Estate Planning

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.

New online 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 and 4th 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.

 

LANDOWNER INFORMATION

The following information for landowners is organized by the date it was distributed via email. Please email jwabindato@iltf.org if you would like to be added to the distribution list.

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.

The Law

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.

Eligible Heirs

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).

Single-Heir Rule

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.

Permanent Improvements

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 Exclusions

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

Additional Resources

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.

 

INDIAN LANDS IN INDIAN HANDS