A new probate reform act designed to eliminate future
fractionation of land is not an end-all and be-all: while it stops fractionation,
it creates additional problems that tribes argue will infringe on their
The American Indian Probate Reform Act of 2004 goes into effect on June 20,
2006. Tribes need to prepare codes and learn what is involved in the act
before the effective date, or the tribes and tribal members may lose even more
The federal government is conducting learning sessions to pass along
information that will help tribes and attorneys understand the act’s conditions.
AIPRA, as it is called, takes precedent over state probate laws, to which many
tribes were subjected or which they chose to use in the past. AIPRA does impose
some restrictions for passing land or property to heirs that may not always
be acceptable to tribal culture and mores, and may not always be in the best
interest of the family.
AIPRA requires that any land held in trust can only be awarded to heirs who
are members of or are eligible for membership in a federally recognized tribe.
If the heir does not qualify for membership the land can be transferred, but
must be taken out of trust and turned into fee land, thereby putting it on
the tax rolls. Many times the heirs cannot pay the taxes, and so the land is
sold for taxes to anyone.
Tribal leaders say AIPRA does not address specific cultures in Indian
country. For example, the Assiniboine language has no word for nephew, niece, uncle
or aunt because in that culture, a person’s mother’s sisters are that
person’s mothers, and likewise on the father’s side. Therefore the specific
language of first-, second- and third-degree descendancy does not always apply in
the Assiniboine case.
Adopted children are also an issue. In many tribal cultures, children are
adopted according to historic customs. Some children are raised by their
grandparents, but as that may not be recognized by AIPRA, the land or property to
be inherited in trust may be disallowed.
In the Stockbridge-Munsee culture in Wisconsin, a person who lives with or
is married to a tribal member and lives on the reservation is understood to be
an Indian. AIPRA has a specific definition of ”Indian.”
Tribes are advised to write specific probate codes that reflect the culture
and also to be precise about what it is the tribe wants to accomplish. A tribe
can spell out in the code what it hopes to accomplish. It can be broader and
incorporate all land within or on the outside of the boundaries but owned by
tribal members, or deal with only trust land.
What the tribe must do is keep within the guidelines of AIPRA, said Marcel
Greenia, tribal judge of the Winnebago Tribe of Nebraska.
”The law looks good in black and white, but when people are involved it
changes,” Greenia said.
Probate in Indian country is a much more complicated legal tangle than in
the non-Indian community; wills, which are recommended to solve probate issues,
become more complicated and involved as well. Trust land, fee land, life
estates, tribal law, federal law and state law all play a roll.
AIPRA addresses non-Indian spouses who can inherit only one-third of the
revenue generated by the land, but not the land itself. The spouse can be
awarded a life-estate and live on the property. Other descendants, possibly
children, will inherit two-thirds of the income and all the property rights.
If a person owns only 10 percent of an original allotment and has three
children that inherit the property, those three children would own less than five
percent. That means the children’s inheritance can be purchased at probate
without their consent. Usually tribes buy the land, but other people can also
purchase the property.
The result is that if a person owns only 10 percent of an allotment they
should not have more than two children.
The 5 percent rule is designed to eliminate the large numbers of people,
sometimes near 1,000, that own a small parcel of land, which complicates the
administration and reconciliation of Individual Indian Money accounts.
Another complaint brought up at the information meeting was the fact that
AIPRA treats all American Indians the same: one size fits all, so to speak.
”There are serious problems with AIPRA, Greenia said.
Having said that he added that if tribes want to maintain sovereignty and
allow tribal members to transfer land to spouses and children, they will have to
work within the constraints of AIPRA to write tribal probate codes.
Creation of a specific tribal probate code is imperative
A tribal code will trump AIPRA, the legal advisers said. So when a tribe
writes a probate code the authors must be specific about the focus of the code
so that judges will not have to guess at the code’s intent. The focus may be on
all property, land and personal; it may be just on trust land, or a
combination of many things; but it must be specific, Winnebago Tribal Judge Marcel
The Oglala Sioux Tribe is writing a second probate code that includes only
trust land. The first probate code was sent to the secretary of the Interior
Department for approval in 2002 and after the obligatory 180-day waiting period
passed with no response, in accordance to regulations, the tribe assumed the
code was enacted. A subsequent legal issue discovered the code was not in
force because the secretary neglected to certify the Indian Land Consolidation
Act of 2000.
The code must also contain details about what is important to the culture.
In accordance with their culture, families will make a distribution of personal
items after the death of the decedent; however, those items are actually
part of the probate and shouldn’t be given away before probate is complete. A
tribal code can include that part of the culture and remove personal items from
The tribal code can also deal with small estates, and either acquire the
land for the tribe with life-estate privileges given to the occupants or make
other arrangements with the family.
The Blackfeet Tribe has the right of first refusal for land, said William
Talks About, tribal council representative and traditional leader. But, he
added, the tribe is poor and can’t afford to pay what the non-Indian buyer is
willing to pay for the land. Therefore, the land is turned over to outsiders and
more land is lost to the tribe.
A question about who is or is not an American Indian is up to the tribes to
decide, according to the Supreme Court. But AIPRA specifies that the person
must be an enrolled member of a federally recognized tribe or eligible for
enrollment. The question of what a tribe can do in a probate code to change that
rule puts the tribes in an arguable position, Greenia said.
”I am always in awe of how laws are put upon us without our consultation,”
Talks About said. ”On the Blackfeet Reservation we lose land to non-members
and to members who have no relationship with the family.
”We need to implement traditional law in our probate. We need to listen to
the elders. They know who is entitled to the land.”
Eleanor Baxter, chairman of the Omaha Nation of Nebraska, said many
grandparents were sent letters upon which to place their ”X” and that they received
some money for the land.
”That’s what we knew growing up,” she said. ”We can make our laws
Now, she said, the Omaha Tribe has a lengthy wait for a judge to arrive to
deal with the probate.
She said they are told to make wills, but in the Omaha culture, the belief
is that a person invites death when dealing with such matters as wills.
The Omaha Tribe is in the process of writing a probate code. The Omaha has
clanships, which have different purposes than the tiospayes of the Lakota
culture. Considerations for these aspects of the cultures should be included in
the codes, legal experts said.
Sacred sites should also be made part of the tribal probate code.
many such sites on the Blackfeet Reservation, Talks About said. ”Even tipi
rings are sacred: someone prayed on that site,” he said.
He said that the grandfathers who are buried in the land are still
protecting the land and they must also be protected.
The strong need for extended family to be involved in any tribal probate
code is important. But the question is, can this be protected within the
guidelines of AIPRA? ”Yes,” is the answer given by legal advisers.
Tribes have until June 20, 2006 to decipher AIPRA and thereby come up with
plans that are tribally specific. All parties involved want fractionation to
stop, and that is the goal of AIPRA; and most tribal codes that have been
written have the same goal while protecting the tribe’s interest in the land.
Sisseton-Wahpeton in South Dakota and the Ho-Chunk in Wisconsin are just two
of the tribes in the Midwest and Great Plains that have written probate
codes. Rosebud in South Dakota, the Oglala Sioux, the Winnebago of Nebraska, the
Blackfeet and the tribes at Fort Peck are all in the process of completing
tribal probate codes.