed above, Indian tribal leaders should take immediate affirmative
precautionary steps to draft and enact tribal probate codes so that they may preempt any of these federal provisions that their
members find undesirable. Native American law attorneys have advised their tribal clients to write specific probate codes that
reflect their culture and customary practices. 133 Tribes should be specific, precise, and perfectly clear about what they wish to
accomplish in these codes so that future judges will not have to guess their intent behind ambiguous provisions. 134 These codes
should specifically outline the familial hierarchy recognized in each tribe and include definitions and provisions protecting
sacred sites. 135
Although an intimidating feat, tribes should tackle this challenge in order to protect their members' future land interests. Tribes
in the Midwest and Great Plains, including both the Sisseton-Wahpeton in South Dakota and the Ho-Chunk in Wisconsin, have
already risen to the task and written tribal probate codes. 136
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THE AMERICAN INDIAN PROBATE REFORM ACT OF 2004: THE DEATH..., 30 Am. Indian L. Rev. 401
*421 B. Individual Wills
Individual landowners may retain control over their property by writing and validating a legal will, outlining their desires for
the distribution of their property.
The new law protects your rights as a property owner to transfer your property by will. By writing a will, you can designate
how your trust land will be transferred in trust to any Indian person or to your descendants even if they are not tribal members.
You can control how your trust property is passed by creating an estate plan, such as a will or deed. 137
By writing a will, an individual Native American landowner can stipulate that his land “be transferred in trust to any Indian
person, the tribe that has jurisdiction [over the land in question], or any Indian co-owners. [An Indian landowner] can also
transfer land in trust to any of [his] descendants (children, grandchildren, great grandchildren, and great-great grandchildren)
even if they are not Indian.” 138
Conclusion
Fractionation has become a serious problem as a result of the allotment process instigated by the Dawes Act and subsequent
legislation that failed to adequately resolve the issues surrounding effective Native American land ownership and probate
reform. The AIPRA, the most recent Congressional attempt, although yet untested, provides hope for significant improvements
in that it will help reduce fractionation, consolidate tribal lands, restore economic viability and flexibility to tribal land
ownership, and provide a single, uniform law to understand and apply to Native American probate proceedings.
Like its predecessors, however, the AIPRA has still neglected to address all of the many complicated issues surrounding Native
American land ownership and transferability. The AIPRA fails to recognize and give credence to many traditional cultural
and religious practices, beliefs, and customs, including the complicated intermingling of extended family; the recognition,
preservation, and admiration for sacred sites; the intermarriages among various tribes and *422 with non-Indian members;
and the language barriers arising from inadequate translations for various terms and provisions included in the AIPRA.
Despite its shortcomings, the AIPRA provides tribes and their members specific instructions on how to protect their land
interests. Tribal leaders need to act immediately to organize their leadership, meet with their attorneys, and draft and execute
detailed tribal probate codes that outline the specific needs, interests, and concerns of their individual tribes, including the
various traditional, religious, and cultural practices that may differ from other tribes. The tribal probate codes should be as
specific and detailed as possible to avoid creating ambiguities and leaving room for future judicial misinterpretation. Tribal
leaders should inform their members about the effects of the AIPRA and educate them on how to seek and obtain legal counsel
regarding their legal rights and the requirements for writing and validating legal wills, if they choose to do so.
Prompt reaction and detailed preparation are the keys to success. Because the AIPRA went into effect on June 20, 2006, tribal
leaders and members should act NOW to properly prepare for the changes it brings about and to petition Congress for further
legislative changes, if necessary.
Footnotes
a1
Second-year student, University of Oklahoma College of Law.
1
125 S. Ct. 2655, 2666 (2005) (upholding a city's authority to take and transfer private property from one private landowner to another
by broadening further the definition of “public use” to include economic development as a sufficient public purpose).
2
See, e.g., Terry Pristin, Eminent Domain Revisited: A Minnesota Case, N.Y. Times, Oct. 5,
2005, available at http:// www.nytimes.com/2005/10/05/realestate/05domain.html? ei=5070&en=815df89e86832f40&
%20ex=1139115600&pagewanted=print (“Few recent Supreme Court opinions have aroused as much public outrage as Kelo v.
City of New London, . . . the June ruling that reaffirmed the use of eminent domain to promote economic development.”); News
Release, Inst. for Justice, With Governor's Signature Today, Alabama Will Become First State to Curb Eminent Domain Abuse After
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Kelo (Aug. 3, 2005), available at http://www.ij.org/private_ property/castle/8_3_05pr.html (quoting Institute for Justice President
and General Counsel Chip Mellor, “Legislators are responding to the widespread and nearly unanimous public outrage over the
Supreme Court's Kelo ruling.”); News Release, Am. Farm Bureau, FB Survey: Americans Oppose Eminent Domain (Jan. 9, 2006),
available at http://www.fb.org/news/nr/nr2006/nr0109a.html?print=y (quoting American Farm Bureau President, Bob Stallman,
“The protection of private property is a key thread in the fabric that makes up bedrock American values . . . .”).
3
See, e.g., Shu Bartholomew, The Real Story of the Kelo Property Grabs (Oct. 13, 2005), http://www.ccfj.net/USSupremeseiz2.html
(“To be sure, the U.S. Supreme Court decision in the recent Kelo v. New London case has shocked and outraged Americans.”).
4
See generally Indian General Allotment Act, ch. 119, 24 Stat. 388 (1887) (removing and privatizing collective tribal control over land
by dividing it into fragmented, individually owned parcels); Indian Removal Act of 1830, 21 ch. 148, 4 Stat. 411 (1830) (removing
Indians from their tribal homelands to lands west of the Mississippi); and the “Marshall Trilogy,” Worcester v. Georgia., 31 U.S.
(6 Pet.) 515 (1832) (recognizing the tribal right of self-governance but reiterating that treaties placed tribes under the United States'
protection); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (denominating Indian tribes as “domestic dependent nations,”
thus proscribing their status as foreign nations and denying the Cherokee Nation's request for an injunction to prevent the state
of Georgia from enforcing its laws within tribal borders); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823) (introducing the
Discovery Doctrine, which claims that oncecovered” lands in the new world, they held valid title as against all other Europeans,
subject only to a tribal right of occupancy, which the European sovereigns could extinguish by purchase or conquest, and invalidating
a tribal grant of land to private individuals).
5
See, e.g., Indian Land Consolidation Act, 25 U.S.C. § 2201 (2000) (providing for the consolidation of individual land interests).
6
Id.
7
Pub. L. No. 108-374, 118 Stat. 1773 (2004).
8
See id. § 8(b), 118 Stat. at 1810 (determining the AIPRA's effective date as “the date that is 1 year after the date on which the
Secretary [of the Department of the Interior] makes the certification required under subsection (a)(4)”); Secretary Gale Norton's
Observations, in U.S. Dep't of the Interior, Status Report to the Court No. 22, at 4, 4 (2005), available at http:// www.doi.gov/ost/
trustdocuments/CourtDocs/QuarterlyReports/Quarterly_22.pdf (confirming June 20, 2006 as the effective date by Secretary Gale
Norton and reporting that on June 20, 2005 she “certified that the notice provisions had been met through mailings and publication.
As a result, certain provisions of the [American Indian Probate Reform] Act will become effective in one year.”); David Melmer,
New Probate Law Will Create New Problems, Indian Country Today, Dec. 16, 2005, available at http://www.indiancountry.com/
content.cfm? id=1096412129.
9
21 U.S. (8 Wheat.) 543 (1823).
10
Id. at 588.
11
Katheleen R. Guzman, Give or Take an Acre: Property Norms and the Indian Law Consolidation Act, 85 Iowa L. Rev. 595, 602-03
(2000).
12
Envtl. Sec. Office, U.S. Dep't of Def., Native American Briefing at ch. II(A)(1)(b) (Jan. 23, 1998) (“The Formative Years
(1789-1871): Removal”), available at https:// www.denix.osd.mil/denix/Public/Native/Reports/Briefing/najan.html [hereinafter
Native American Briefing].
13
30 U.S. (5 Pet.) 1 (1831).
14
Id. at 17.
15
Native American Briefing, supra note 12, at ch. II(A)(1)(b) (“The Formative Years (1789-1871): Treaties with Indian Tribes”).
16
31 U.S. (6 Pet.) 515 (1832).
17
Id. at 581-82.
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18
Native American Briefing, supra note 12, at ch. II(A)(3)(a) ( “Origins of the Trust Relationship: Early Recognition of the Trust”).
19
Id.
20
Ch. 119, 24 Stat. 388 (1887).
21
Guzman, supra note 11, at 604.
22
Judith V. Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1, 7 (1995).
23
Id.
24
Id. at 9.
25
Guzman, supra note 11, at 597.
26
Royster, supra note 22, at 9.
27
Id.
28
Id.
29
Id.
30
Guzman, supra note 11, at 604.
31
Id.
32
Jessica A. Shoemaker, Comment, Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem,
2003 Wis. L. Rev. 729, 738.
33
Royster, supra note 22, at 9.
34
Shoemaker, supra note 32, at 738.
35
Id.
36
Native American Briefing, supra note 12, at ch. II(A)(3)(c) (“Modern Consequences of the Trust Responsibility: Power of
Congress”).
37
187 U.S. 553 (1903).
38
Id. at 565.
39
430 U.S. 73 (1977).
40
448 U.S. 371 (1980).
41
Native American Briefing, supra note 12, at ch. II(A)(3)(c) (“Modern Consequences of the Trust Responsibility: Power of
Congress”).
42
481 U.S. 704 (1987).
43
Id. at 717 (referencing U.S. Const. amend. V) (“nor shall private property be taken for public use, without just compensation”).
44
519 U.S. 234 (1997).
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THE AMERICAN INDIAN PROBATE REFORM ACT OF 2004: THE DEATH..., 30 Am. Indian L. Rev. 401
45
Id. at 237.
46
An “Indian Reservation” is merely land that has been set aside for a tribe or tribes. Native American Briefing, supra note 12, at
ch. II(B)(3)(a).
47
Id.
48
18 U.S.C. § 1151 (2000).
49
Black's Law Dictionary defines “fee,” also known as “fee simple” or “estate in fee simple,” as “an interest in land that, being the
broadest property interest allowed by law, endures until the current holder dies without heirs.” Black's Law Dictionary 648 (8th
ed. 2004).
50
Native American Briefing, supra note 12, at ch. II(B)(3)(b)(iii) ( “Types of Lands in Indian Country Subject to Tribal Jurisdiction:
Allotments”).
51
25 C.F.R. § 15.2 (2005).
52
Native American Briefing, supra note 12, at ch. II(B)(3)(b)(iv) ( “Types of Lands in Indian Country Subject to Tribal Jurisdiction:
Allotments”).
53
24 Stat. 388 (1887).
54
Guzman, supra note 11, at 604.
55
25 C.F.R. § 15.2 (2005).
56
Shoemaker, supra note 32, at 738.
57
Id.
58
Id.
59
Id.
60
Id. at 739.
61
Id.
62
Id. at 749.
63
Id.
64
Id.
65
Native American Briefing, supra note 12, at ch. II(A)(1)(d) (“Indian Reorganization (1928-1945): The Meriam Report”).
66
25 U.S.C. 479 (2000).
67
Native American Briefing, supra note 12, at ch. II(A)(1)(d) (“Indian Reorganization (1928-1945): The Indian Reorganization Act
of 1934 (IRA)”).
68
Id.
69
Id.
70
25 U.S.C.A. § 2201 (West 2005).
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THE AMERICAN INDIAN PROBATE REFORM ACT OF 2004: THE DEATH..., 30 Am. Indian L. Rev. 401
71
187 U.S. 553, 564 (1903).
72
519 U.S. 234 (1997).
73
S. 550, 108th Cong. (2003), available at http:// theorator.com/bills108/s550.html.
74
Id.
75
Pub. L. No. 108-374, 118 Stat. 1773 (2004).
76
See id. (“To amend the Indian Land Consolidation Act to improve provisions relating to probate of trust and restricted land, and
for other purposes. Oct. 27, 2004.”).
77
U.S. Dep't of the Interior, Issues of Interest: American Indian Probate Reform Act, http://www.doi.gov/issues/
indianprobatereform.html (last visited Apr. 19, 2006) [hereinafter Issues of Interest].
78
Id.
79
American Indian Probate Reform Act of 2004, Pub. L. No. 108-374, § 6(b)(3), 118 Stat. 1773, 1804-05 (2004) (new subsections (6)
(A)-(B)). The subsections define “highly fractionated land” as a parcel of land that the Secretary finds has:
50 or more but less than 100 co-owners of undivided trust or restricted interests, and no 1 of such co-owners holds a total undivided
trust or restricted interest in the parcel that is greater than 10 percent of the entire undivided ownership of the parcel; or 100 or more
co-owners of undivided trust or restricted interests).
Id.
80
Issues of Interest, supra note 77.
81
Id.
82
Jerry Reynolds, Bush Brings Limited Reform to Trust Land Probate Process, Indian Country Today, Nov. 5, 2004, available at http://
www.indiancountry.com/content.cfm?id=1096409814&print=yes. Bureau of Indian Affairs, U.S. Dep't of Interior, Understanding
the American
83
Indian Probate Reform Act of 2004 (2004), available at http:// www.tribal-institute.org/lists/understanding.htm [hereinafter
Understanding the AIPRA].
84
American Indian Probate Reform Act, Pub. L. No. 108-374, 118 Stat. 1773 (2004).
85
Id. § 2(3)(A)-(D), 118 Stat. at 1773-74.
86
Id.
87
Understanding the AIPRA, supra note 83.
88
Id.
89
Id.
90
Id.
91
Id.
92
Id.
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THE AMERICAN INDIAN PROBATE REFORM ACT OF 2004: THE DEATH..., 30 Am. Indian L. Rev. 401
93
See American Indian Probate Reform Act, Pub. L. No. 108-374, § 3(b), 118 Stat. 1773, 1779 (2004) (new subsection (3)(A))
(defining “trust personalty” to include “all funds and securities of any kind which are held trust for an individual Indian money
account or otherwise supervised by the Secretary.”).
94
Id. 3(a) (new subsection (2)(A)).
95
Understanding the AIPRA, supra note 83.
96
Id.
97
Id.
98
Id.
99
Id.
100
Id.
101
Id.
102
Id.
103
Id.
104
Id.
105
Id.
106
Melmer, supra note 8.
107
Id.
108
Id.
109
Id.
110
Id.
111
Id.
112
Id.
113
Id.
114
Id.
115
Id.
116
Id.
117
Id.
118
Id.; David Melmer, Congress and Tribes at Odds Over Trust and Land, Indian Country Today, Mar. 1, 2006, available at http://
www.indiancountry.com/content.cfm?id=1096412749.
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THE AMERICAN INDIAN PROBATE REFORM ACT OF 2004: THE DEATH..., 30 Am. Indian L. Rev. 401
119
American Indian Probate Reform Act of 2004, Pub. L. No. 108-374, § 3(b), 118 Stat. 1773, 1778 (2004) (new subsections (1)(A)
(i)-(iv)).
120
Id.
121
Id. § 3(d), 118 Stat. at 1780 (new subsection (i)(1)).
122
A joint tenancy is “a tenancy with two or more co-owners who take identical interests simultaneously by the same instrument and
with the same right of possession . . . [and] differs from a tenancy in common because each joint tenant has a right of survivorship
to the other's share.” Black's Law Dictionary 698 (2d pocket ed. 1996). A “right of survivorship” is “a joint tenant's right to succeed
to the whole estate upon the death of the other joint tenant.” Black's Law Dictionary 1351 (8th Ed. 2004).
123
American Indian Probate Reform Act § 3(b), 118 Stat. at 1780 (new subsection (4)(B)(c)(1)).
124
Melmer, supra note 8.
125
Id.
126
Id.
127
Id.
128
Id.
129
Id.
130
American Indian Probate Reform Act, Pub. L. No. 108-374, § 3(b), 118 Stat. 1773, 1778 (2004) (new subsection (1)(A)(i)-(iv)).
131
Congress Amends American Indian Probate Reform Act: Tribes Advised to Review Tribal Probate Laws, Indian Law Alert, Oct.
2004, available at http://indianlaw.vonbriesen.com/resources/docs/indian/alert_american_indian_ probate_reform_act.pdf.
132
Melmer, supra note 8.
133
Id.
134
Id.
135
Id.
136
Id.; cf. Lummi Nation Code of Laws, Probate Code tit. 35 §§ 35.01-35.14 (2005) available at http:// www.indianwills.org/
Documents/LummiTitle%2035final%C2090805%20Probate.pdf (an example of an approved tribal code).
137
Understanding the AIPRA, supra note 83.
138
Id.
End of Document
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© 2011 Thomson Reuters. No claim to original U.S. Government Works.
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THE AMERICAN INDIAN PROBATE REFORM ACT OF 200..., 30 Am. Indian L. Rev. 401
Citing References (6)
Title
Type
Depth
2010
Law Review
—
2. BANISHMENT AS CULTURAL JUSTICE IN
2007
CONTEMPORARY TRIBAL LEGAL SYSTEMS, 37 N.M. L. Rev.
85, 145
,
Law Review
—
Law Review
—
2010
Law Review
—
5. HOW PROPERTY CAN CREATE, MAINTAIN, OR DESTROY 2009
COMMUNITY, 10 Theoretical Inquiries L. 43, 76
,
Law Review
—
Law Review
—
1. A MIGHTY PULVERIZING ENGINE? THE AMERICAN
INDIAN PROBATE REFORM ACT AND THE STRUGGLE FOR
GROUP RIGHTS, 2 Est. Plan. & Community Prop. L.J. 463,
483+
,
Date
[T]he time has arrived when we should definitely make up our
minds to recognize the Indian as an individual and not as a
member of a tribe. The General Allotment Act is a mighty...
One of our chiefs killed a man. The people talked against him.
“We will take him out of his place,” they said. That is what they
wanted to do. But the Indian law stopped it. Even...
3. KEEPING CURRENT-PROBATE, 21-APR Prob. & Prop. 24, 2007
24+
,
Keeping Current—Probate offers a look at selected recent cases,
rulings and regulations, literature, and legislation. The editors of
Probate & Property welcome suggestions and...
4. EQUAL STANDING WITH STATES: TRIBAL
SOVEREIGNTY AND STANDING AFTER MASSACHUSETTS
V. EPA, 29 Stan. Envtl. L.J. 130, 180
,
Introduction# 130 I. Massachusetts v. EPA# 133 A. Standing
Background# 134 B. The Litigation Itself# 137
1.
Background# 138
2. Supreme Court# 139 C. Sovereignty
and...
Property law plays a crucial role in the ability of groups, especially
ones composed of geographically-adjacent members, to establish
and maintain significant forms of “community”...
6. THE GLOBAL LAW OF THE LAND, 81 U. Colo. L. Rev. 425, 2010
471
,
Are we witnessing the gradual universality of national land laws,
which have traditionally been considered to be the paradigm of
legal idiosyncrasy by virtue of their reflection of...
© 2011 Thomson Reuters. No claim to original U.S. Government Works.
17