For more than a century, Indian families have seen valuable land resources diminish as fractionated ownership increases with each passing generation. ILTF supports estate planning as one of the most effective ways to stop the continued division of Indian land titles and ensure that Indian lands are controlled and managed by Indian people. Over the years, ILTF has funded projects that provide education and free estate planning services for tribal members across the Pacific Northwest, Oklahoma, North Dakota, South Dakota, Minnesota, and many more places. As a result, more than 3,500 landowners have received direct legal service and will writing assistance. In addition, more than 7,500 people, including elected tribal officials, landowners, attorneys and Indian land heirs have received training through ILTF-funded estate planning programs.
Helpful landowner resources
ILTF has visited countless tribal communities in recent years to provide landowner information on estate planning and will writing. Over the past year, the COVID-19 pandemic has halted all travel in order to protect the health and well-being of elders and others in the community. As a result, ILTF has now developed a series of online resources to help Native American landowners, individual agricultural producers and tribal leaders to better manage their land.
Regular information distribution
ILTF will distribute information via email on the 2nd Tuesday of each month throughout 2021 to educate and engage community members on critical issues. We will provide multiple ways for tribal members and others to actively participate in building their knowledge of Indian land laws, regulations and court cases in order to effectively manage their inheritance. The information will also be available here for future reference.
Town Hall meetings
ILTF is now hosting Town Hall-style meetings online where subject matter experts will answer questions and help participants to better understand important land issues. ILTF invites landowners and agricultural producers to offer information on the problems they face along with potential solutions that could help others in Indian Country. Information on upcoming Town Hall meetings will be distributed by email and posted here.
The following information for landowners is organized by the date it was distributed via email. Please email firstname.lastname@example.org if you would like to be added to the distribution list.
May 20, 2022
The Basics of Do-It-Yourself Estate Planning
Owning assets is usually pretty straightforward, but Indian landowners do need a written plan (a will) after death to determine who will receive the assets acquired from a lifetime of hard work. This short primer is designed to help landowners understand some of the issues involved in preparing a will.
Arranging for the future of trust and personal assets for the end of life can be both complex and stressful. The Indian Land Tenure Foundation (ILTF) developed a simple way for individuals to deal with basic estates on their own. Called Will in a Box, the free online will writing tool meets the needs of Native Americans with trust and restricted-fee assets. Whether landowners want to do their own will writing (known as ‘Pro Se’) or use Will in a Box as a way to get ready to work with a team of estate planning professionals, the online will is a helpful way to get started.
Understanding Wills and Estates
The importance of a will for Indian landowners can’t be overstated. The more understanding landowners have of probate and the issues involved in writing a will, the better prepared they will be to leave the legacy they worked so hard to build and protect during their lifetime. Throughout Indian Country we hear landowners say things like, “I don’t have much, why should I write a will?” The answer is simple: Dying intestate (without a will) while owning trust or restricted-fee land is a recipe for giving away sovereignty to the federal government. The absence of a will may also cost loved ones time (often three or four years or even longer) before they can use the land. Making an estate plan is worth the time it takes, and taking that time is a small price to pay to take care of family.
A well-designed estate plan is a written place to document:
- Who should receive Indian assets
- Who should receive non-Indian land
- Who should receive cash
- Share wishes on care for minor or incapacitated children or grandchildren
- Eliminate doubt about healthcare decisions (living will or advanced directive)
- Provide direction on what to do with digital assets (social media accounts, digital photos in the cloud, email, and access to online financial accounts like PayPal or Etsy)
Should you write your own will? Although ILTF strongly recommends using knowledgeable professionals during the estate planning process, Will in a Box meets the basic needs of Native Americans with trust and restricted-fee assets. Will in a Box reduces some of the obstacles to writing wills, such as lack of money or opposition to working with attorneys. It also helps Indian landowners answer important questions and organize information to include in a valid will.
The estate planning checklist linked below will help landowners to collect information needed to get started. The Will in a Box questionnaire takes about an hour and once completed users can save, print and email the draft will document. The printout includes simple instructions and a will for signatures by the testator (person whose will it is) and necessary witnesses.
Will in A Box not only serves to deliver a legal will in some states, it walks all landowners through the decisions and steps critical to planning for the transfer of assets from one generation to the next.
Will In A Box [Hosted at Law Help Interactive]
Estate Planning Checklist [ILTF]
Will In A Box demonstration video [MLSA on YouTube]
Estate Planning Providers
- American Indian Wills Clinic at the Oklahoma City University Law School
- (405) 208-5017
- Arizona State University – Sandra Day O’Connor College of Law
- Dakota Plains Legal Services
- (605) 856-4444
- Montana Legal Services, Inc
- Native American Program – Legal Aid Services of Oregon
- (503) 223-9483
- Oklahoma Indian Legal Services
- (800) 658-1497 (in State Only)
- Stewards of Indigenous Resources Endowment
- (866) 639-5550
April 19, 2022
The Basics of Owner-managed Interest Leasing
As long as the federal trust responsibility exists, the ability of landowners to exercise their rights on their Indian land will be limited. Agricultural leases do offer one opportunity that was included in the American Indian Probate Reform Act (AIPRA) in 2004. Referred to by some as the “family farm lease,” the principle of owner-managed interest (OMI) is that landowners can organize to take advantage of their land on their own terms.
The purpose of 25 US Code Section 2220: Owner-managed Interests is simple: To provide a means for the owner or co-owners of trust or restricted interests to enter into surface leases without the specific approval of the United States Secretary of the Interior. As usual with Indian land, however, the realities can be a little more complex.
Important information to know
There is no regulatory framework for implementation of owner-managed interest status. Without clear executive instruction, Indian landowners are left to deal with a patchwork of processes that vary from region to region.
The application listed below is not directly offered by the Department of the Interior, the brochure cited is not available on the Bureau of Indian Affairs (BIA) website, and there is no standard owner-managed lease form. These steps are a set of best practices and/or are described in the law itself:
- Requires applications for owner-managed status (OMS) be submitted and signed by ALL landowners
- These applications for OMS do require approval from the Secretary of the Interior. (Once obtained, the individual leases do not require Secretarial approval.)
- Only for agricultural leases (NOT for mineral extraction)
- Lease also requires signatures by ALL landowners
- Lease term may not exceed 10 years
- Lease revenue collection and accounting is a responsibly of the landowners (No longer a Secretarial responsibility)
- Lease compliance is a responsibility of the landowners (No longer a Secretarial responsibility)
- OMI leases must be recorded by the Land Title Records Office
- There is no specific term that ends the OMI status
- Revocation will not end any current leases on the trust or restricted interest parcel
- An Indian tribe with jurisdiction over the land where the parcel is located maintains that jurisdiction
- Persons leasing and using the land consent to the tribe’s jurisdiction
- Gift deeds, sales, wills and intestate probates will require the OMI status to be renewed to ensure ALL landowners approve
Landowners need to remember that they have a right to end their participation in the OMI leasing process by submitting a letter of termination. While the law contemplates that regulations will be created for this rule as well as the broader law, the Department of the Interior has yet to publish any related regulations.
- Message Runner #9: Managing Indian Land in a highly fractionated future
- 25 US Code 2220: Owner-managed interests [as published by Legal Information Institute]
- Owner Managed Interest Brochure (U.S. Department of the Interior)
- Application for owner-managed interest (U.S. Department of the Interior)
Feb. 9, 2022
The Basics of Indian Realty
Begin with the basics. Given the complex nature of the laws and regulations regarding Indian land, it’s important for landowners to have a firm grasp on the basic building blocks before tackling the transactions and processes involved. This primer should help Indian landowners learn more about how to make the most of this unique asset that is so valuable to families and tribal economies.
Let’s begin with the legal differences between land, real estate and realty, three terms that are used a frequently when discussing Indian land:
- Land – The earth’s surface to the center of the earth along with the air space above the earth, including natural features like trees and water
- Real estate – Land plus permanent human-made additions like buildings and fences. (This was legally changed by Congress for Indian lands and will be discussed below.)
- Realty – Also known as Real Property, realty is real estate plus a bundle of legal rights of ownership
In its simplest form, ‘jurisdiction’ is the exercise of sovereign authority by a government over territory within its national borders. Government laws establish the structures of what can be legally done on/with private land and also create either opportunities or obstacles for landowners to reach their goals. Two applications of civil jurisdiction used by the government over landowners are property taxes and zoning regulations. Here is a general list of land tenure and jurisdiction issues that landowners may need to consider in using land in a reservation community:
- Bureau of Indian Affairs (BIA) (Federal)
- Allotment landowner
- Tribal member
Concurrent jurisdiction is common throughout Indian Country. With shared authority, one government entity may have supreme jurisdiction over the other. When dealing with Indian land issues it’s important to understand the case law governing a given situation. When a question of appropriate jurisdiction occurs, and there isn’t clear agreement between governments, the two parties often end up pursuing their sovereign interests in court. (Scroll down to the resources posted on Jan. 17, 2022, for a more thorough discussion of case law.)
The first issue to cover for property types in Indian Country is ‘title’ which has two meanings: 1. Evidence of ownership by a deed or 2. Ownership of the land as represented by the owner’s bundle of rights.
- Fee – The title holder is entitled to all rights to the property. These rights are usually limited only by public and private restrictions, such as zoning and restrictive covenants. When the landowner dies, the rights to the land pass to the owner’s heirs. In the context of Indian lands, the owner has the right to encumber (assign the property rights) or sell the property without federal interference.
- Restricted Fee – Title is held by the tribe or individual Indian landowner, subject to restrictions. Those rights limit the ability of the landowner to encumber or alienate the land without federal approval.
- Trust – Title is held by the United States government for the benefit of the tribe communally or for an Indian individually. All rights bestowed by title belong to the federal government. Beneficial owners face restrictions on the use of any bundled right without federal approval.
Congress used statutory law in 2008 to change the nature of Real Estate to address a federal problem with environmental contamination and remediation. Through the Act, permanent improvements are no longer considered trust assets. Click here to see a pdf version of the Permanent Improvements PowerPoint presentation.
Another key issue with trust land is the direct beneficial ownership form. Beneficial title is held by individuals as joint tenants or as tenants in common. Both provide the owner with the right to use or make decisions for the whole property, not just a specific piece of it. Click here to see a pdf version of the Joint Tenancy PowerPoint presentation.
BUNDLE OF RIGHTS
The Bundle of Rights is a concept in realty that is derived from old English law. A key concept of that law allowed rights to be separated and transferred individually or used by a landowner. The person, people or government who hold title to the real estate also owns these rights.
- Right of Possession – The right to use the property
- Right to Control – The right to do with the property as you wish
- Right of Enjoyment – The right to benefit from your property as long as you are not doing anything illegal
- Right to Exclusion – The right to keep others from entering your property
- Right of Disposition – The right to sell, devise (a will) or encumber (lease or easement) the property.
For a longer discussion of the Bundle of Rights, as well as information on the major differences of those rights for Indian land, please click the PowerPoint presentation below. [Bundle of Rights PPT]
Click here to watch a video of ILTF’s Realty 101 Town Hall recorded on Feb. 22, 2022
- Message Runner #1: An overview of the major Indian land tenure issues
- Tribal Lands: An Overview [a publication of the Congressional Research Service]
- Bundle of Rights presentation (a pdf version of the PowerPoint presentation)
Jan. 17, 2022
Statutes, Regulations and Case Law basics for landowners
Sometimes it seems like landowners need to be lawyers to understand all of the rules and regulations involved with owning and managing Indian land. The legal environment surrounding Indian lands is certainly complex, but there is some basic background information that will help landowners with the overall framework. This brief is meant to provide that information to help landowners better understand how the laws, regulations and court cases covering Indian land determine what they can do with their trust and restricted-fee assets.
What is the difference between the statutes, regulations and case law?
Conversations about land transactions in Indian Country often refer to CFR – the Code of Federal Regulations. It is critical to know the regulations since they lay out the operational processes the Bureau of Indian Affairs (BIA), landowners and users of Indian land have to follow. But before regulations are created, Congress passes legislation (statutory law) that spells out the legal rights and power of parties to transactions. Education on these laws can help landowners to determine if their rights are being protected in the processes spelled out by regulations. Finally, case law (court decisions) determines among competing federal, state and tribal interests what rights each government has in the overall legal environment. That authority then spells out limitations or opportunities covering the rights of landowners.
Statutes: Enacting the law through a deliberative process
Statutory law can also be called an ‘act’ such as the Dawes Act of 1887. Also known as the General Allotment Act, the Dawes Act is the legislation that led to Indian people having beneficial ownership of land today. The land in more than 175 tribal communities was divided into individual allotments for tribal citizens. Some 135 years later, fractional ownership still exists as a result of this law which stated that land protected under its language could not be alienated from the tribal community. Allotments were ended and tribal communities were reorganized under the umbrella of the Indian Reorganization Act of 1934 and the Oklahoma Indian Welfare Act of 1936. Both of these statutory laws spell out who may own Indian land and for what reasons.
There are three other important acts which serve as the basis for the regulations covered in subsequent paragraphs:
- The Act of February 5, 1948 for granting rights-of-way across Indian lands
- The Long-Term Leasing Act of 1955 for land leases
- The American Indian Agricultural Resource Management Act
Regulations: Creating rules for executive action
Regulations are used by various federal and tribal administrations to enact policy goals such as leasing of land and extraction of mineral resources. A regulation is an official rule to control conduct within specific areas of responsibility. Earlier publications in this series discussed regulations related to agriculture leases (25 CFR Part 162 – Subpart B) and rights-of-way (25 CFR Part 169); and more broadly, leasing regulations are covered under Part 162 as a whole.
Regulations are used by the BIA to process land transactions and should be consistent across all agency offices. The regulations describe how landowners can exercise and protect their rights, and it’s important for landowners and agricultural producers to understand how the laws and regulations in Indian Country can impact them. (See links below to the various regulations)
Case Law: Interpreting the law through the courts
Case law is based on judicial decisions rather than constitutions, statutory law or regulations. Case law concerns unique disputes resolved by courts using facts of the case. Understanding case law is usually the weakest part of a landowner’s knowledge base, but it can sometimes be the most important piece of the puzzle for maximizing the benefits of landownership. It is critical to recognize that there are more courts that have an impact on tribal land than just the U.S. Supreme Court (SCOTUS).
The reason the Supreme Court carries so much weight in conversations of Indian land is that adjudicated issues can be applied across the board for all affected tribes. To illustrate the impact of case law on Indian land ownership, we have included cases from the Supreme Court, the Sixth Circuit Court of Appeals, Internal Revenue Service and the Interior Board of Indian Appeals (IBIA)
Below are some common issues from the landowners point of view that often arise. Links to the related cases are included in the Additional Resources section.
- “As long as I own my trust land, neither the feds nor the state can tax the revenue proceeds from my cows, corn, oil, etc.” – See Revenue Ruling 67-284
- “The county cannot tax the mobile home I live in on my tribal lease.” – See Bryan vs. Itasca
- “The state cannot even tax my fee property on the reservation.” – See Keweenaw Bay Indian Community vs. Naftaly. (This is a specific case which is included here because it illustrates that until the Supreme Court rules on a case, similar tribes using the same treaties may not receive the same judicial ruling. The Lake Superior Chippewa Tribe covers separate Bands that hold reservation land in three different states meaning they are under the jurisdiction of three different U.S. Circuit Courts of Appeals.)
- The eastern half of Oklahoma is Indian Country again. – See McGirt vs. Oklahoma
- American Indian History Timeline – The updated timeline illustrates events, policies legislation and laws relating to Indian land tenure from 1598 to the present.
- Message Runner #4 – From Removal to Recovery: Land Ownership in Indian Country
- Message Runner #6 – Native Land Law: Can Native American People Find Justice in the US Legal System
- Dawes Act (General Allotment Act of 1887)
- Wheeler-Howard Act (Indian Reorganization Act)
- Oklahoma Indian Welfare Act
- Public Law 108-374 (American Indian Probate Reform Act)
- 25 U.S. Code Chapter 24 Indian Land Consolidation
- 25 CFR Part 162 – Leases and Permits
- Subpart A: General Provisions
- Subpart B: Agricultural Leases
- Subpart C: Residential Leases
- Subpart D: Business Leases
- 25 CFR Part 169 – Rights-Of-Way Over Indian Land
Case Law (Cases are from the Supreme Court unless specifically noted)
- Revenue Ruling 67-284 [Internal Revenue Service] – Non-tax of income derived from Indian land
- Bryan vs. Itasca County – Civil jurisdiction of tribes over their members (excludes state taxation)
- Brendale vs. Confederated Yakima Indian Nation – Tribal authority/exclusive jurisdiction over non-Indian property within a “closed” reservation
- Keweenaw Bay Indian Community vs. Naftaly (Township of L’Anse) [Sixth Circuit Court of Appeals] – State lacks authority to levy property taxes on Indian-owned land even if in fee simple
- Carcieri vs. Salazar – Secretary of Interior may only take land into trust for tribes recognized in 1934 (now under federal jurisdiction)
- McGirt vs. Oklahoma – Although in connection to death penalty/capital punishment, case asserts that Muscogee Creek nation (and other Five Tribes) were not disestablished
- Shawano County, WI vs. Acting Midwest Regional Director, BIA [Interior Board of Indian Appeals] – Affirmed trust acquisitions on behalf of the Stockbridge Munsee Community
Click here to watch a video of the Impact of Laws, Statutes and Regulations Town Hall recorded Jan. 25, 2022.
Nov. 17 Town Hall: Landowner Knowledge, Skills and Abilities
Important landowner rights:
- Assorted Indian Land Consolidation Act (Assorted section)
- Owner-managed Interests (Section 222)
- Real Estate 101 Presentation
Sept. 14, 2021: Agricultural Leasing for Landowners and Native Producers
Unchanged for too long, the federal process for ag leasing in Indian Country has transformed over the last 25 years to give tribal communities the ability to set their own goals and ground rules for agriculture. This brief overview should lead landowners and producers to basic information on statutes and regulations, and help them to exercise their power in managing Indian lands to meet their communities’ needs.
How does the process work?
The process for leasing agricultural land involves several steps, including these primary ones:
- Pre-Lease Activity
- Identification of lands available for lease
- Lease Preparation
- Negotiated Lease Preparation
- Receipt of negotiated lease
- Review of document for compliance with all applicable regulations
- Lease Preparation from an Advertised Sale
- Advertising of available lands
- Conducting the lease sale
- Preparation of draft lease
- Lease Amendment, Assignment and Sublease
- Approval of the lease
- Issuance of the lease
- Recording of the lease
- Lease Administration
- Processing of any subsequent amendments, assignments, subleases and other leasehold documents
- Lease Compliance
- Monitor leases for financial and land use compliance
- Issue notice(s) to correct any provisions of the lease that have been violated
- Terminate or cancel the lease and evict if violations remain uncorrected
- Negotiated Lease Preparation
The process places a lot of authority in the hands of the tribe if they actively manage their lands through agricultural land planning and the creation of appropriate laws and regulations. The more landowners and ag producers know, and the more they are involved, the greater their power to ensure their rights are represented during the development of a local legal framework.
Leasing: The Law
The Early Days: The legal environment was put in place more than 50 years ago by the Long-Term Leasing Act of 1955. This law is found in U.S. Code 25, Chapter 12 – Lease, Sale, or Surrender of Allotted or Unallotted Lands – and Section 415 specifically deals with the Lease of Restricted Lands. Most of the original policies and procedures set the tone for how Indian lands would, and often continue to be, managed.
The American Indian Agricultural Resource Management Act (AIARMA): In 1993 Congress passed the AIARMA, which changed several existing rules for leasing. Coming about during the age of the Cobell litigation, BIA emphasized accountability and deference to landowner needs and the sovereign authority of tribes. The primary changes to ag leasing laws had the following impact:
- Bureau of Indian Affairs (BIA) must recognize and enforce tribal laws and regulatory ordinances
- Requires that federal land management activities conform to tribal management plans
- Establishes a maximum lease term of 10 years but…
- Continues a maximum of 25 years for ag leases that require a “substantial investment”
- Regardless of lease length, rent adjustments are required at least every five years
- Simple majority consent of landowners on allotted lands
- Written objection by majority ownership of allotted lands to certain tribal leasing policies (e.g. tribally-established rental rates) may exempt the property from those rules before a lease is granted or approved
- Legally adopted the “best interest” and “market rent” standards
The Helping Expedite and Advance Responsible Home Ownership Act (HEARTH): The HEARTH Act gave even greater deference to tribal governments in leasing. The Act governs residential leases but also enabled tribes to provide greater direction on business and agricultural leasing. One of the most significant reasons for tribes to adopt HEARTH Act laws and regulations is the ability to approve leases without the BIA. The HEARTH Act only applies to tribal land leases but DOES NOT affect allotted lands.
The HEARTH Act provides a road map for adopting this type of ordinance. Included in the resources section below is the Agricultural Leasing Code of the Ho-Chunk Nation, which offers an example of what a tribal community can do under this federal law.
Ag Leasing: The Regulations
The Agricultural leasing regulations required by AIARMA were approved and published in 2001. (Updates are found in CFR 25, Part 162 – Subpart B.) The separation of agricultural items from the rest of Part 162 was designed to bring greater clarity. Among the highlights from Subpart B are the following:
- Fully documented “form” leases must be processed within 30 days of receipt
- The rights of an owner in possession of the property are balanced against all other owners by granting the possessory owner a Right of First Refusal in the event of a negotiated lease
- Although rent adjustments are required by the law, the regulations are silent on the issue, leaving the time and manner of adjustment to be specified in each lease
- All ag leases must be recorded
- BIA is required to respond in situations of non-payment violations and is authorized to assess late fees and pursue pre-cancellation collections
- Authorizes emergency actions to protect the ag resource as needed to address holdover, unauthorized use, and resource damages
Greater detail on these issues can be found in the resources listed below, including the AIARMA presentation, the Agricultural Leasing Procedural Handbook, and the Agricultural and Rangeland Management Handbook.
Click the links below to access more helpful resources.
- U.S. Code 25, Chapter 39 – American Indian Agricultural Resource Management Act
- CFR 25, Part 162, Subpart B – Agricultural Leases
BIA Ag Resources
- AIARMA and BIA Ag Leasing and Permitting Regulations (November 2016 presentation)
- Agricultural Leasing Procedural Handbook (March 6, 2006)
- Agricultural and Rangeland Management Handbook (July 14, 2021)
HEARTH Act Overview
- BIA: HEARTH Act of 2012 website
- BIA National Policy Memorandum: Guidance for the Approval of Leasing Regulations under the HEARTH Act
- Ho-Chunk Agricultural Leasing Code
August 10, 2021: Rights-of-Way Basics for Landowners
There are roughly eight distinct steps in the federal rights-of-ray process in Indian Country, two of which are usually of primary concern for landowners trying to protect their interests. This brief should provide landowners with basic information on the topics of Consent and Valuation, and help landowners to exercise their power in managing their Indian lands during the rights-of-way process.
How does the process work?
The process involves several steps and always begins at the Bureau of Indian Affairs (BIA). These are the primary steps:
- Obtain the Title Status Report (TSR)
- Names, addresses and ownership percentage of landowners
- Submit an application to the BIA
- Location, purpose and duration of the ROW
- Valuation report
- Obtain or grant consent
- Procure bonding for the project (an insurance for performance of agreement terms)
- Environmental and archeological reports
- BIA approval
- Execute and record the right-of-way
- Compliance and enforcement
The process places a lot of authority in the hands of the BIA. The more landowners know, and the more they are involved, the greater their power to ensure their rights are represented during negotiations.
Rights-of-Way: The law
The Act of February 5, 1948 is the primary authority for granting rights-of-way across Indian land as codified in statutes as U.S. code 25, chapter 8 and includes sections 311 to 328. These sections address various types of rights-of-way and establish ground rules for acting on uses of land. Landowners should pay attention to two sections in particular as they affect Indians’ rights on Consent and Compensation. Section 325 grants all authority to the Secretary of the Interior to determine “just” compensation. Section 324 lays out the rights the Secretary has to grant consent:
- Simple majority of landowners
- Whereabouts Unknown
- Undetermined heirs if there is no substantial injury is caused by the grant
- More than 50 landowners (highly fractionated title) if no substantial injury is caused by the grant.
Rights-of-Way: The regulations
Code of Federal Regulations (CFR) 25, part 169 addresses the process through which the BIA details, administers and enforces the rules of rights-of-way. Various sections cover purpose, definitions and general provisions in obtaining a right-of-way. The issue of compensation to landowners is covered in sections 110-122.
- Section 112 covers individually allotted lands:
- Amount of compensation that must be paid
- Does not limit how much may be requested/demanded
- Makes special exception for utility cooperatives and tribal utilities
- Section 113 requires compensation reviews every five years
- Section 114 covers Fair Market Value
- Valuation is determined by:
- Market analysis
- Other appropriate valuation methods, such as those used by oil and gas or utility companies
- Department of the Interior (DOI) must either prepare or approve the valuation.
- Valuation is determined by:
The American Indian Probate Reform Act (AIPRA) was passed in 2004 and contains a section that changes the consent process for leases, rights-of-way and sales of natural resources on allotted lands. Referred to as the “sliding scale,” U.S. code 25, chapter 24, section 2218 increases the percentage required to act from simple majority to a higher level as the number of landowners decreases. For example, if there are 6-10 owners 80 percent ownership approval rate is required, but 11-19 owners requires only 60 percent. DOI explained that they would follow earlier rights-of-way law in protecting and preserving tribal sovereignty to grant or deny consent regardless of their ownership percentage if they are a co-owner in a parcel with Indian individuals (final rule 11/19/25). The regulation is an interpretation of the law and demonstrates that landowners may have rights not captured in the regulations. At the same time, it might help landowners to stop a federal action they disapprove of. Information on pipelines can be reviewed in U.S. code 25, chapter 8, section 321. To learn more about throughput valuation in the regulation go to page 72514.
Click here to watch a video of the Town Hall on rights of way
Click the links below for more information:
- Message Runner #8 – Appraisals 101: The realities of valuing Indian land
- 25 US Code Chapter 8 Sections 311-328 Rights of Way Through Indian Lands
- 25 CFR Part 169 CFR
- BIA Rights of Way
- Information Page
- Rights of Way on Indian Land; Final Rule 25 CFR Part 169 2015 Final Rule Rights of Way Regs
- Final Rule FAQs
- Appraisal of ROWs Memo 6-20-2019
- AVSO Overview
July 14, 2021: Probate Basics for Landowners
Probate is a complex legal process governed by tribal, federal and state laws and regulations that spell out the roles and responsibilities involved in distributing an estate. Depending on the person’s assets, two probates may be required: one state and the other federal as described below. It can take two years or more to complete an Indian probate so it’s important for landowners to know the rules and processes involved.
There are two separate agencies at the Department of the Interior (DOI) involved in the probate of Indian land: The Bureau of Indian Affairs (BIA) and the Office of Hearings and Appeals (OHA). The BIA’s Division of Probate gathers information about the decedent (the person who died) and his or her family and property and prepares it for adjudication. OHA judges are in place to ensure that individual Indian trust assets are conveyed to the rightful heirs and beneficiaries according to the appropriate probate law. After OHA issues a probate order, the Division of Probate works with other trust offices, such as the Bureau of Trust Funds Administration and the Land Titles and Records Office, to distribute the assets.
12 Steps to a Federal Probate
DOI published a guide called Your Land Your Decision – What is Probate? to explain specific probate issues in detail. This online document provides regulatory references along with steps in the process.
- An American Indian/Alaskan Native passes away
- Family of the deceased notifies the BIA
- BIA Agency/Tribal Probate verifies the decedent owned trust property at time of death
- BIA Agency/Tribal Probate requests information/documentation from surviving family members
- BIA Agency/Tribal Probate receives all necessary documents and prepares a probate package that is forwarded to OHA
- OHA reviews the file and schedules a hearing or summary probate
- OHA conducts a hearing or summary probate and issues a written decision
- Parties adversely affected by the decision may request a rehearing within 30 days of the mailing
- The Judge rules on the decision for rehearing, establishing another 30 days for appeal
- If no interested parties file a request or appeal within that 30-day window…
- BIA and Land Title Records Office (LTRO) changes land records in accordance with the final decision.
- OST pays claims and distribute funds in accordance with the final decision
Who starts the process?
Many families assume the BIA starts the probate process. That’s incorrect. To start the process a family member needs to contact the BIA agency where the decedent was enrolled and inform them of the death and send a certified copy of the death certificate.
If everything goes smoothly, the probate process could take 12 to 14 months to complete, but it often takes much longer with the document collection, appropriate notices, and hearings involved. The better-prepared families are with documentation, including having a valid will, the quicker the process is likely to take.
What information/documents needed for the Division of Probate?
- Death certificate
- Social Security number
- Tribal enrollment number
- Names, current addresses and tribal enrollment numbers of potential heirs and devisees
- Marriage and divorce records
- List of aliases or name changes
- Wills, revocations and codicils (amendments to the will)
Proposed regulatory changes
The American Indian Probate Reform Act (AIPRA) became law in 2004 and it affects all probates for those who passed away after June 2006. In 2016 and 2017, the BIA sought input on how the probate process was working. Through evaluation of public comments and examination of current regulations, DOI identified 13 proposed changes to improve the process and administration of probate for Indian people. The proposed changes listed below will likely have the most impact. (Click here to access the Federal Register containing the entire list of proposed changes.)
- Overly burdensome “Purchase at Probate” process – The probate must remain open indefinitely during the purchase, and a final decision cannot be issued for the remainder of the estate. The change would allow the case to close by providing certainty to buyers of interests the potential heirs/devisees agree to sell.
- Increase opportunities to use “Renunciation” to maintain trust status of property – The proposed rule would allow individuals additional time to renounce their rights to prevent the property from going out of trust.
- Reopening closed probate cases – Changes would limit both the number of rehearings an interested party may petition and make clear the circumstances under which new evidence may be submitted.
- Streamlining process for small estates – The proposed rule would increase the scope of estates that would be eligible for summary administrative decision without a formal hearing. This would affect estates with only cash of less than $300 and holding NO land.
- Descent of off-reservation lands – Current regulations do not address descent of Indian lands located outside the boundaries of a reservation and are not subject to the jurisdiction of a tribe (such as certain public domain lands).
- Assets – Property owned prior to death that has monetary value. In BIA Probate, assets include trust lands and monies held in Individual Indian Money (IIM) accounts.
- Beneficiaries – Individuals who inherit property from an estate by will or intestate. Beneficiaries are different than heirs (see below).
- Decedent – The person who died.
- Estate – The real and personal property that a person possesses at the time of death that passes to heirs or testamentary beneficiaries.
- Heir – A person who is eligible to receive property from an individual who dies without a will (intestate).
- Probate – The process of identifying and distributing the decedent’s estate.
- Will – Document that describes how an individual wishes to have their property distributed after death. Wills must be formally executed according to law applicable in the jurisdiction where the will is made.
Proposed regulatory changes for AIPRA (Federal Register 1/7/2021)
Probate Process for Native Americans – California Indian Legal Services (7/2012)
Office of Hearings and Appeals
June 8, 2021: Appraisal Basics for Landowners
Nearly every land transaction in Indian Country requires an appraisal (valuation) of the land and/or its resources. The U.S. Department of the Interior (DOI) uses those values in processing applications for sales, leases, rights-of-way, land exchanges, trespass, probate, and other types of transactions. The time it takes to complete an appraisal can make or break a transaction, so it’s important for landowners to know the rules and processes involved in the appraisal and valuation of Indian land.
In June 2016, Congress passed the Indian Trust Asset Reform Act (ITARA) which made three major changes that affect the valuation of Indian lands:
- A single office of Appraisal and Valuation Services Office (AVSO) was created to administer the appraisal process.
- Minimum qualifications were established for individuals to prepare appraisals and valuations.
- A process was developed to waive review or approval by DOI when a valuation is conducted by a qualified appraiser.
Landowners should be aware of a number of critical issues with Indian land appraisals which are outlined below.
Appraisal Request Process – The process always begins at the Bureau of Indian Affairs (BIA). A landowner or party interested in using or buying Indian land will need to discuss their request for an appraisal with BIA staff, and will need to submit the appropriate transaction application (sale, lease, etc.). Other documents may also be required, including:
- Land Title Status Report
- Probate order
- Tribal authorization
Appraisal Review Waiver – The Waiver rule requires the Department to forego review and approval of the appraisal or valuation and consider the appraisal or valuation final if three conditions are met:
- The appraisal or valuation was completed by a qualified appraiser
- The Indian tribe or individual Indian expressed their intent to waive DOI review and approval at the same time as the transaction request
- No owner of any interest in the property objects to the use of the appraisal or valuation without DOI review and approval.
There are exemptions for certain kinds of transactions that still require Departmental review, including the Land Buy Back Program, purchase at probate, and for acquisitions by the U.S. government such as fee-to-trust. (Appraisal Waiver Package Checklist)
Using an Outside Appraiser – When an appraisal is conducted by AVSO, it can take months or even years for landowners to receive an appraisal report. Landowners can speed up the process by using their own appraiser. Please be aware of some key issues before heading down this road.
- First, the funds to pay the outside appraiser are your responsibility. Once the landowner chooses to go outside of the DOI process they also agree to pay the appraiser’s fees which will likely be required in advance.
- Seller(s) must agree to the appraisal valuation. If any seller disagrees with the value they will likely refuse to sign the waiver application.
- Waiver applications that don’t have the appropriate signatures will automatically be denied.
- Without Interior approval or an accepted waiver, the transaction will die.
Important definitions to know
Appraiser – One who competently performs the valuation services in an independent, impartial, and objective way.
Appraisal – The act or process of developing an opinion of value.
Fair Market Value – An opinion of what a property would sell for in an open and competitive market, and a what a ready, willing and able buyer might pay for a property in the current market.
Highest and Best Use – Highest and best use is about what the land could be used for, not what it is being used for right now. In order to be considered the highest and best use the value must meet four criteria: Be legally permissible, physically possible, financially feasible, and appropriately supportable by the current market.
Sales Approach – Method of appraisal based on direct comparison of between the property being appraised and other properties sold or listed for sale in the area.
Income Approach – Appraisal method commonly used for commercial properties. Asks how much income the property can produce, including the proceeds of a future sale.
Cost Approach – Appraisal method that determines value by combining the value of the land with the cost to reproduce all of the improvements, less depreciation.
Site Specific Appraisal – An appraisal process that analyzes one tract of land at a time, based on physical and economic characteristics on the subject property compared to similar properties.
Mass Appraisal – Process used to value many properties that are similar in use (For example, dry crop pasture or vacant land) and have active/consistent markets or comparable sales data. The process uses common data, standardized methods and statistical testing and allows for greater efficiency and consistency in valuations.
Project Appraisal Report – A multiple tract appraisal report that includes the appraisal of more than one tract in a single report. The most relevant method of valuation is the same for all tracts and the report format follows the requirements under Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA), Section 17-D.
Mineral Deposit – Identifiable geological occurrence of minerals of a size and concentration that may have the potential for economic recovery, now or in the future. Typical minerals may include oil, gas, sand and gravel. Mineral values are determined by the Division of Minerals Evaluation, a part of the Appraisals and Valuation Services Office (AVSO) within the Department of the Interior.
Waiver of Appraisal Review
Indian Land Appraisal Webinar – On October 22, 2020 ILTF hosted a 90-minute webinar with Tim Hansen, Director, and Gregory Powell, Regional Supervisory Appraiser, from the Appraisals and Valuation Services Office (AVSO). The webinar explored changes to AVSO and looked at technical aspects of Indian land appraisals.
- ILTF webinar on appraisals
- Appraisals Webinar Presentation
- AVSO: Indian Trust Property Valuation Division website
May 11, 2021: The Basics of Estate Planning
It is critical for Indian landowners to take the legal step of writing a Will to control their assets and avoid potential family conflict. But there is more that can be done to protect your health and your children, and ensure that your other wishes are carried out after you are gone. Understanding the basics of preparing a comprehensive estate plan can help Native people simplify the process of passing their land, personal property and significant cultural items on to the next generation.
Nobody can prevent death, but we can prepare for it. Proactive estate planning means being prepared, and having a Will is a good place to start. A comprehensive estate plan should include more than just your Will. A good estate plan will simplify the probate process and allow others to act on your behalf. The following resources Will not only provide you with information on how to take the next steps, but will briefly explain the different choices you can make in preparing your estate plan.
The Indian Land Tenure Foundation (ILTF) recommends seeking guidance from an attorney who is knowledgeable about Indian probate. Finally, you should also pay attention to the probate rules of your particular tribal nation, the state where you live, and the federal government because each of them can have an impact on your estate after you pass away.
Important Concepts for preparing your Will
Why do I need a Will? – Whether you are 80 years old or 18, there are many good reasons to have a Will. Having a Will may save you time and money, and ensure your peace of mind. It enables you to give your property to the people you want to have it after you are gone. And having a Will can make the probate process happen more quickly and more easily.
- Click here to watch a video on this subject.
Witnesses for a Will – When executing a Will, you will need at least two witnesses who should be unrelated to you. For example, siblings and other immediate family members usually stand to benefit from a Will and, from a legal standpoint, would not be the best witnesses. A court could potentially void your Will if the motivations of the witnesses seem questionable.
- Click here to watch a video on this subject.
Self-proving affidavit – The person who is making a Will (legally known as the ‘testator’) is highly encouraged to include an ‘attestation provision’ within the document. A ‘self-proving affidavit’ within a Will, authenticates the testator’s mental capacity as verified by the two signing witnesses.
- Click here to watch a video on this subject.
‘Joint tenancy’ or ‘tenancy in common?’ –‘Joint tenancy’ and ‘tenancy in common’ provide each owner with the right to use or make decisions for the whole property, not just a specific piece of it. ‘Tenancy in common’ is the most well-known form of trust property ownership. It retains the ability to sell your interest in the land, or leave it to someone in a Will, without the consent of any other owner. ‘Joint tenancy’ with the ‘right of survivorship’ leaves the shared interest in property to the last living heir. It is important to know the difference between ‘joint tenancy’ and ‘tenancy in common’ and to clearly state your wishes in your Will. If a Will doesn’t specify the situation, the judge is required by law to give the land to your heirs as joint tenants.
- Click here to watch a video on this subject.
Disinheriting a spouse – ‘Disinheritance’ is a tool you can use in order to specifically prevent a family member from inheriting property. Disinheritance of a spouse is controlled by state law and can be difficult to accomplish.
- Click here to watch a video on this subject.
Disinheriting a child – Disinheriting a child in a Will can be difficult, both for personal and legal reasons, but it can be done. Omitted heir statutes give rights to all heirs, whether they are named in the Will or not. If the child is disinherited incorrectly, it may give them a claim to a share of the estate. An omitted heir statute does not apply if the child was omitted from the Will intentionally and in writing.
- Click here to watch a video on this subject.
Other strategies to complete your estate plan
Why do I need an ‘advance directive?’ – An ‘advanced directive’ for healthcare is a legal document that offers an efficient way to clearly make your plans for health decisions known even if you are unable to do so during a medical emergency. An ‘advance directive’ will help your loved ones advise medical personnel and make decisions consistent with your wishes.
- Click here to watch a video on this subject.
Why do I need a ‘Power of Attorney?’ – A Power of Attorney (POA) is an essential legal document that enables the principal to grant either broad or limited powers to another party known as an ‘agent.’ Powers are specific to financial or legal matters and may include tax preparation and filing, investment account management, representation in lawsuits, etc. Power of Attorney can be granted immediately or once the principal becomes incapacitated.
- Click here to watch a video on this subject.
Probate avoidance – Transferring certain assets outside of probate can be easier and more timely than going through the probate process. Financial assets, such as bank accounts, retirement accounts, and life insurance policies, offer the opportunity for you to name a beneficiary to receive your money. If you leave that line blank, those assets have to go through probate so that a judge can determine who will receive those assets. Some states, such as Oklahoma, may also provide for the transfer of non-Indian real estate and motor vehicles. A knowledgeable attorney can discuss the possibilities available to you in your home state so that you can make informed decisions.
- Click here to watch a video on this subject.
Legal/document examples from Oklahoma
- Advanced Directive for Healthcare Brochure (Oklahoma Bar Association brochure)
- Advanced Directive for Healthcare Form (Statutory form)
- Power of Attorney (Statutory form)
- Transfer on Death documents
Will in a Box – A free tool available for American Indians who own trust land in Montana, Minnesota and Oklahoma. This online resource can be used to plan or even create your Will. Scroll down this webpage and look for Will in a Box resources.
Click here to watch the May 25 Town Hall Q&A session on the Basics of Estate Planning.
March 9, 2021: The Basics of AIPRA
Understanding the American Indian Probate Reform Act (AIPRA) is vital for Native people because it spells out what the U.S. government will do with an individual’s Indian land when they die. If landowners don’t want a judge to decide what happens with their land, they need to understand AIPRA and how it works.
AIPRA is a uniform federal probate code that applies to most allotted reservations, although some 20 tribal nations and communities have their own federally-recognized probate laws or codes. It was enacted on Oct. 27, 2004 as an amendment to the Indian Land Consolidation Act (ILCA) of 1983 and is applied in the probate of trust assets for Indian landowners who died after June 20, 2006.
AIPRA defined and clarified a number of issues relating to the probate of estates and Indian land. As an amendment to ILCA it also promotes a federal policy to consolidate or reduce fractional ownership of Indian lands. It also removed Indian probates from state rules for inheritance.
AIPRA placed into law a rigid definition of eligible heirs that the Department of Interior must use when conducting a probate of trust assets. This is important whether and Indian landowner leaves a will or dies without one (intestate).
This often-overlooked part of AIPRA applies when a Native person with trust assets dies without a will. Landowners with highly-fractionated title (owning less than 5% or 1/20) who die intestate will be forced into this federal land consolidation policy at the expense of the heirs. According to law, the inherited land will not be evenly divided among the children, but will instead automatically go only to the oldest child. This issue is covered by the AIPRA law (§2206 Descent and Distribution).
- Click here for presentation slides on this subject.
Joint Tenancy Implied
Indians have become so used to fractional ownership that this change to the probate process can also come as a surprise to landowners who do have a will. The application of Joint Tenancy to ownership will stop many heirs from being able to transfer land to their children. This is covered by federal law, which can be found in §2206 Descent and Distribution.
A technical amendment to AIPRA was signed into law in December of 2008. It made a change to land ownership that further separates Indian land law from any other type of property law. The change has an impact on homes, barns, fences and other permanent changes to a property. This is covered by federal law, which can be found in §2206 Descent and Distribution.
AIPRA does not apply in the following tribes/communities with their own probate laws/codes:
- Alabama-Quassarte Tribal Town
- Cherokee Nation
- Chickasaw Nation
- Choctaw Nation
- Confederated Tribes of the Umatilla Reservation
- Fond du Lac Band of Chippewa Indians
- Kialegee Tribal Town
- Klamath Reservation
- Lake Traverse Indian Reservation (Sisseton-Wahpeton Oyate)
- Muscogee (Creek) Nation
- Nez Perce Indian Reservation
- Northern Cheyenne Tribe
- Osage Nation
- Seminole Nation of Oklahoma
- Spirit Lake Sioux Tribe
- Standing Rock Sioux Tribe
- Thlopthlocco Tribal Town
- United Keetoowah Band of Cherokee Indians
- Warm Springs Reservation
- Yakama Reservation
- Message Runner #2 (ILTF publication offering a more complete explanation of AIPRA)
- Public Law 108-374 (AIPRA)
- Eligible Heirs (a publication of Montana State University Extension)
- 25 US Code. Chapter 24 Indian Land Consolidation Act. §2206 Descent and Distribution
Will in a Box – Indian wills made easier
Your land may be the most important thing you own, but you won’t be able to leave it to your children if you don’t take action now. If you die without a will, it will be up to a federal probate judge – not you or your kids – to determine who will inherit your land after you have passed on, and it could take years to decide. ILTF is pleased to introduce a new tool that can make it easier for Indian landowners to have a will.
Will in a Box makes it easier to write a will
Developed by ILTF in conjunction with legal service organizations across Indian Country, Will in a Box is now available for American Indians who own trust land in Montana, Minnesota and Oklahoma, and we’re working on expanding to other states in the future. Hosted on the Law Help Interactive web platform, Will in a Box is free of charge to tribal members.
Click here to see a checklist of items you’ll need to have on hand to complete the Will in a Box process.
Click here to go to the Will in a Box website to begin writing your Indian will. (Site may take a moment to load)
TAKE CONTROL OF YOUR LAND AND YOUR FAMILY’S FUTURE!
Will Writing & Legal Services
Today, ILTF continues to build upon its estate planning and probate program by developing new, more efficient and cost-effective models for helping Indian people safely transfer their lands from one generation to the next. ILTF is currently working directly with qualified contractors throughout the country who provide specialized legal and will writing services and training to tribal members in the communities and on the reservations where they live. By providing services that reduce fractionation, and training that informs Indian people about the laws governing land ownership and transfer, ILTF empowers tribes and individual landowners to protect their land assets and preserve economic and cultural resources for future generations.
Partnering with local law firms
ILTF regularly utilizes grant resources in addition to its own resources to provide estate planning services. Partnerships with legal service providers are vital to addressing unmet needs. The scope of these projects has expanded to supplementing landowner options with policy development that make wills easier to complete, improves the probate process, and generates new forms of ownership that families can use to better manage and benefit from their land.