Note on The American Indian Probate Reform Act
On October 27, 2004, President George W. Bush signed into law the American Indian Probate Reform Act (“AIPRA”), instituting a sweeping reform of the Indian federal probate process. Key among AIPRA’s purposes was the goal of reducing fractionation of Indian trust landownership. The problem of trust land fractionation is best understood by an illustration of a forty-acre tract in South Dakota. The tract generates $ 1,080 of income per year and is valued at $ 8,000. A total of 439 individuals own undivided interests in the tract. Individuals do not necessarily own 1/439th of the land, but rather own varying proportions of the land. Now consider the financial ramifications of such ownership. One-third of the owners have an interest in the land that yields less than five cents per year in rent. The owner with the largest interest in the tract receives $ 82.85 per year and the owner with the smallest interest receives one cent every 177 years. If the land were sold for $ 8,000, the smallest interest holder would receive $ 0.000418. To keep all 439 owners straight and conduct the administrative management of this tract, the Bureau of Indian Affairs (“BIA”), which is part of the Department of Interior (“DOI”), spends approximately $ 17,560 per year. Add to that the fact that this illustration is based on 1980s dollar amounts and valuations, and [*106] the problem of fractionation becomes even more obvious. Although this situation is extreme, it aptly illustrates the often inefficient and nonsensical results of managing highly fractionated Indian trust land.
The continued fractionation of Indian land is the result of the failed Indian land policies of the nineteenth and twentieth centuries. To combat this problem in the twenty-first century, Congress passed AIPRA with the goal of halting further fractionation of Indian trust land. AIPRA’s impact extends beyond the confines of probate law and estate planning, as it can potentially affect the patterns of trust landownership for future generations. In order to fully realize the benefits of AIPRA and avoid its potential downfalls, Indian trust landowners, estate planning practitioners, and government employees who manage trust land must gain a firm understanding of the Act.
This Note provides a current perspective on the effectiveness of AIPRA, explores the challenges that it poses for Indian trust landowners, and proposes solutions for the future. Part II of this Note examines the history of the federal policy of allotment of Indian lands and also provides an overview of AIPRA’s most significant provisions. Part III examines the efforts made by various non-profit legal groups to provide estate planning services under AIPRA and considers whether, five years after its effective date, AIPRA has fulfilled its intended purpose. The main roadblock to realizing AIPRA’s potential to reduce fractionation of trust land is the uncertain nature of estate planning services. The goals of AIPRA cannot be fully accomplished without adequate funding to conduct training for attorneys and trust landowners, to establish and maintain law school clinical programs, and to place attorneys either physically or virtually with potential estate planning clients. AIPRA will only fulfill its intended purpose with properly funded estate planning initiatives in Indian country.