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’s American Indian Law Clinic developed and presented community education materials designed to explain AIPRA’s 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 and Fractionation

What Is Allotment and Why Was AIPRA Necessary?

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, ‘surplus’ 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” x 11”  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 ‘escheat’) 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.

History of AIPRA - Adobe PDF file

AIPRA Nuts and Bolts

AIPRA was enacted in 2004, in part to address issues ILCA had not yet resolved. AIPRA continued to build on Congress’ 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’ most recent attempt to solve the fractionation problem. AIPRA builds on ILCA’s 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’s 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).

AIPRA PowerPoint - Microsoft Powerpoint presentation

Impact on Land Owners

One of the most important things for land owners  to know is about writing a will.  If  owners of interests in allotments held in trust do not write a will, their land  may pass to unexpected people.  While  land owners may want their land to pass to a niece or great-grandchild (or  non-relative), for example, AIPRA’s provisions regarding intestate (without a  will) inheritance do not recognize these individuals as heirs.  Landowners who write wills are in the best  position to ensure that their wishes are carried out when they pass on.

Locating Your Land

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’s 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.

BIA IIM Form - Microsoft Word document

BIA ITI Form - Microsoft Word document

Legal Assistance

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’s  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 land owners 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.

Non-AIPRA Tribes

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.

  1. Yakama Tribes – P.L. 91-627
  2. Nez Perce Tribe – P.L. 92-443
  3. Standing Rock Sioux Tribe – P.L. 96-274
  4. Sisseton Wahpeton Sioux Tribe – P.L. 98-513
  5. Warm Springs Tribe – 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 (www.indianwills.org)  has a link to the current AIPRA provisions, including those related to these  tribes’ probate laws.

Video Presentation

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.

PowerPoint Presentation

AIPRA Video

Resources

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. Estate Planning Questionnaire

Indian Land Tenure Foundation www.indianlandtenure.org

Indian Land Working Group www.ilwg.org

Institute for Indian Estate Planning and Probate www.indianwills.org

Dakota Plains Legal Services www.dpls.org

Indian Estate Planning Project/Northwest Justice Project www.nwjustice.org

Glossary of Terms

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 – or  hundreds – 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.