Estate Planning for Native Americans

Douglas R. Nash (Director, Institute for Indian Estate Planning and Probate) and Cecelia E. Burke Cecelia E. Burke (Deputy Director, Institute for Indian Estate Planning and Probate) have recently published their article entitled The Changing Landscape of Indian Estate Planning and Probate: The American Indian Probate Reform Act (AIPRA), 5 Seattle J. for Soc. Just. 121 (2006).

Here is the conclusion of their article:

AIPRA represents a major change in the law applicable to Indian lands, wills, and the probate of those wills. Although currently in effect, AIPRA does not represent the final iteration in the law that Indian people and attorneys will have to learn. Congress has already passed two bills containing technical amendments. A third technical amendment bill is currently being developed. This amendment process underscores the complexity of AIPRA and is necessary because of the many impacts and implications that were unforeseen or unintended when the initial version was passed.

In addition, the federal regulations that will implement AIPRA are not yet finalized. After having undergone a preliminary review and consultation with Indian tribes, individuals, and organizations, the proposed regulations were published on August 8, 2006. Public comments on these draft regulations were due by October 10, 2006, but were extended another sixty days. The Department of the Interior will consider comments received and then formulate a final version of the regulations which will then govern Indian wills and probate. This process is of major concern because, while Congress passed the law, it is the current administration that will develop the regulations that implement it. The current administration has consistently sought to reduce services to Indian people, limit its trust responsibilities to Indian tribes and people, and to utilize opportunities like this to reduce its workload and costs.

The evolution of AIPRA will continue. There may well be a need for further amendments to AIPRA, both technical and substantive. Likewise, there may be a need for amendments to the regulations after they become final. The need for changes will be identified as part of the learning process as AIPRA and other regulations are used and applied and, potentially, from litigation that challenges the validity of provisions of AIPRA, the implementing regulations, or their interpretation.

For the present, the message is clear. Indian tribes need to consider, and act on, the options that are made available under AIPRA for the development of tribal probate codes and the acquisition of fractionated ownership interests. And, more importantly, individual owners of undivided interests in trust and restricted lands need to make informed decisions about how they want to pass those interests to future generations.