AIPRA
AIPRA Community Education Project
The American Indian Probate Reform Act (AIPRA) took effect in June, 2006 and affects the land interests of thousands of American Indians across the United States. Through a grant by the Colorado Bar Foundation, the University of Colorado Law School鈥檚 American Indian Law Clinic developed and presented community education materials designed to explain AIPRA鈥檚 key provisions and help community members and legal practitioners in the estate planning process.
In April of 2006 American Indian Law Clinic student attorneys presented two community education seminars for Metro Denver and Durango-area American Indian residents and attorneys. This web site provides its visitors, both lay and legal professionals, with information on AIPRA, materials and tools to assist in inquiries about land interests, and links to other AIPRA resources.
Allotment
The General Allotment Act of 1887 (Allotment Act) initiated the policy of Indian land allotment by authorizing the President to allocate plots of land on Indian Reservations, to Indian individuals and families (allottees). Allotments were held in trust by the government for their American Indian recipients. This meant, in part, that the land could not be sold and was exempt from state property taxation. After the allotment phase, 鈥榮urplus鈥 land on Indian Reservations was sold to non-Indians to settle and cultivate. American Indians lost over two-thirds of their tribal land through this process. Allotment was seen as a way to assimilate American Indians into mainstream white farming culture and to do away with traditional tribal ways of life.
Under the Allotment Act, the land of deceased allottees passed to their heirs according to the laws of the state where the land was located. In 1910, Congress passed a law that allowed American Indian allottees to pass their land on to their heirs by will. Despite this change in the Allotment Act, however, few American Indians wrote wills. This intestacy led to problems with fractionation.
Fractionation
Under the Allotment Act, heirs (those who inherited by intestate succession) took land as tenants in common, holding undivided shares of the same piece of property. With each generation of heirs, the shares got smaller and smaller. Today, some of the original allotments are held by so many heirs that shares are as small as a piece of 8鈥 x 11鈥 paper. Additionally, because the land was held in trust by the federal government, the small land interests could not be sold or consolidated among the land holders and so was effectively useless for them.
Congressional Action
Over the last century, Congress has acted several times to try to remedy the fractionation problem. The Indian Land Consolidation Act of 1983 (ILCA) was designed to remedy fractionation by authorizing tribes to adopt plans for consolidation of tribal lands thorough purchase, sale or exchange. Tribal land consolidation plans required approval by the Secretary of the Interior. While ILCA addressed some of the fractionation problems inherent in the Allotment Act, it did not fully resolve issues related to intestacy.
In response to this congressional action, some tribes and tribal members challenged ILCA because, in part, it allowed for very small fractionated interests to revert (or 鈥榚scheat鈥) to the tribe without compensating the owners of these small interests. Over the next several years, there were additional amendments and court challenges surrounding ILCA. For more information regarding these court challenges and amendments, see the link below, History of AIPRA.
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AIPRA was enacted in 2004, in part to address issues ILCA had not yet resolved. AIPRA continued to build on Congress鈥 commitment to tribal self-determination by empowering tribes to design their own solutions to fractionation issues. Principally, AIPRA creates a uniform probate code for writing wills and specifies rules for intestate inheritance of interests in allotted lands held in trust.
AIPRA is Congress鈥 most recent attempt to solve the fractionation problem. AIPRA builds on ILCA鈥檚 land consolidation goals, and represents an effort to change the way these trust lands are administered. In particular, AIPRA:
- Creates a new federal probate code which applies to all interests in allotted lands held in trust.
- Enables American Indian tribes to develop tribal probate codes which, upon approval by the Secretary of the Interior, supersede AIPRA鈥檚 federal probate code.
- Addresses intestate fractionation by limiting intestate inheritance of fractional interests smaller than 5% to a single eligible heir.
- Permits the voluntary and involuntary sale of highly fractionated land parcels upon the request of a tribe or tribal member who wishes to buy the interest.
- Defines eligible heirs as family members within two degrees of consanguinity (parents, children, siblings, grandparents and grandchildren).
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Some American Indians who have interests in allotted lands held in trust may not know what types of land (or mineral) interests they have. When thinking about how to transfer ownership of land interests or getting ready to write a will, owners of interests in allotted land held in trust can do one of two things to determine their land interests.
First, land interest owners can call or write the Bureau of Indian Affairs to request a copy of their Individual Trust Inventory Record (ITI) which is a detailed account of the land interests they own. At the same time, they can request a report on their Individual Indian Money Account (IIM), which is a federal Indian money account accrued by income from their land interests.
Contact Bureau of Indian Affairs Realty Offices
BIA Realty Offices (located on most American Indian Reservations throughout the country and at all Regional Offices) are equipped to take requests for ITI and IIM reports. When requesting these reports, American Indians must request them on their own behalf, sometimes in writing and sometimes over the phone, depending on the office. Included in the links below are templates for ITI and IIM requests. Please note that some Realty Office staff will process the reports simply by the American Indian verbally requesting the reports, while other Realty Offices require the request in writing, signed by the requestor (and in some cases, with a copy of a photo ID or notarized signature on the request).
Reviewing the ITI and IIM reports is important in order to identify any inaccuracies or incomplete inventories. Upon review, if there are any inaccuracies it is important to contact the Office of the Special Trustee.
Call the Office of the Special Trustee
The Department of the Interior houses the Office of the Special Trustee, which is charged with managing individual American Indian鈥檚 land interests and income from those lands. The Office of the Special Trustee, like the BIA Realty Offices, can also generate the ITI and IIM reports upon request. The Office of the Special Trustee can be reached toll free at 1-888-678-6836.
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Writing a will can be a challenging process. While some organizations provide general information about writing a will under AIPRA, many owners of interests in allotted lands held in trust may want to consult with an attorney who is experienced in federal Indian law generally and who is familiar with AIPRA鈥檚 requirements for writing a valid will. While the American Indian Law Clinic is unable to help American Indians to write wills, there are a few resources on this page that may help land owners.
There are several questions that landowners can ask to find out if an attorney has the right kinds of experience to assist him or her with writing a will. Some organizations, such as Dakota Plains Legal Services, currently assist trust land owners to plan for probate, will writing and trust land management. Other organizations, like the Indian Estate Planning Project, have created template wills for land owners interested in writing a will. For more information from these organizations, see the Resources page for their web sites.
Below are two links which also may help land owners in this inquiry. The first is a series of questions to ask an attorney before retaining him or her to help with an AIPRA will. The other is a list of attorneys and legal offices in Colorado who may be able to help with writing a will.
There are five tribes which are unaffected by AIPRA. These five tribes have their own specific probate codes laid out by Public Laws promulgated by Congress.
- Yakama Tribes 鈥 P.L. 91-627
- Nez Perce Tribe 鈥 P.L. 92-443
- Standing Rock Sioux Tribe 鈥 P.L. 96-274
- Sisseton Wahpeton Sioux Tribe 鈥 P.L. 98-513
- Warm Springs Tribe 鈥 P.L. 92-377
For more information on the probate laws for these five tribes, look at the specific Public Laws which control their probate and will writing processes. The Institute for Indian Estate Planning () has a link to the current AIPRA provisions, including those related to these tribes鈥 probate laws.
In November 2008 the American Indian Law Clinic traveled to Ignacio, Colorado, and presented a workshop for the Southern Ute tribal community on will drafting and estate planning. The video presentation, "Planning for the Seventh Generation: A Will Drafting and Estate Planning Workshop" and the accompanying Powerpoint presentation can be found below.
There are several organizations that have focused their efforts on understanding the impacts of fractionation, Indian land tenure and AIPRA. For more information on these subjects, please visit the links below.
The following questionnaire developed by the University of Colorado American Indian Law Clinic will assist a person in collecting the necessary information for drafting a will and other estate planning documents.
Indian Land Tenure Foundation
Indian Land Working Group
Institute for Indian Estate Planning and Probate
Dakota Plains Legal Services
Indian Estate Planning Project/Northwest Justice Project
Allotment
The process of dividing up and assigning parcels of reservation land to American Indian tribal members (allottees) as private property. Allotment began in 1887 with the passage of the General Allotment Act. Allotment ended only after American Indian tribes had lost over 2/3 of their tribal land base.
Fractionation
Since the allotment period, original allotments have been divided up many times over when land owners pass on and their land transfers to their heirs, resulting in original allotments now being owned by dozens 鈥 or hundreds 鈥 of descendants of the original allottees. Fractionation renders many allotments unusable by their current owners.
Inalienable
Status of allotments, which meant that the allotments could not be sold or gifted by their owners.
Intestate
People who die without a will are said to be intestate. Intestacy refers to the same status, without a will.
Trust land
Land held in trust by the federal government on behalf of tribes and tribal members. Allotments are held in trust by the government. These lands cannot be taxed by state or local governments and trust land owners are limited in how they can transfer this land.
