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Estate Planning in Indian Country

October 17, 2016


Assets owned by Native Americans (“Indians,” per Section 25 of the United States Code),  present unique issues in estate planning.  Assets such as Indian trust land and trust income accounts are subject only to federal probate, while other assets are subject to either tribal probate or state probate, depending on the domicile of the decedent.  In order to understand why the federal government is involved in Indian probate at all, we must first understand its relationship to Indian lands.

In an effort to end communal land ownership structures of tribes and open up reservations to non-Indian settlers, Congress passed the General Allotment Act in 1887.  Under the Act, reservations were divvied up and allotments were granted to individual tribal members.  These allotments were held in trust by the federal government for a period of 25 years, or until the individual Indian was deemed “competent” of managing their own affairs.  Income from trust allotments, such as income from oil and gas leases, is to the Bureau of Indian Affairs (BIA) and held in an Individual Indian Money (IIM) account for the benefit of the allottee.  In the years following the General Allotment Act, so much allotted trust land was lost to non-Indians that Congress extended the trust period indefinitely. 

Congress also enacted a series of Indian probate laws to effect the transfer ownership of Indian trust property and IIM accounts to the heirs of deceased allotment owners.  In 2006, Congress passed the American Indian Probate Reform Act (AIPRA), which was intended to overhaul Indian probate and fix flaws found in previous Indian probate legislation.  Among the many provisions of AIPRA, the law also established new rules for intestate succession of trust property, and required that trust property descend according to tribal law (if any).  There are also specific requirements for wills that are admitted to federal Indian probate.  The Indian probate process starts with filing to the BIA or tribal probate office, and hearings are conducted by judges from the Department of Interior Office of Hearings and Appeals.

Only Indian trust land and IIM accounts are subject to federal probate.  All other Indian-owned assets, such as bank accounts, cars, and homes, are subject to probate in other courts.  If the decedent was domiciled on the reservation, the tribal court has jurisdiction to hear the matter, applying tribal law to the matter.  In the event the tribe does not have a tribal probate code, the tribal court may apply state law.  State courts may have jurisdiction over the matter when the decedent was domiciled off the reservation, or where the decedent was domiciled on the reservation and the state court has civil jurisdiction under Public Law 83-280.


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