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. Continue reading

M. Brent Leonhard on Implied Easements on Tribal Lands

M. Brent Leonhard has published “There Are No Implied Easements Over Trust Lands” in the American Indian Law Review.

The abstract:

Those who regularly practice law in Indian Country have no doubt encountered the myriad of issues surrounding rights-of-way over Indian lands. They can be pernicious. Among them are claims by non-Indian fee land owners that they have an implied easement over adjacent trust lands. Far from being arcane, this issue is one faced by tribes on a regular basis. This article shows why there are no implied easements over trust lands.

Cert Petition in Carcieri v. Kempthorne


Rhode Island appeals land-into-trust ruling
Friday, October 19, 2007

The state of Rhode Island is asking the U.S. Supreme Court to hear a land-into-trust case that is being watched by tribes nationwide.

In July, the 1st Circuit Court of Appeals ruled that the Bureau of Indian Affairs can place 31 acres in trust for the Narragansett Tribe. The tribe is like any other tribe and can follow the Indian Reorganization Act, which authorized the land-into-trust process, the court said.

As I will argue in my forthcoming article, “Factbound and Splitless: An Empirical Study of the Impact of the Certiorari Process on Federal Indian Law,” the Supreme Court is unlikely to grant cert. in this case for two important reasons. First, there is no circuit split (“splitless”). What that means is that the federal courts of appeal that have addressed the question of the constitutionality of the fee to trust process (25 U.S.C. § 465) — the 8th Circuit in South Dakota v. Kempthorne, the 10th Circuit in Utah v. Shivwits, and the 11th Circuit in Roberts v. U.S., are examples — have held (just as the 1st Circuit did here) that the statute is constitutional.

Second, this case involves the muddying aspects of the Rhode Island Indian Claims Settlement Act and how it affects the application of § 465, rendering this case a bit messy as a factual matter (“factbound”). If this was a straight-up interpretation of § 465 without the Settlement Act’s application, the Court would be more likely to grant cert (although, without a split, not so much). In short, this case implicates a relatively small number of tribes (those Rhode Island tribes).

Land-into-Trust Decision:
Carcieri v. Kempthorne (July 20, 2007)

Earlier 1st Circuit Decision:
Carcieri v. Norton (February 9, 2005)

Relevant Documents:
Carcieri v. Norton Briefs, Opinions (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe –
Tribal Supreme Court Project –