Tribal Government Information

The American Indian Probate Reform Act of 2004

The Act was passed by Congress October 27, 2004 and became effective June 20, 2006. The American Indian Probate Reform Act (AIPRA) changes the landscape of federal laws governing the descent, distribution and consolidation of federal trust property. The Act removes the application of state intestacy laws and creates a federal probate code. AIPRA contains provisions for voluntary and involuntary land consolidations and sales both inside and outside of probate. The Act expands tribal authority to draft tribal probate codes which may supersede provisions of the Act, and makes will drafting and estate planning for individuals important.

On December 2, 2008, a third technical amendment was signed into law by the President. For a redline version to see the changes in AIPRA view the Amended Act Redline.

Highlights of changes:

2201(7) - land has been redefined, removing permanent improvements from its definition. Homes built on trust lands where the owner has an underlying interest are now covered in 2006(a) intestate and 2206(h) testamentary.

2206(b)(2)(B) now provides IRA tribes the authority to enact resolutions, codes or laws to permit the devise of trust property out of trust status and into fee status to a non-Indian devisee. Without tribal resolution or enactment, the Act itself prohibits devises of IRA lands in fee to non-Indians.

2206(o) removes provisions for auction of trust lands at probate and provides for sales only. If there are multiple purchasers, the heir will choose who buys the interest. 2206(o)(3)(B). Adds required consent of surviving spouse as well as heirs.

2206(o)(5) now measures the interest of the decedent, not the interest that the heirs were to receive. This eliminates the potential forced sale of interests greater than 5% at probate.

2206(o)(5)(iii) forced sales at probate - limits purchasers at probate for sales without consent of heirs only to tribe with jurisdiction or Secretary, and only if the heir or surviving spouse is 1. not residing on that parcel at time of decedent's death, or 2. is not a member of the tribe, or 3. is not eligible for enrollment with the tribe where the land is located.

The Code of Federal Regulations Implementing AIPRA

The federal rules implementing the American Indian Probate Reform Act were finalized and published November 13, 2008.

The new regulations include: 25 CFR Part 15 Probate of Indian Estates, 25 CFR Part 18 Tribal Probate Codes, and 25 CFR Part 179 Life Estates and Future Interests. 43 CFR Part 4 Department Hearings and Appeals Procedures, and 43 CFR Part 30 Indian Probate Hearing Procedures.

Tribal Probate Codes

The Tribal Probate Code Matrix provides brief descriptions of existing tribal probate codes, including information on their scope, provisions and web links for viewing the codes.

Examples of Secretarial Approved AIPRA Tribal Probate Codes are being compiled (April 2009).

Department of Interior Updates

The Widdoss Report - This report describes the recommended approach to be taken by BIA appraisers for trust land interests, including deep discounting in value for fractionated trust land interests.

Analysis of Widdoss Report - An Article discussing application and outcomes for discounting recommended by the Widdoss Report.

Tribal Leader Letter on Probate Codes - March 1, 2007 DOI Letter to all Tribal Leaders announcing the Departments intention to suspend all tribal probate code review and approval until the Department develops its own model probate code.

Federal Probate Process

Judge Yellowtail's Overview of the Federal Probate Process — The attached presentation was given at the Institute's AIPRA training in Rapid City, SD, July 2006

Excerpts from The Little Red Probate Book by Sally Willett © 2005 — Materials and charts given at the Institute's AIPRA training in Seattle, WA, March 2006

Government Publications