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Copyright (c) 2006 Seattle Journal for Social Justice 
Seattle Journal for Social Justice

INDIGENOUS LAND AND PROPERTY RIGHTS: The Changing Landscape of Indian Estate Planning and Probate: The American Indian Probate Reform Act

Fall / Winter, 2006

5 Seattle J. Soc. Just. 121

Author

Douglas R. Nash 1 and Cecelia E. Burke 2

Excerpt

Probate law typically is not a social justice issue. State probate laws are designed to effectuate the last wishes of people who have died without the benefit of a last will and testament. The policy behind state probate laws is to distribute property in a manner the majority of people would find acceptable, taking care to protect the needs and rights of the immediate family. The American Indian Probate Reform Act (AIPRA) of 2004 3 is a federal probate code that became effective June 20, 2006, and governs the descent and distribution of Indian lands. The policy behind the federal probate code is to repair the results of historic federal laws, reduce costs in government administration, and effectuate land consolidation. At odds with this federal objective are the personal property rights of those dying and protection for those left behind--a tension between administrative efficiencies and social justice.

The history of Indian people in the United States is a story about land-- specifically, the loss of land. From the time when Indian tribes owned all of what is now the United States to the present, when those Indian tribes fortunate enough to still retain some lands own minute fractions of their original holdings, the loss of land has been the story. Federal Indian policies frequently targeted Indian land. Reducing a tribe's land base reduced that tribe's power, damaged or destroyed its traditional economy, and rendered it more readily controllable by federal authority. The allotment policy parceled out already diminished tribal ...
 
 
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