Symposium targets Indian land inheritance
By JODI RAVE
Lee News Service Saturday, March 31, 2007
MISSOULA, Mont. -- It's typically not hard to figure who owns land and how to pass it on to the next generation -- except when it comes to individual land ownership in Indian Country.
Some of the country's leading experts on individual Indian trust lands are scheduled to meet at Montana State University in Bozeman on April 12-13 to discuss how a recently enacted federal law, the American Indian Probate Reform Act, affects land inheritance, ownership and land consolidation.
Indian trust lands have been managed by the Interior Department and its Bureau of Indian Affairs for more than a century.
"The process is slow and burdensome," said Doug Nash, director of The Institute for Indian Estate Planning and Probate at Seattle University School of Law. "It begins with the BIA compiling a file once they are notified of someone's death."
In some cases, the process of determining ownership and inheritance matters is backlogged in federal courts by as much as a decade, said Nash.
And now, the new probate reform act is changing the rules of inheritance since it went into affect last June. The act is supposed to help monitor Indian land holdings and to simplify land ownership issues. Ernestine Werelus, a co-manager of the Fort Hall Landowners Alliance in Fort Hall, Idaho, said the act remains misunderstood by those who should know it best, including federal judges, Bureau of Indian Affairs clerks and individual landowners.
"If somebody passes away without a will, if they do, this act takes over," said Kristin Ruppel, an assistant professor at Montana State University. "It directs what happens to the inheritance of that person's trust lands and money. Anything held in trust by the federal government is affected by it."
About 95 percent of Indian landowners have been dying without wills, further complicating a historically disheveled government-run system. Mismanagement of individual trust land has led to "fractionated" land holdings and to the largest class-action suit ever filed against the federal government. The Elouise Cobell vs. Interior Secretary Dirk Kempthorne suit is approaching 11 years of litigation.
The Indian Land Tenure Foundation in Little Canada, Minn., created The Institute for Indian Estate Planning and Probate to help Indian landowners and tribes manage estate planning projects in the Northwest, Midwest and Great Plains region.
"We're the only program that does this in the nation," said Cecelia Burke, deputy director of The Institute for Indian Estate Planning and Probate.
The Bozeman symposium is being organized to assist tribal leaders, legal experts, landowners and others with probate reform issues, which are closely tied to fractionated land problems where, in some cases, thousands of Indians inherited a single acre of land.
When Werelus's brother died, he left a will designating who would inherit his trust land in Idaho. But even then, a will didn't help because the federal judge overseeing the probate process didn't fully comprehend probate or land consolidation laws, Werelus said.
"He doesn't understand allotment, so, it's been a mess," she said.
It's estimated that not a single probate has been settled under the new probate reform law.
Even so, the act has several positive provisions, said Burke. It attempts to keep land in federal trust status. It allows tribes to develop their own tribal probate codes and it promotes land consolidation. But, "it has some punitive provisions that can subject land owners to sales without their consent," she said.
The Interior Department is still trying to recover from unconstitutional laws passed more than two decades regarding land consolidation efforts.
"Indian people and tribes are pretty savvy about the laws that govern their existence," said Nash. "But here we have a federal statue that is 44, 45 pages long and is pretty complicated. We try to help tribal members and officials get a hand on what this law is and how it works."
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