DRAFTING WILLS in INDIAN COUNTRY Mary E. Guss IPLP 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 or General Allotment Act Passed by US Congress in 1887 Stated purposes: eradicate Indian tribalism and poverty Transfer 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 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 acres Salt River Pima – Maricopa25,000+ Gila River Indian Community100,000- Tohono O’Odham, San Xavier40,000+- Colorado River Indian Tribes 8,400+- San Carlos Apache 1,000- Yavapai-Apache Nation100-

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. §§ 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: 1 st – equally to children, grandchildren or great grandchildren 2 nd – eligible parents or siblings 3 rd – tribe with jurisdiction 4 th – Co-owners Last – if none of the above, then fed gov, to sell

Eligibility Who is an eligible heir? Indian, or A lineal descendant within two degrees of consanguinity of an Indian, or An owner of a trust assets or restricted interest in a parcel of land pre-2004 Then - 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 away Still need to leave property to eligible heir (trust) Want to leave property in fee? Non-IRA tribes only And only if heir does not fit definition of eligible heir But 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 testator Two witnesses (who are taking nothing) Testator over 18 and of sound mind Know what property they own and Know 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 MoneyMoney (IIM) Report

Disposing of Trust Property Note: Trust property cannot be left in trust. No PR is required Four basic options: Single heirSpecific parcel/specific heirs Joint tenants with right of survivorship Tenants in common

Disposing of Trust Property, con’t Can leave trust interests to: any lineal descendant or any person who owns a preexisting un- divided trust/restricted interest in the parcel or the Indian tribe with jurisdiction or any 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 allottment Bequest of trust land includes “permanent improve- ments attached” to the land Best to mention the home specifically Assignment

Trust Personal Property Called trust personalty in AIPRA; defined as: …all funds and securities of any kind which are held in trust in an IIM account or otherwise supervised by the SOI May be devised to ANY person or entity If to eligible heir, BIA continues to manage If 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 property If it’s off-reservation, state law controls On 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 death 2.Testator and spouse have a child 3.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 heir If the land is non-IRA land and If 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 code Works to prevent transfers of trust lands to non tribal members; found at: Pre-AIPRA tribal probate codes will still control inheritance of non-trust property on the reserva- tion

Gift Deeds Another way to stop fractionation Each BIA realty office has different documents; get the forms from the appropriate one BIA 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 ( )

Helpful web sites Seattle University Institute for Indian Estate Planning and Probate: institutes/center-for-indian-law-and- policy/indian-institute institutes/center-for-indian-law-and- policy/indian-institute Montana University:

Helpful web sites, con’t anning_handbook_final.pdf from the Uni- versity of Wisconsin Great Lakes Indian Law Center anning_handbook_final.pdf