Probate Reform, Indigeneity, and Tribal Sovereignty

Probate Reform, Indigeneity, and Tribal Sovereignty

by Daniel Orr -
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The legacy of allotment has had three significant consequences: 1) Diminishment of the sovereign authority of tribes to manage their own territory, 2) Theft of tribal lands, 3) Fractionation of tribal land. The last of these is implicated directly in the incomparable levels of poverty and homelessness within Indian Country today. In recent attempts to remedy allotment policies, definitions of indigeneity have been employed to prevent tribal land bases from being overwhelmed or lost to non-Indians, and to maintain the tribal community.

2000 ICLA amendments, although not yet enacted, would implement a universal set of federal rules to manage descent and distribution of tribal allotments. This policy would also prohibit non-Indian heirs from becoming (co)-owners of allotted lands. Creel points out that although the power to determine tribal citizenship is uniquely that of a tribe, the circular logic of plenary power vests the federal government with authority to protect Indian property, giving them liberty to determine indigeneity in these matters.

In Creel’s own proposal for probate reform the author proposes that distribution policies exclude heirs who do not maintain a relationship with the land, with tribal kinfolk, or culturally with the tribe. This would curb the process of fractionation while reducing unnecessary BIA expenditures for the management of co-ownership accounts.

Both Creel’s proposed reform and the ICLA amendments manage land inheritance because of restrictive definitions of indigeneity. While both would theoretically protect the use and ownership of tribal lands, Creel’s differs critically from the federal ICLA amendments in the imposition of universal probate policy. At the same time as arguing for their proposal, Creel reinforces the unavoidable truth that policy endorsing tribal sovereignty can not impose a single universal set of rules governing inheritance. It is for this reason that Creel describes why intra-tribal land transactions do not need to be administered by the BIA.

This difference is critical because determining indigeneity and tribal status is the most fundamental aspect of tribal sovereignty. For the BIA to determine whether heirs merit receiving (co)-ownership of an allotment based upon indigeneity would be a further usurpation of tribal sovereignty based upon the same reasoning that upholds the current property system and harkens too closely back to the ideological origins of blood quantum.

It may truly be beneficial to discredit non-Indian heirs or those who have permanently severed ties with the tribe. But to administer such a policy on a federal level not only directly contradicts the rightful sovereign authority of tribal governments, but ignores the communal construction of indigeneity necessary to such decisions. Such proposals then ought to be incorporated into tribal systems of property ownership if they are to be accepted at all.