AIPRA Community Education Project

The American Indian Probate Reform Act (AIPRA) took effect in June, 2006 and affects the land interests of thousands of American Indians across the United States.听 Through a grant by the Colorado Bar Foundation, the University of Colorado Law School鈥檚 American Indian Law Clinic developed and presented community education materials designed to explain AIPRA鈥檚 key provisions and help community members and legal practitioners in the estate planning process.

In April of 2006 American Indian Law Clinic student attorneys presented two community education seminars for Metro Denver and Durango-area American Indian residents and attorneys.听 This web site provides its visitors, both lay and legal professionals, with information on AIPRA, materials and tools to assist in inquiries about land interests, and links to other AIPRA resources.

Allotment

The General Allotment Act of 1887 (Allotment Act) initiated听 the policy of Indian land allotment by authorizing the President to allocate听 plots of land on Indian Reservations, to Indian individuals and families听 (allottees).听 Allotments were held in听 trust by the government for their American Indian recipients.听 This meant, in part, that the land could not听 be sold and was exempt from state property taxation.听 After the allotment phase, 鈥榮urplus鈥� land on听 Indian Reservations was sold to non-Indians to settle and cultivate.听 American Indians lost over two-thirds of听 their tribal land through this process.听 Allotment听 was seen as a way to assimilate American Indians into mainstream white farming听 culture and to do away with traditional tribal ways of life.听

Under the Allotment Act, the land of deceased allottees听 passed to their heirs according to the laws of the state where the land was located.听 In 1910, Congress passed a law that allowed听 American Indian allottees to pass their land on to their heirs by will.听 Despite this change in the Allotment Act,听 however, few American Indians wrote wills.听This intestacy led to problems with fractionation.

Fractionation

Under the Allotment Act, heirs (those who inherited by听 intestate succession) took land as tenants in common, holding undivided shares听 of the same piece of property.听 With each听 generation of heirs, the shares got smaller and smaller.听 Today, some of the original allotments are听 held by so many heirs that shares are as small as a piece of 8鈥� x 11鈥澨� paper.听 Additionally, because the land听 was held in trust by the federal government, the small land interests could not听 be sold or consolidated among the land holders and so was effectively useless听 for them.听

Congressional Action

Over the last century, Congress has acted several times to听 try to remedy the fractionation problem.听The Indian Land Consolidation Act of 1983 (ILCA) was designed to remedy听 fractionation by authorizing tribes to adopt plans for consolidation of tribal听 lands thorough purchase, sale or exchange.听听 Tribal land consolidation plans required approval by the Secretary of听 the Interior.听 While ILCA addressed some听 of the fractionation problems inherent in the Allotment Act, it did not fully听 resolve issues related to intestacy.听

In response to this congressional action, some tribes听 and tribal members challenged ILCA because, in part, it allowed for very small听 fractionated interests to revert (or 鈥榚scheat鈥�) to the tribe without听 compensating the owners of these small interests.听 Over the next several years, there were听 additional amendments and court challenges surrounding ILCA.听 For more information regarding these court听 challenges and amendments, see the link below, History of AIPRA.

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AIPRA was enacted in 2004, in part to address issues ILCA had not yet resolved. AIPRA continued to build on Congress鈥� commitment to tribal self-determination by empowering tribes to design their own solutions to fractionation issues.听 Principally, AIPRA creates a uniform probate听code for writing wills and specifies rules for intestate inheritance of听 interests in allotted lands held in trust.听

AIPRA is Congress鈥� most recent attempt to solve the fractionation problem.听AIPRA builds on ILCA鈥檚 land consolidation goals, and represents an effort to change the way these trust lands are administered.听In particular, AIPRA:

  • Creates听a new federal probate code which applies to all interests in allotted lands held in trust.
  • Enables听American Indian tribes to develop tribal probate codes which, upon听approval by the Secretary of the Interior, supersede AIPRA鈥檚 federal probate code.
  • Addresses听intestate fractionation by limiting intestate inheritance of fractional interests smaller than 5% to a single eligible heir.
  • Permits听the voluntary and involuntary sale of highly fractionated land听parcels upon the request of a tribe or tribal member who wishes to buy the interest.听
  • Defines eligible heirs as family members within two degrees of consanguinity (parents, children, siblings, grandparents and听 grandchildren).

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One of the most important things for landowners听 to know is about writing a will.听 If听 owners of interests in allotments held in trust do not write a will, their land听 may pass to unexpected people.听 While听 land owners may want their land to pass to a niece or great-grandchild (or听 non-relative), for example, AIPRA鈥檚 provisions regarding intestate (without a听 will) inheritance do not recognize these individuals as heirs.听 Landowners who write wills are in the best听 position to ensure that their wishes are carried out when they pass on.

Some American Indians who have interests in allotted lands听 held in trust may not know what types of land (or mineral) interests they听 have.听 When thinking about how to听 transfer ownership of land interests or getting ready to write a will, owners听 of interests in allotted land held in trust can do one of two things to听 determine their land interests.听

First, land interest owners can call or write the Bureau of听 Indian Affairs to request a copy of their Individual Trust Inventory Record听 (ITI) which is a detailed account of the land interests they own.听 At the same time, they can request a report听 on their Individual Indian Money Account (IIM), which is a federal Indian money听 account accrued by income from their land interests.听

Contact Bureau of听 Indian Affairs Realty Offices

BIA Realty Offices (located on most American Indian Reservations听 throughout the country and at all Regional Offices) are equipped to take听 requests for ITI and IIM reports.听 When听 requesting these reports, American Indians must request them on their own听 behalf, sometimes in writing and sometimes over the phone, depending on the听 office.听 Included in the links below are听 templates for ITI and IIM requests.听听 Please note that some Realty Office staff will process the reports听 simply by the American Indian verbally requesting the reports, while other听 Realty Offices require the request in writing, signed by the requestor (and in听 some cases, with a copy of a photo ID or notarized signature on the听 request).听

Reviewing the ITI and IIM reports is important in order to听 identify any inaccuracies or incomplete inventories.听 Upon review, if there are any inaccuracies it听 is important to contact the Office of the Special Trustee.听

Call the Office of the Special Trustee

The Department of the Interior houses the Office of听 the Special Trustee, which is charged with managing individual American听 Indian鈥檚 land interests and income from those lands.听 The Office of the Special Trustee, like the BIA Realty Offices, can also generate the ITI and IIM reports upon request.听 The Office of the Special Trustee can be听 reached toll free at 1-888-678-6836.

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Writing a will can be a challenging process.听 While some organizations provide general听 information about writing a will under AIPRA, many owners of interests in听 allotted lands held in trust may want to consult with an attorney who is听 experienced in federal Indian law generally and who is familiar with AIPRA鈥檚听 requirements for writing a valid will.听听 While the American Indian Law Clinic is unable to help American Indians听 to write wills, there are a few resources on this page that may help land听 owners.听

There are several questions that landowners can ask to find听 out if an attorney has the right kinds of experience to assist him or her with听 writing a will.听 Some organizations, such听 as Dakota Plains Legal Services, currently assist trust land owners to plan for听 probate, will writing and trust land management.听 Other organizations, like the Indian Estate听 Planning Project, have created template wills for land owners interested in听 writing a will.听 For more information听 from these organizations, see the Resources page for their web sites.听

Below are two links which also may help land owners in听 this inquiry.听 The first is a series of听 questions to ask an attorney before retaining him or her to help with an AIPRA听 will.听 The other is a list of attorneys听 and legal offices in Colorado听 who may be able to help with writing a will.

There are five tribes which are unaffected by AIPRA. These five tribes have their own specific听 probate codes laid out by Public Laws promulgated by Congress.

  1. Yakama听Tribes 鈥� P.L. 91-627
  2. Nez Perce Tribe 鈥� P.L. 92-443
  3. Standing听Rock Sioux Tribe 鈥� P.L. 96-274
  4. Sisseton听Wahpeton Sioux Tribe 鈥� P.L. 98-513
  5. Warm Springs听Tribe 鈥� P.L. 92-377

For more information on the probate laws for these听 five tribes, look at the specific Public Laws which control their probate and听 will writing processes.听 The Institute听 for Indian Estate Planning ()听 has a link to the current AIPRA provisions, including those related to these听 tribes鈥� probate laws.

In November 2008 the American Indian Law Clinic traveled to Ignacio, Colorado, and presented a workshop for the Southern Ute tribal community on will drafting and听 estate planning.听The video presentation,听"Planning for the Seventh Generation:听A Will Drafting and Estate Planning Workshop" and the accompanying Powerpoint presentation can be found below.

There are several organizations that have focused their听efforts on understanding the impacts of fractionation, Indian land tenure and听AIPRA.听 For more information on these听subjects, please visit the links below.

The following questionnaire developed by the University of Colorado American Indian Law Clinic will assist a person in collecting the necessary information for drafting a will and other estate planning documents.

Indian听Land Tenure Foundation

Indian Land Working Group

Institute for Indian Estate Planning and Probate

Dakota Plains Legal Services

Indian Estate Planning Project/Northwest Justice Project

Allotment

The process of dividing up and assigning parcels of听 reservation land to American Indian tribal members (allottees) as private听 property.听 Allotment began in 1887 with听 the passage of the General Allotment Act.听听 Allotment ended only after American Indian tribes had lost over 2/3 of听 their tribal land base.

Fractionation 听听听听听

Since the allotment period, original allotments have been听 divided up many times over when land owners pass on and their land transfers to听 their heirs, resulting in original allotments now being owned by dozens 鈥� or听 hundreds 鈥� of descendants of the original allottees.听 Fractionation renders many allotments听 unusable by their current owners.

Inalienable 听听听听听

Status of allotments, which meant that the allotments could听 not be sold or gifted by their owners.

Intestate 听听听听听

People who die without a will are said to be intestate.听 Intestacy refers to the same status, without听 a will.听

Trust land 听听听听听

Land held in trust by the federal government on behalf of tribes and tribal members. Allotments听 are held in trust by the government. These lands cannot be taxed by state or local governments and trust land听 owners are limited in how they can transfer this land.