An Indian Will refers to a will or a typical will with will language drafted for the express purposes of transferring certain types of "trust" interests some tribal members may have in real property or ongoing streams of income from tribal trust interests. These interests may be extremely fractionalized, nevertheless, if not addressed they can be lost to other parties, particularly to the tribe. Unlike the typical will that could be probated in State court and in some cases, tribal court, probate of an Indian Will or Indian Will provisions is a Federal Process and will most likely occur in addition to a State or Tribal court probate. A handful of tribes also have their own probate code and they are exempt from AIPRA. Adding to the confusion is that some tribes have their own probate process in tribal court without having a probate code and in some cases that court may have jurisdiction rather than the state court.
What are the best resources for information on AIPRA?
I have provided links to Montana State University's fact sheets on Indian Probate. They are very clear and concise. Another issue will be helping your client determine if they have a share in Indian Trust land or Individual Indian Money accounts. In most cases, especially if a tribe is involved in ongoing litigation over potential trust lands, an enrolled member or other qualified person under AIPRA will want to include Indian Will language in their wills even if they currently do not have an interest that would pass under an Indian Will. Some of the information on the Montana Fact Sheets such as phone numbers to BIA offices will not apply in other regions of the country.
Planning for a traditional burial
Even for non-Indians, an argument can be made that appropriate end of life planning through Power of Attorneys, Advance Directives, and Physicians Orders for Life Sustaining Treatment are overlooked. While tribes are not monolithic, many tribes do have distinct and very important traditions that would lead their members to strongly desire traditional burials and avoid overculture practices such as autopsy, organ donation, embalming or even burial delays. The Advance Directive or Living Will is the place to address these issues rather than the will. Custom language may be drafted to instruct Physicians and family members to allow for transport to another state, to avoid practices that may make traditional burial difficult and to indemnify medical personnel who allow action in compliance with traditional practices. One federal case strongly suggested that a decedent's family members did not have standing to speak for a decedent, making preplanning for traditional burial essential.
Issues involving Non-Indian Spouses and children who are not enrolled members
AIPRA provides significant protections for non-Indian spouses to receive life estates in trust interests. This is of particular importance to the non-Indian surviving spouse living on tribal trust land. Similarly, there are protections for passing trust interests to children who do not qualify under a given tribe's blood quantum rules. Other issues may pertain to ensuring that community property laws or agreements do not inadvertantly transfer sacred, ceremonial objects or other items of import (to members of the family or the tribe) to lateral relatives of the non-Indian spouse upon his or her death. Tribal families may also wish to provide for alternative dispute resolution mechanisms regarding the distribution of the family's cultural assets in keeping with their own traditions.
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