Having a well thought-out estate plan in place can provide peace of mind and financial benefits for any family, especially for Native American families. The complex history of the law governing ownership and distribution of tribally-owned land and property creates unique risks and concerns when it comes to the disposition of land and property upon the death of a family member.
The Indian Reorganization Act and Estate Planning
The Indian Reorganization Act of 1934 (IRA) plays a role in determining how tribal lands can be devised by distinguishing between IRA lands and non-IRA lands. For tribes adopting the IRA, tribal lands were placed in trust with the federal government (as IRA lands). For tribes choosing not to adopt the IRA, tribal lands remained outside the application of the IRA's provisions (as non-IRA lands).
In general, IRA land must be devised (or passed on) to a Native American in a manner that preserves its trust status. Non-IRA land, on the other hand, can be devised to whomever the devisee chooses, taking it out of trust and passing on outright ownership, but to a non-Indian only. If a will seeking to devise tribal land contains a provision failing to recognize this important distinction it will be considered invalid and the federal or tribal governments will determine who has ownership of the land.
An effectively drafted instrument, in contrast, can ensure that none of the provisions included in a will are invalidated due to the terms of the Indian Reorganization Act. Thus, Native American families should be sure to consult the provisions of the IRA when drafting their will and, if necessary, devise their land in a manner that preserves the trust relationship established therein.
For many families, placing assets in a "living trust," as opposed to the use of a last will and testament, is a superior estate planning option. Because many parcels of Indian land are already held in trust by the federal government, however, Native American families face an additional hurdle when seeking to gain some of the benefits of a "living trust."
Above are only a few of the unique rules applicable to Native American wills and trusts that Indian families should take into account as they consider their estate planning options. As these examples illustrate, Native American families face a number of challenges when seeking to ensure that their estates are appropriately cared for and distributed upon the death of a family member.
To ensure that your family has an effective estate plan in place that will comply with all federal and tribal laws, call our Fargo tribal attorneys today at (701) 401-7404.