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New probate law will create new problems

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RAPID CITY, S.D. -- A new probate reform act designed to eliminate future
fractionation of land is not an end-all and be-all: while it stops
fractionation, it creates additional problems that tribes argue will
infringe on their sovereignty.

The American Indian Probate Reform Act of 2004 goes into effect on June 20,
2006. Tribes need to prepare codes and learn what is involved in the act
before the effective date, or the tribes and tribal members may lose even
more land.

The federal government is conducting learning sessions to pass along
information that will help tribes and attorneys understand the act's
conditions. AIPRA, as it is called, takes precedent over state probate
laws, to which many tribes were subjected or which they chose to use in the
past. AIPRA does impose some restrictions for passing land or property to
heirs that may not always be acceptable to tribal culture and mores, and
may not always be in the best interest of the family.

AIPRA requires that any land held in trust can only be awarded to heirs who
are members of or are eligible for membership in a federally recognized
tribe. If the heir does not qualify for membership the land can be
transferred, but must be taken out of trust and turned into fee land,
thereby putting it on the tax rolls. Many times the heirs cannot pay the
taxes, and so the land is sold for taxes to anyone.

Tribal leaders say AIPRA does not address specific cultures in Indian
country. For example, the Assiniboine language has no word for nephew,
niece, uncle or aunt because in that culture, a person's mother's sisters
are that person's mothers, and likewise on the father's side. Therefore the
specific language of first-, second- and third-degree descendancy does not
always apply in the Assiniboine case.

Adopted children are also an issue. In many tribal cultures, children are
adopted according to historic customs. Some children are raised by their
grandparents, but as that may not be recognized by AIPRA, the land or
property to be inherited in trust may be disallowed.

In the Stockbridge-Munsee culture in Wisconsin, a person who lives with or
is married to a tribal member and lives on the reservation is understood to
be an Indian. AIPRA has a specific definition of "Indian."

Tribes are advised to write specific probate codes that reflect the culture
and also to be precise about what it is the tribe wants to accomplish. A
tribe can spell out in the code what it hopes to accomplish. It can be
broader and incorporate all land within or on the outside of the boundaries
but owned by tribal members, or deal with only trust land.

What the tribe must do is keep within the guidelines of AIPRA, said Marcel
Greenia, tribal judge of the Winnebago Tribe of Nebraska.

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"The law looks good in black and white, but when people are involved it
changes," Greenia said.

Probate in Indian country is a much more complicated legal tangle than in
the non-Indian community; wills, which are recommended to solve probate
issues, become more complicated and involved as well. Trust land, fee land,
life estates, tribal law, federal law and state law all play a roll.

AIPRA addresses non-Indian spouses who can inherit only one-third of the
revenue generated by the land, but not the land itself. The spouse can be
awarded a life-estate and live on the property. Other descendants, possibly
children, will inherit two-thirds of the income and all the property
rights.

If a person owns only 10 percent of an original allotment and has three
children that inherit the property, those three children would own less
than five percent. That means the children's inheritance can be purchased
at probate without their consent. Usually tribes buy the land, but other
people can also purchase the property.

The result is that if a person owns only 10 percent of an allotment they
should not have more than two children.

The 5 percent rule is designed to eliminate the large numbers of people,
sometimes near 1,000, that own a small parcel of land, which complicates
the administration and reconciliation of Individual Indian Money accounts.

Another complaint brought up at the information meeting was the fact that
AIPRA treats all American Indians the same: one size fits all, so to speak.

"There are serious problems with AIPRA, Greenia said.

Having said that he added that if tribes want to maintain sovereignty and
allow tribal members to transfer land to spouses and children, they will
have to work within the constraints of AIPRA to write tribal probate codes.