The American Indian Probate Reform Act of 2004

Kristina L. McCulley (Second-year student, University of Oklahoma College of Law) has recently published her Comment entitled The American Indian Probate Reform Act of 2004: The Death of Fractionation or Individual Native American Property Interests and Tribal Customs?, 30 Am. Indian L. Rev. 401 (2005-2006).

Here is the introduction to her article:

The public outcry protesting the Supreme Court’s recent expansion of Fifth Amendment takings jurisprudence in Kelo v. City of New London reflects the citizenry’s devotion to preserving the right of private property as an important American value. Although the ramifications of Kelo surprised most of the nation, Native Americans have long known the sting of injustice in having their property rights stripped away by the federal government with the approving sanction of the Supreme Court.  While the general population recovers from its shocked disbelief that the highest court in the nation would uphold the effective removal of personal property rights, Native Americans have suffered similar injustices for hundreds of years. Long before Susette Kelo ever filed suit, from the time of conquest to the present day, the federal government has enacted legislation and policies that have consistently taken both tribally held, and even individually held, land away from Native Americans. Native American tribes have consistently lost their lands through removal from their homeland, the allotment of tribal lands into individual parcels, and the escheatment of those individual lots back to the jurisdictional tribe or federal government.

This comment analyzes the effect of the American Indian Probate Reform Act of 2004, which became effective on June 20, 2006, on Native American probate law and proposes affirmative precautions tribes and individual Indians can take to retain control over the devisement of their property at death. Part I recounts the history of the allotment process from discovery to present day and explains the federal-Indian trust relationship and the two kinds of allotment land titles in Indian Country – those held in trust and those granted as restricted land. Part II addresses the ongoing problems and resultant effects of fractionation on Indians today. Part III explores Congress’s failed attempts to address these problems. Part IV analyzes the various provisions of Congress’s most recent solution, the American Indian Probate Reform Act of 2004 (AIPRA). Part V analyzes both the merits and demerits of the AIPRA, and Part VI proposes extra precautions and preventive measures that tribes and individuals can take to protect themselves against further loss of their lands upon death.