DRAFTING WILLS inINDIAN COUNTRY

Mary E. GussIPLP Staff Attorney

Historical US Indian Policies

Treaty Making - Ended in 1871 Removal – Particularly after Louisiana

Purchase Allotment and Assimilation – 1887 Dawes Act Indian Reorganization Act – Passed in 1934 Termination – 1945 to 1961 Self Determination – 1961 to present

Dawes orGeneral Allotment Act

Passed by US Congress in 1887Stated purposes: eradicate Indian tribalism and povertyTransfer parcels of land in fee ownership to individual Indians after holding in trust for 25 years“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 lands

The Act was a failure for other reasons as well

What happened to the lands when an owner died without leaving a will?

Property passed according to state or terri-torial probate laws

Fractionation• Heirs receive undivided fractions of the

allotment; many are tiny

• Need majority approval to do anything with the property

• 2011 report by DOI - 4.1 million fractionated interests in Indian Country, reflecting owner-ship of 99,000 fractionated tracts

• NCAI – 2006 report says 120,000 tracts with over three million ownership interests

Allotted Lands in Arizona

TribeNumber of acresSalt River Pima – Maricopa 25,000+Gila River Indian Community 100,000-Tohono O’Odham, San Xavier 40,000+-Colorado River Indian Tribes 8,400+-San Carlos Apache 1,000-Yavapai-Apache Nation 100-

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 Indians++ 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

Intestacy

• 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 grandchildren2nd – eligible parents or siblings 3rd – tribe with jurisdiction4th – Co-ownersLast – if none of the above, then fed gov, to

sell

Eligibility

Who is an eligible heir?Indian, orA lineal descendant within two degrees of

consanguinity of an Indian, orAn owner of a trust assets or restricted

interest in a parcel of land pre-2004Then - 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

California]

With a Will

5% rule goes awayStill need to leave property to eligible heir (trust)

Want to leave property in fee?Non-IRA tribes onlyAnd only if heir does not fit definition of

eligible heirBut tribe may step in and purchase

Ways to stop fractionation VIA WILL

• Leave all interests to one individual• Leave specific parcels to specific heirs• Leave interests to joint tenants with the right

of survivorship

OTHER OPTION(S)

• 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 testatorTwo witnesses (who are taking nothing)Testator over 18 and of sound mindKnow what property they own andKnow 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

InIndividual

Indian Money

Money

(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 heirsJoint tenants with right of survivorshipTenants in common

Disposing of Trust Property, con’t

Can leave trust interests to:any lineal descendant orany person who owns a preexisting

un-divided trust/restricted interest in the parcel or

the Indian tribe with jurisdiction orany 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

Homes

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 allottmentBequest of trust land includes “permanent improve-

ments attached” to the landBest to mention the home specifically

AssignmentAssignment

Trust Personal Property

Called trust personalty in AIPRA; defined as:…all funds and securities of any kindwhich are held in trust in an IIM

accountor otherwise supervised by the SOI

May be devised to ANY person or entityIf to eligible heir, BIA continues to

manageIf not, funds are disbursed outright

Personal Property

Arizona allows for a separate writing dis-posing of personal property; can include that language

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 propertyIf it’s off-reservation, state law

controlsOn reservation, will be tribal law

Funeral requests?

Residuary Clauses

To cover property acquired after the will was written

Recommend one for trust and one for non-trust 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 death2. Testator and spouse have a child3. Spouse has made substantial payments or

4. Spouse has binding obligation to make payments [25 USC Sec. 2206(j)(2)(iii)]

SIGNING

Affidavit to Accompany Indian Will Self-proving 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 heirIf the land is non-IRA land andIf the tribe has a constitution or

bylaws permitting such a transfer

TRIBAL PROBATE CODES

Secretary of Interior-approved tribal probate codes can override many provisions of AIPRA

To date only one tribe (Umatilla) has such a codeWorks to prevent transfers of trust lands to non

tribal members; found at: http://www.umatilla.nsn.us/InheritanceCode.pdf

Pre-AIPRA tribal probate codes will still control inheritance of non-trust property on the reserva-tion

Gift Deeds

Another way to stop fractionationEach BIA realty office has different documents; get the forms from the appropriate oneBIA issues the deed based on info provided

Once the property is deeded it cannot be reclaimed

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: www.law.seattleu.edu/centers-and-institutes/center-for-indian-law-and-policy/indian-institute

• Montana University: http:www.montana.edu/indianland/factsheets.html

Helpful web sites, con’t

• http://law.wisc.edu/glilc/documents/estate_planning_handbook_final.pdf from the Uni-versity of Wisconsin Great Lakes Indian Law Center