KEEPING A LID ON FRACTIONATION ALTERNATIVES TO STATE LAW John Payne, DOI/OHA, Sacramento 916-498-6600

WHAT IS IDEAL LAND OWNERSHIP MODEL FOR ALLOTMENTS? What should allotment ownership look like 50 years from now? Can traditional land use and ownership practices guide a federal AK probate code? How best to achieve ideal? A single federal law probate code for all of AK? Flexibility? In probates it’s easy to get caught up in the trees, and it’s useful sometimes to step back and look at the forest. The application of current law can lead to exponential increase in number of heirs. [Read example from article] Probably not best model. What is? What are the goals? Keep it in the family? How many owners should there be? How should use and occupancy decisions be made by owners? AIPRA broadly and over time increases ownership of allotments by tribes. Is that the right direction for AK? Good to think about what is wanted, even if hard to achieve. Read example from article on what unhampered use of state probate law leads to. Ideal is probably not 1,000 co-owners who don’t know each other, most of whom have no connection to the land itself.

SUMMARY OF PAST EFFORTS Federal Statutes – Tribal Specific (1946 – 1984), ILCA x 3 (1983, ‘84, 2000), AIPRA (2004) Tribal Codes – Authorized by Fed. Statute (25 U.S.C. 2205), only a handful to date Goals Have Included Limiting Fractionation, Keeping Land in Trust or Restricted Status, and Increasing Tribal Land Base The IRA in 1934 could have addressed this but really didn’t. No restrictions on land going to a person’s “heirs”. ILCA x 3 means ILCA 1983, as amended in 1984, and as amended in 2000. ILCA 1983 and 1984 gives a clear example of what CAN’T be done – escheat of allotment shares straight to a tribe, based on the size of the share or the amount of income a share produces. Cannot simply say that all shares 2% or less go straight to tribe, regardless of will, regardless of the person having a spouse and kids. But none of the other provisions I am going to talk about have been found unconstitutional, at least yet. Generally a lot of flexibility in putting restrictions on who can inherit, and even some restrictions on wills are allowed.

LIMITING SHARE OF SPOUSE Limitation is generally to a whole or partial life estate – examples include AIPRA and 1978 Umatilla Statute Limiting to a life estate prevents loss of Native land to non-Native spouse Changing spousal share could eliminate need for appraisal to determine share Modern trend is to give bigger shares to spouses. OR law often all of an estate goes to a spouse. If non-Native spouse this can lead to land going out of trust. Umatilla statute largely put an end to that on Umatilla reservation, limiting spouse’s share to a 1/2 life estate. AK law in some cases provides for first 100, 150 or 200 thousand of an estate to go to spouse. Often have to appraise to know what that is. If eliminated the monetary minimum, would eliminate need for appraisals.

LIMIT TO CLOSEST RELATIVES Cutoff is at surviving siblings generally – eliminates nieces, nephews, cousins, etc. Examples include AIPRA , 1980 Standing Rock Act, 1984 Sisseton Wahpeton Act Under current law one case with no will and no kids can heavily fractionate an allotment Cases with no will and no kids can involve large numbers of heirs – siblings, nieces and nephews, grandnieces and grandnephews, and so on. A wholly owned allotment can in one case go to an allotment with 40 co-owners, some of whom own less than ½ of 1%. They also use a lot of probate resources. Cousin cases are worse. Limiting to surviving siblings would eliminate that kind of case. As with single heir rule – question is where to go if no siblings. AIPRA goes to tribe? Is that desirable in AK? One place I don’t suggest going is “to all co-owners in equal shares.” Can be very difficult to probate.

LIMIT TO SINGLE HEIR AIPRA limits inheritance of “Less than 5%” to single heir, usually oldest child Powerful – Has strongly reduced further fractionation over past 10 years Controversial – AIPRA directs interests to tribe if no lineal descendants. Options? Should percentage be higher? 10%? A single heir rule could include siblings in line of descent, so to oldest sibling if no descendants. Where to go after that? Oldest niece of nephew? Oldest co-owner? Co-owner with largest share?

LIMIT INHERITANCE TO NATIVES Some laws focus on keeping lands in trust or restricted status – AIPRA, Standing Rock Act Limit heirs to those who can take in trust or restricted status – Natives or descendants These statutes sometimes allow a life estate for non-Native heirs (esp. spouses) Other than spouses, non-Native heirs could include adopted children, parents, or half-siblings. Could also include people who native ancestry is considered too remote – more than two generations removed from someone who is considered “Indian” or “Native.”

ALLOW DIRECTED RENUNCIATIONS AIPRA has language allowing people to renounce and say who receives their share AIPRA limits to a single recipient for small (less than 5%) interests AIPRA also allows for consolidation agreements – heirs can exchange shares of different allotments Popular. Can lead to keeping inheritance in trust by giving non-Indian spouse more flexibility – e.g. give his share to his own child.

UTILIZE JOINT TENANCY Survivorship – as joint tenants die their shares go straight to surviving joint tenants Only last surviving joint tenant passes shares to his or her own heirs or devisees AIPRA presumes JT in wills; 2015 Fond du Lac Code uses JT in its inheritance code

CITES AND FURTHER READING AIPRA – 25 U.S.C. 2201 (9) (“eligible heir” definition); 2206(a)(2)(D) (single-heir rule for less than 5% interests) 2206(c) (joint tenancy presumption in wills); 2206(j)(8) and (9) (renunciations and consolidation agreements) Umatilla Act, 92 Stat. 202 (1978) (limiting spousal share) Standing Rock Act, 94 Stat. 537 (1980) (limiting inheritance by Indian status, and to no more remote than surviving siblings) Sisseton-Wahpeton Act, 98 Stat. 2411 (1984) (limiting inheritance by membership in specific tribe) Fond du Lac Tribal Code (heirs inherit in joint tenancy) “The Fractionated Estate” article, lower 48 allotment history Stat. cites can be entered in a search engine like Google. Last two have to ask for copies.