RAPID CITY, S.D. – Probate reform, as proposed by the Department of the Interior, has left as many questions as solutions for tribal leaders.
During the first of the final three consultation meetings to air concerns about the probate reform regulations being written by Interior before the regulations head for the Federal Register, members of the writing committee realized that some parts of the regulations had to be changed or revisited.
The regulations are to bring Interior into compliance with the American Indian Probate Reform Act, which in itself as was learned at the meeting was in conflict with other federal acts.
Probate reform was proposed as a result of the Cobell v. Kempthorne case to streamline the process and reduce the fractionation of land that makes it increasingly difficult for the BIA to administer.
Tribes are encouraged to pass tribal probate codes, even while some tribal constitutions prohibit such codes and some tribes spend years trying to get the codes passed.
The Oglala Sioux Tribe, according to Councilman Lydia Bear Killer, said the OST probate code was sent to Interior in 2001 and has not yet been approved.
“It was put on the back burner. We were told they were waiting for a uniform code. The tribes should write codes and the Department of Interior accept them. I am questioning this consultation process,” Bear Killer said.
Her comments were echoed by many tribal officials, under many categories. Tribal members are now encouraged to write wills, even though the BIA is out of the business of storing or assisting in the writing. Some cultures prevent the individuals from writing wills because to talk about such matters means the person may bring on the end of life, Ken Davis, chairman of the Turtle Mountain Band of Chippewa, said.
Davis also said that the non-IRA constitution of the Turtle Mountain Band does not allow a probate code to be written.
Office of Hearings and Appeals Chief Judge Earl Wait said in the case of Turtle Mountain, the constitution may have to be amended.
AIPRA is in conflict at times with tribal constitutions and codes. An example is with the Ute Mountain Ute Constitution, which requires ordinances be disapproved by the BIA within 90 days but AIPRA allows 180 days. The Ute Constitution would be violated if any probate code is not approved within 90 days by the BIA.
AIPRA and Interior regulations were criticized as more beneficial to the BIA than to American Indians. Many people at the consultation meeting told the Interior officials present that American Indians can decide for themselves what is best when it comes to land acquisition through probate.
“This is helping the BIA, not helping Indians. It is not making the lives of Indians better,” said John Berrey, chairman of the Quapaw Tribe of Oklahoma.
Tribes are interested in regaining the land that was taken by congressional action and by sales to non-Indian land owners. The new AIPRA is designed to assist in that process, but has some problems when it comes to the definition of American Indian and that heirs can be no more than two degrees removed from the decedent.
Alex White Plume, president of the Oglala Sioux Tribe, said he was concerned about the definition of American Indian because on his reservation, a non-Indian inherited an acreage that is now causing some trouble.
“I see that a non-Indian can inherit land; this will continue the colonization,” White Plume said.
Wait said the regulations written by Interior allow for a person who may be a descendant, but is not an enrolled member, to inherit land.
On many reservations the majority of land is not controlled by the tribe. On the Pine Ridge Reservation, only 49 percent of the land is under tribal control.
According to Wait, AIPRA allows tribes to purchase small parcels of land even without an owner’s approval if the land represents under five percent of the allotment. This practice is in place to create a land base that is use able and may be owned by the tribe.
If a non-Indian is married to an American Indian who owns the land, he or she can only be allowed a life estate, under which that person must maintain the land and operation of the land properly.
Still, the consultation process that has taken place does not reflect all tribal concerns: each tribe or organization places some parts of the regulations into important categories. John Dossett, attorney for the National Congress of American Indians, suggested a timeline when probate is sent to the BIA for processing.
Because some cases take years to complete, there is a backlog of probate that may go back more than seven years. He suggested a timeline to get the probate cases into the system earlier.
“Six years ago that was discussed to reduce the number of probate cases, but they have not been reduced,” he said. Some probate cases go back nearly 40 years.
The panel’s answer was that the issue was discussed and rejected because some cases are more complicated than others and can’t be done within a certain time frame. That means that maybe the original heirs are also deceased and the cases are made further complicated.
AIPRA does not allow land or an estate to be inherited by a child who was adopted out of the family. The child could inherit from a grandparent only if the grandparent maintained a connection to the child.
That rule is in conflict with some state and tribal codes. And AIPRA is in conflict with the Indian Child Welfare Act, as Marianne One Star, Cheyenne River Sioux Tribe, pointed out.
ICWA allows that children who are adopted out of the family can still inherit assets from the biological parents. AIPRA and the newly proposed Interior regulations consider an adopted-out child to be part of the adopted family. This will prevent the child, who may discover some heritage and return to his family’s home, from inheriting what may rightfully belong to them.
Members of the Interior committee suggested that this issue may have to be looked at more carefully and, since the two acts conflict, Congress will have to resolve the conflict.
“My point is not whether Congress noticed or not. AIPRA came out of Interior and they should have noticed,” said Michael Jandreau, chairman of the Lower Brule Sioux Tribe.
“Tribes are not responsible to make sure laws are not
Some portions of the proposed regulations were obviously written with the consideration of input from tribal officials, but some portions of the regulations did not consider tribal input at all, tribal officials pointed out.