The “Inheriting Indian Land” symposium was organized in response to the American Indian Probate Reform Act that went into effect last June. The complex law affects tens of thousands of people and is heavily dependent on Natives making a will in order to pass their land onto heirs.
Already, the U.S. Interior Department and its Bureau of Indian Affairs have a backlog of 30,000 probates, and the backlog continues to grow despite a massive multimillion-dollar reform effort.
In 1996, the probate backlog was only 3,000, said Willett, who questioned why it was costing the Interior Department hundreds of millions of dollars to “not do anything.”
The reform act is an amendment to the Indian Land Consolidation Act, which twice has been declared unconstitutional. It was first introduced to eliminate fractionated land holdings, which is land passed from one generation to the next resulting in dramatic numbers of landowners on small tracts of land.
Willett said the new probate reform law is complicated - and is, in fact, a lawsuit waiting to happen because landowners or their survivors aren't being financially compensated for their property.
“This bill taxes experts,” Willett told the audience. “If you're struggling, you're not alone.”
Meanwhile, the backlog continues to build because the Bureau of Indian Affairs quit making wills for Indian landowners in 2006. The announcement was made without warning and instantly put tribes into the business of will writing and estate planning, something they weren't prepared to do.
“They don't have the expertise or the legal reserves,” said Dion Killsback, a lawyer in Lame Deer. “The decision was counterintuitive. The Department of Interior and the Congress passed this law to address fractionation, but the tool to prevent that is wills. But the BIA stopped doing wills, putting the burden on tribes.”
Even then, only 10 percent of Natives signed a will. Under the American Indian Probate Reform Act, it becomes ever more important to create a will, especially if the property interest owned is less than
5 percent as in the following cases:
n First, if a will doesn't exist and a spouse is living on the property, the estate ends when the surviving spouse dies. “The single heir rule” becomes effective, meaning only one person can inherit the land, an oldest child, oldest grandchild or oldest great-grandchild.
n Also, if there is no will or eligible heirs, then the property interest passes to the tribe without any payment to the estate.
The Interior Department manages $226 million in annual receipts from 128,000 individual allotments. As written, the probate reform act could lead to the loss of 1/5 of Indian land holdings, including nearly
11 million acres of allotted lands.
Symposium presenters encouraged participants to be more proactive about managing their land and protecting their rights as landowners. Key presenters represented organizations such as the Indian Land Working Group and the Indian Land Tenure Foundation.
Ross Racine, executive director of the InterTribal Agricultural Alliance in Billings, said 80 percent of crop land being grown on Indian allotments was being leased by non-Natives. He encouraged students attending the symposium to take a more active role in preserving tribal land bases and making it more economically profitable.
“Every presenter in this forum has gray hair,” said Racine. “It's time kids, the guard is changing. You need to pick it up. It's a hell of a responsibility and it's going to be your charge. Be diverse and be open to ideas.”
Reach reporter Jodi Rave at 800-366-7186 or jodi.rave@lee.net
On the Web
For more information on the American Indian Probate Reform Act or will and estate planning, go to these web sites: http://www.indianlandtenure.org/
http://www.ilwg.org/ or go to www.indianwills.org
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