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Avoiding Land Fractionation in Indian Country
Land Fractionation
What it is, and Options Available to Prevent it
(Part I of IV)
When an Indian landowner dies, it is either testate, meaning a will
exists or intestate, meaning a will does not exist. In either case, the property
must be probated. Trust property must be probated in a BIA administrative
proceeding and non-trust personal property must be probated in a tribal or state
court proceeding. Probate is a legal proceeding in which it is determined who
the deceased person’s heirs and creditors are, what property the deceased person
owned, and how much of that property the heirs and creditors should get.
Upon
the death of an Indian landowner who died intestate, federal law governing
Indian probates directs that the trust land of the deceased be passed to the
heirs as undivided “fractional interests.” For example, if a person was allotted
80 acres and had four children at death, the heirs would inherit a one-fourth
interest in the entire allotment as opposed to each individual inheriting 20
acres. When those four children died, if they each had three children, their
one-fourth interest will be divided among their three children. The original 80
acre piece of land now has 12 owners with an undivided interest in the whole.
Eventually, this piece of trust land might have hundreds of owners.
In
only two or three generations, allotments can become so fractionated that they
become practically useless either as workable land or as a source of income.
This is because a majority of owners need to agree on what to do with the land
-- such as building a home or starting a business -- when there are many owners
on one parcel of land, it is unlikely a majority of owners will agree on what to
do with the land. This creates a personal loss of land use for the individual
owners by creating a lack of housing, and it adversely affects the Indian
community as a whole by creating and adverse effect on economic development.
An
Indian person can prevent this from happening by consolidating or exchanging
allotments, setting up an estate plan, or both.
Note: Dakota
Plains Legal Services is providing this information in partnership with this
newspaper as a public service. This article is not intended as legal advice.
Always talk to a lawyer before taking any legal action.
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