02-3939. Notice of Changes Resulting from the Indian Land Consolidation Act Amendments of 2000

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

The Bureau of Indian Affairs is issuing this notice, as required by the Indian Land Consolidation Act Amendments of 2000, to inform the public that this new law made important changes in what happens to Indian allotments when the owners die. This notice provides some information about the new law.

ADDRESSES:

For a list of Bureau offices with addresses and telephone numbers that administer the trust and restricted land write to: Bureau of Indian Affairs, Attention: Public Affairs/ILCA, Mail Stop: 4542-MIB, 1849 C St., NW., Washington, DC 20240; or fax to [phone] and the list will be mailed or faxed to you.

FOR FURTHER INFORMATION CONTACT:

Larry Scrivner, Deputy Director, office of Trust Responsibilities, Bureau of Indian Affairs, Washington, DC; 202-208-7737.

SUPPLEMENTARY INFORMATION:

Pursuant to the Act of November 7, 2000, Public Law 106-462, 114 Stat. 1999, the Secretary of the Interior must publish a notice informing Indian owners of trust or restricted land of the effect of the Act and estate planning options available. Special terms used in this notice:

Close family. Your close family members are your brothers, sisters, aunts, uncles, nieces, nephews, and first cousins.

Immediate family. Your immediate family members are your parents, children, grandchildren, grandparents, brothers, and sisters.

Indian. You will be considered an Indian under the new law if you are enrolled (or eligible to be enrolled) in a federally recognized Indian tribe, or if you are considered an Indian under certain other federal laws.

Joint tenants with rights of survivorship or JTROS. If you own land with someone else as joint tenants with right of survivorship, your right to the land lasts as long as you live. As each joint tenant dies, the surviving joint tenants get the share of the deceased joint tenant. Eventually, the last surviving joint tenant owns the entire interest in the land, and only that person can decide who gets the land.

Life estate. If you own a life estate in land your right to the land lasts as long as you live, but you cannot decide who will get the land when you pass away.

Remainder interest. If you own a remainder interest in land, your right to the land begins when the person owning the life estate in the land dies. If an Indian has the remainder interest, the land stays in trust.

Tenants in common. If you own land with someone else as tenants in common, you will have an equal right with your co-owners to the land while you live, and you can also decide who will own that interest when you pass away.

Probate Changes

The law provides two methods for a judge to decide who will own your land. By writing a will, you decide who receives your property. If you do not write a will a judge will apply rules of intestate succession to decide who will own your land. The rules explained in paragraphs I and II will apply to the estates of people who die after approximately February 2003 (the exact date will be one year from when the Secretary publishes a certification that notice was provided.). These rules may also be affected by a federally approved tribal probate code.

I. Rules of Intestate Succession

If you do not write a will, a judge can only give your land to your spouse or immediate family, but only if they are Indian.

If your spouse or immediate family are not Indian, they can inherit a life estate. The remainder interest will go to any of your close family if they are Indian and also own a share in the same allotment. If no members of your close family are Indian or none of them owns a share in the allotment, the tribe will get the land when the life estate holder dies.

If a share is smaller than 5 percent of the whole allotment and it is inherited by more than one of your heirs, those heirs will inherit as JTROS. If the decedent's share is more than 5 percent, each heir will inherit as a tenant in common.

II. Rules of Inheritance With a Will

If you write a will, you may leave your trust land to any Indian or the tribe.

However, if your will leaves your land to a non-Indian, they will receive only a life estate. The judge will give the remainder interest to your spouse or immediate family, but only if they are Indian.

If neither your spouse nor your immediate family are Indian, the remainder interest will go to your close family if they are Indian and also own a share in the same allotment. If no members of your close family are Indian or none of them owns a share in the allotment, the tribe will get the land when the life estate holder dies.

If your will leaves your land to more than one person, the judge will make them JTROS, unless your will specifically makes them tenants in common.

If your spouse, immediate family, close family, and children, grandchildren, etc. are all non-Indians, you may be able to leave more than a “life estate” to them. To find out more about your options, you should contact the local BIA Real Estate Services Office.

To prevent land from leaving trust status, tribes may buy interests that are left to non-Indians by will.

III. Rules for Co-owners

If you own a share in an Indian allotment, you may buy the share of a deceased co-owner to prevent the tribe from acquiring that share under either intestate succession or a will. You may not do this if the deceased co-owner's family will inherit the property.

Additional Changes

Other parts of the new law that will be helpful with land consolidation and the development of allotted land are as follows:

1. At any probate hearing the heirs can consolidate their shares in the land being probated or any other shares in allotments the heirs may own.

2. The new law makes it easier for allotment owners to buy, sell, or exchange interests in trust land. For example, an appraisal may not be needed when you give or sell land to a family member. Also, you can now make a gift of your land to non-family members and the tribe. It should also take less time to put an undivided interest into trust if any of the allotment was in trust on November 7, 2000.

3. To encourage consolidation, you can now make a written request for the names, addresses and ownership interests of your co-owners or the owners of trust land on your reservation. To encourage development, lessees and other users can also obtain the same information.

4. To encourage negotiated leases, the law sets new minimum consent requirements for the leasing of allotted land.

5. The new law does not apply to land in Alaska.

This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.

Dated: November 5, 2001.

Neal A. McCaleb,

Assistant Secretary—Indian Affairs.