Ownership of Indian Lands has gone through large changes in the last decade. The American Indian Probate Reform Act of 2004 was written to fix problems with how land passed from one generation to the next.
Fractionation of Indian Lands
Prior to AIPRA, land was divided amongst heirs evenly. The result being that one small parcel of land might have dozens of owners, none of them with much value, but each of them having a say in what happens to the property. Indians lands were becoming a checkerboard of owners.
The American Indian Probate Reform Act
There were a number of problems that AIPRA was designed to fix. One of the biggest is the fractionating issue. Under the act, your tribal trust land may be bought by the Tribe or the Department of the Interior if you have less than a 5% share of the parcel. This can occur without the consent of your heirs, if you die without a will. Money from the sale will be passed to your heirs.
If your ownership in a parcel is less than 5% and you do not have a will, its possible (depending on your Tribe's Laws) that only one heir will get the inheritance of your share. That heir would be your oldest child, grandchild or great grandchild. If your ownership is more than 5%, Tribal probate rules will apply and your land will generally be passed to your spouse and children.
Under the American Indian Probate Reform Act a valid will is critical
If you have a valid will, the inheritance rules above are overridden. You can decide who gets your property after your death, even if that person is non-Indian descendant. There are still provisions where the Tribe, other co-owners, or your heirs may purchase your share in trust lands, but only if your heirs approve of the sale.
Under AIPRA you can transfer land while you're still alive
You now have more opportunities to transfer your share of trust lands. Under AIPRA you can sell, exchange or gift your land in a number of ways. This opens your options even more. The guidance of a qualified American Indian Probate Reform attorney like Brian Utsey is more important than ever.
Your one-hour initial consultation is free
If you have any questions concerning AIPRA or any other Indian Probate issue, it is wise to consult an attorney that focuses on this particular area of law. American Indian Probate Reform Act Lawyer Brian Utsey is ready for your call.