Recent Focus on the American Indian Probate Reform Act

The following article focuses on a hearing that took place earlier this month. The webcast for that hearing can be found here.

A copy of the 38 page American Indian Probate Reform Act can be found here.

From Indian Country Today:

WASHINGTON – Indians are once again telling Congress that a 2004 federal law aimed at solving tribal land fractionation problems caused by the federal government has created problems of its own.

Tribal officials explained to members of the Senate Committee on Indian Affairs at an oversight hearing in early August that the American Indian Probate Reform Act (AIPRA) and the Department of the Interior’s administration of it need better oversight for many reasons, including cultural concerns, tax consequences, and property control issues. These problems have arisen in spite of the law having good intentions, namely to create a uniform federal Indian-focused probate code to help address one of the major problems created by the General Allotment Act of 1887, land fractionation.

The office of Sen. Daniel Akaka, D-Hawaii, chairman of the SCIA, explained land fractionation the following way in a press release: “Under the General Allotment Act, communally-owned tribal lands had been divided into parcels and allotted to individual Indians. As the original allottees died, the Act required the lands to descend in accordance with state inheritance laws, which often provided an equal share of ownership to each of the heirs. When they passed, their interest in the allotment was further divided among the next generation, and so on. Today, an individual plot of allotted land might have up to one thousand owners, and can therefore be put to no beneficial use.”

“Land fractionation is a serious problem in Indian country,” Akaka said. “According to the Department of the Interior, 70 percent of the 10 million acres of land held in trust for individual Indians are fractionated.” That would mean about 7,000,000 acres of land are unable to be utilized in the best way under the current system.

Enter the AIPRA in 2004. Akaka said the law was enacted by well-meaning legislators to “protect the integrity of tribal homelands and restore their potential for economic development.” Since that time it has been amended three times already in attempts to hone its ability to get the job done.

An analysis published the American Indian Law Review in 2006 by Kristina L. McCulley found that the law was having unintended consequences beyond its stated goals. “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,” she wrote. “Sometimes, the AIPRA fails to address particular cultural distinctions that make the Act difficult to understand and apply without completely surrendering native customs.”

Beyond that issue, inapplicable language translations, including non-equivalent translations for many of the familial titles and relationships; adoption issues involving land titles; definition of “Indian” and tribal marriage customs; cultural beliefs that don’t rely on written wills; and sacred site concerns were highlighted in the analysis.

McCulley additionally raised “tax consequences” as problems under AIPRA. “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,” she wrote. “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. 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.”

Finally, McCulley noted “unequal control over property” as being a problem for some under the law: “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 non-Indian 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.”

Many of the above issues were raised in oral and written testimony offered to the Senate committee, with some testifiers suggesting that certain areas have indeed been improved—but all suggesting that more improvements are needed.

John Berrey, chairman of the Quapaw Tribe of Oklahoma, added in new testimony that he would like to see less money spent by the DOI on administrative costs over issues other than direct land consolidation. He said that tribes and the Bureau of Indian Affairs, sans third-party assistance, should be supported to do the most they can under the law.

David Gipp, vice president of the Great Plains region of the National Congress of American Indians, raised several recommendations, including the addition of a strong federal estate planning assistance program for Indians. Through such a program, fractionation could be largely prevented, he said. Re-organization of certain areas of the Interior Department would help with this and other goals, he testified. “The Interior Department needs to really step up the pace to educate our tribal citizenry about those rights that I was talking about and about fractionation,” Gipp said.

Douglas Nash, adjunct professor and director of the Institute for Indian Estate Planning and Probate at the Seattle University School of Law, testified that AIPRA has plenty left to do, noting that there is still much fractionated land in Indian country. While fractionation is still a large problem 92 percent of the wills performed this summer under the project he leads have reduced or avoided fractionation altogether, he said, adding that improved professional estate planning services are still needed in many tribal communities.

Majel Russell, general counsel for the Coalition of Large Tribes, testified that there are provisions of AIPRA that can be improved through legislation, such as calling for the Interior Department to create improved methods for appraising and valuating land. In this way, landowners would have more of an interest to sell, she said. Every Indian probate could be required to have an “attempt to mediate” session via statutory regulations under the law, she added.

Russell said that resource and liability issues impeded full implementation of AIPRA when she served as principal deputy assistant secretary of Indian affairs in 2007.

Sharon Redthunder, acting director of the Indian Land Working Group, said that the law continues to be “complex” and requires intense training for professionals to help Indians benefit from its provisions. She said that statistics indicate that from 2004 to present, progress on reducing fractionation has been slow. She emphasized a need for better counseling from Interior to individual landowners.

Akaka concluded by saying “it is clear” that in order for AIRPRA to work Interior must effectively communicate with tribes and Indians. He said the committee would continue to work to meet the goals of the law.