A tribal code will trump AIPRA, the legal advisers said. So when a tribe
writes a probate code the authors must be specific about the focus of the
code so that judges will not have to guess at the code's intent. The focus
may be on all property, land and personal; it may be just on trust land, or
a combination of many things; but it must be specific, Winnebago Tribal
Judge Marcel Greenia said.
The Oglala Sioux Tribe is writing a second probate code that includes only
trust land. The first probate code was sent to the secretary of the
Interior Department for approval in 2002 and after the obligatory 180-day
waiting period passed with no response, in accordance to regulations, the
tribe assumed the code was enacted. A subsequent legal issue discovered the
code was not in force because the secretary neglected to certify the Indian
Land Consolidation Act of 2000.
The code must also contain details about what is important to the culture.
In accordance with their culture, families will make a distribution of
personal items after the death of the decedent; however, those items are
actually part of the probate and shouldn't be given away before probate is
complete. A tribal code can include that part of the culture and remove
personal items from probate.
The tribal code can also deal with small estates, and either acquire the
land for the tribe with life-estate privileges given to the occupants or
make other arrangements with the family.
The Blackfeet Tribe has the right of first refusal for land, said William
Talks About, tribal council representative and traditional leader. But, he
added, the tribe is poor and can't afford to pay what the non-Indian buyer
is willing to pay for the land. Therefore, the land is turned over to
outsiders and more land is lost to the tribe.
A question about who is or is not an American Indian is up to the tribes to
decide, according to the Supreme Court. But AIPRA specifies that the person
must be an enrolled member of a federally recognized tribe or eligible for
enrollment. The question of what a tribe can do in a probate code to change
that rule puts the tribes in an arguable position, Greenia said.
"I am always in awe of how laws are put upon us without our consultation,"
Talks About said. "On the Blackfeet Reservation we lose land to non-members
and to members who have no relationship with the family.
"We need to implement traditional law in our probate. We need to listen to
the elders. They know who is entitled to the land."
Eleanor Baxter, chairman of the Omaha Nation of Nebraska, said many
grandparents were sent letters upon which to place their "X" and that they
received some money for the land.
"That's what we knew growing up," she said. "We can make our laws better."
Now, she said, the Omaha Tribe has a lengthy wait for a judge to arrive to
deal with the probate.
She said they are told to make wills, but in the Omaha culture, the belief
is that a person invites death when dealing with such matters as wills.
The Omaha Tribe is in the process of writing a probate code. The Omaha has
clanships, which have different purposes than the tiospayes of the Lakota
culture. Considerations for these aspects of the cultures should be
included in the codes, legal experts said.
Sacred sites should also be made part of the tribal probate code. There are
many such sites on the Blackfeet Reservation, Talks About said. "Even tipi
rings are sacred: someone prayed on that site," he said.
He said that the grandfathers who are buried in the land are still
protecting the land and they must also be protected.
The strong need for extended family to be involved in any tribal probate
code is important. But the question is, can this be protected within the
guidelines of AIPRA? "Yes," is the answer given by legal advisers.
Tribes have until June 20, 2006 to decipher AIPRA and thereby come up with
plans that are tribally specific. All parties involved want fractionation
to stop, and that is the goal of AIPRA; and most tribal codes that have
been written have the same goal while protecting the tribe's interest in
Sisseton-Wahpeton in South Dakota and the Ho-Chunk in Wisconsin are just
two of the tribes in the Midwest and Great Plains that have written probate
codes. Rosebud in South Dakota, the Oglala Sioux, the Winnebago of
Nebraska, the Blackfeet and the tribes at Fort Peck are all in the process
of completing tribal probate codes.