American Indians have a unique heritage within the United States. These tribes are loyal to their descendants and take great pride in their family relations. According to the 2004 Probate Reform Act, a part of the Indian Land Consolidation Act, there are special provisions for American Indian tribes when it comes to probate. Federal law states that a tribe can create and adopt its' own tribal probate code. In order to do so, they need to submit their code to the Department for approval, especially if it includes provisions for descent and distribution of trust and restricted lands.
Restricted lands, within the Federal sphere, are referred to as real property where the title is held by an Indian. In probate, these lands a referred to as if they were trust lands. Currently, this does not include any restricted lands that are of the Five Civilized Tribes of Oklahoma or the Osage Nation. When probate plans are reviewed by the Department, they will look to see if the code is consistent with Federal law. Also, they will check to make sure that the code promotes the policies of the Indian Land Consolidation Act Amendments of 2000. These amendments aim to stop further fractionation, consolidate fractional interests into working parcels, consolidate fractional interest to enhance tribal sovereignty, and reverse the allotment policy and its effects on Indian tribes.
In most cases, probate policies presented to the Department will meet these standards. When everything lines up, the probate policy will be approved. These probates can devise interest to an Indian of lineal descent to the original allottee, or an Indian who is not a member of the tribe but has jurisdiction over the interest in the land. If there happen to be divisions between the code and the probate plan, then the Federal government must allow devisees to renounce their interests in favor of other devisees that are eligible to accept, or allow a devisee who is the spouse or lineal descendant or the person who executed the will to reserve a life estate without regard waste. Also, the government can require the payment of a fair market value which is chosen be the Department when the former land owner passes away.
A tribal code approval normally takes about 180 days. If the code is not approved by that time, then it is legally accepted on the basis of neglect. If, for some reason, the government finds out later that the policies in the probate plan are illegal and nor consistent with the government guidelines, they can revoke the plan. If a code is permitted, then it will be effective 180 days after the government gave it the go. Also, probate codes are only active after the decedent as passed away, probate for the future cannot be acted on while the man or woman is still living. Unfortunately, if a probate code is disapproved by the government, the tribe cannot appeal the Department, but they can amend it in order to try again.
Tribes can also adopt something known as a single heir rule. This is when a specific man or woman is chosen for interstate succession. This can be done without a probate code but the single heir rule will need to be sent to the government for approval just like the code is. These single heir rules must be approved or denied within 90 days, or else the tribe can recognize them as active. After the government approves or disapproves this measure, it takes 90 days before it can be acted upon.
These special provisions to probate are important, especially for men and women who reside on Indian reservations. If you want to know more about your privileges as a Native American, then you should talk to a probate attorney. A knowledgeable legal representative can help you to best outline your probate plans and single heir rules so that they will be approved by the government. Also, a legal representative can help to keep you from making mistakes and getting into trouble with the government.