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Law Students Guide Native Americans through Estate Planning Labyrinth

August 7, 2007

Law Students Guide Native Americans through Estate Planning Labyrinth

Only about 20 percent of the 345,000-acre Coeur d’Alene Indian Reservation currently is owned by the tribe or its members. Halting the erosion of ancestral lands, and the cultural legacy they represent, has become a primary goal of the tribe.

The Indian Estate Planning Project, developed at the University of Idaho in 2004 under a $650,000 grant from the Indian Land Tenure Foundation, aims to help keep remaining reservation land in tribal ownership, and to fully immerse participating students in Indian law.

“Irresponsible legislative policies enacted by the U.S. government in the early 1900s allowed much of the land within Indian reservations to fall out of Indian ownership and become ‘fee' land,” said Helo Hancock (05’), attorney in the Office of Legal Counsel with the Coeur d’Alene Tribe and a former Indian Estate Planning Project intern. “The remaining Indian lands were put into ‘trust' by the United States for and on behalf of the tribes in an attempt to protect these lands from falling out of Indian hands.”

Today, however, only a small portion of the original Coeur d’Alene Reservation is Indian-owned trust land. What was left of Indian trust lands has been eroding away due to fractionation over several generations because most tribal members did not make a will and the laws of intestate succession divided up and distributed their property at death, Hancock explains.

“When a Native American died without a will, the laws of intestate succession dictated that usually half of whatever they owned would go to any surviving spouse, and half would be divided among any surviving children," said Hancock. "That division occurred over several generations, creating parcels with literally hundreds of co-owners, both Indian and non-Indian. Many owners have just a minute fraction of interest in the land.”

That highly mixed and highly divided ownership – called fractionation – makes it difficult to do anything with trust land.

The Indian Estate Planning Project is dedicated to informing tribal members about the importance of wills and estate planning, and assists them in making wills that will carry out their wishes and prevent further loss of Indian lands. The Indian Estate Planning Project follows the guidelines set forth in the American Indian Probate Reform Act (AIPRA) of 2004, which places more restrictions on the inheritance of Indian property in an effort to preserve tribal ownership, providing the tribe and its members with rules and options for devising and buying trust land.

“While the goal behind AIPRA was to provide protection to keep land in Indian hands and prevent fractionation, AIPRA also has its pitfalls,” said Hancock. “The easy answer for tribal members to protect their lands is to have a will, and that’s exactly what the Indian Estate Planning Project does. It’s a great resource that tribal members have, and it’s free.”

The project has grown since 2004. This summer 12 law students from across the country, including five from the University of Idaho, are working under supervision of legal services attorneys, preparing wills and estate plans for tribal members in 12 locations in four western states, including: Idaho, serving the Coeur d’Alene, Nez Perce and Shoshone Bannock reservations; Montana, aiding the Blackfeet and Crow reservations; Oregon, serving on the Burns/Paiute, Umatilla and Warm Springs reservations; and in Washington, on the Colville, Kalispel, Muckleshoot and Swinomish reservations.

The Estate Planning Project was developed by Univeristy of Idaho College of Law Professor Douglas Nash, who now serves as director of the Institute for Indian Estate Planning and Probate at Seattle University, and Law Professor Dennis Colson, recently retired.

Christine Dow, a Univeristy of Idaho third-year law student, currently is working with Coeur d’Alene tribal members, peeling through the onion-like layers of national, tribal and familial affiliations involved in the Indian estate planning process.

“My experience has been that older tribal members have family connections and land ownership interests in more than one tribe, so the regulations of more than one tribe also come into play,” notes Dow. “Because the tribe has to deal with the complicated labyrinth of federal bureaucracy and approval procedures, the official status of the tribes’ regulations regarding inheritance of trust lands adds another layer of ambiguity. On top of that, some of the mechanisms for enforcement of inheritance restrictions are exercised at the option of the tribe, so devise of trust land interests can be anything but straightforward.”

While immersing herself in the details of each estate plan, she also keeps the big picture in focus. “It has given me a picture of what it must be like to practice law in Indian country,” said Dow. “I’m very interested in Indian law and in the way tribes are working to maintain their communities and cultures, and to keep their future connected to their past. Estate planning in Indian country is more than passing property between generations; it’s also about supporting tribal sovereignty by keeping the land base within the tribe.”

The University of Idaho third-year law students serving Indian Estate Planning internship this summer also include: Kinzo Mihara of Clarksburg, Md., interning with the Blackfeet Nation at Browning, Mont.; Cathi O’Connell of Bellingham, Wash., interning with the Swinomish Tribal Community at La Conner, Wash.; Mike Froehlich from Goldendale, Wash., interning with the Nez Perce Tribe at Lapwai, Idaho; and Sean Beck from Idaho Falls, working on with the Shoshone-Bannock Tribes at Fort Hall, Idaho.