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Avoiding Land Fractionation in Indian Country
Options Available to Prevent
Land Fractionation
Part IV of IV
This is the final
article of this series on trust land fractionation in Indian Country. As
discussed in previous articles, trust land fractionation is a serious problem in
Indian Country. In the last article, we addressed what an individual could do to
prevent fractionation. In this article, we will discuss what a tribal community
can do.
One of the best
options is for the tribal council to adopt a tribal inheritance code. When an
inheritance codes exists, tribal members and their land holdings or personal
property are no longer subject to state codes. The Indian nation decides,
through the development of the code, who can inherit Indian trust land, and work
toward keeping Indian land in trust.
For example, a
non-Indian spouse can currently inherit trust land through the use of a will.
When this happens, the land is automatically taken out of trust status and
placed in fee simple. The land is assessed and taxed, and can be sold to anyone
including non-Indians who were never married to a tribal member. Each time this
happens, the tribe loses part of its land base.
With an inheritance
code, the tribe can establish guidelines that allow the non-Indian spouse to
retain a life estate on the land to live on and use the land until their death
at which time the land passes to the Indian children or grandchildren from that
marriage. If there are no children, then to the relatives of the Indian spouse.
This way, the land remains in trust and the non-Indian spouse has use of the
land during his or her lifetime.
Conversely, if the
tribe decides they do want non-Indian spouses to inherit trust land, they have
the power to do so through their inheritance codes. By adopting an inheritance
code, tribal members decide what happens to their land because the tribe is no
longer subject to state codes. However, this is currently under review, and is
subject to change in the near future.
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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