Tribal Legal Code Project: Tribal Probate Codes

It is critical that tribes enact comprehensive inheritance or probate codes for many reasons, including (1) to prevent more Indian land from falling out of trust status, (2) to prevent the eroding of tribal land base, (3) to comply with the decedent’s wishes as much as possible, (4) to ensure that non-trust property is handling in tribal court, and (5) to provide a simple, efficient, and inexpensive method for probating the decedent’s property (including tribal housing).

Included is an example of a comprehensive tribal probate code from the Chitimacha Tribe of Louisiana. Although this probate code is included as chapters 5-11 of Title VI (Family Law) of the Chitimacha Comprehensive Codes of Justice, most tribal probate codes are located in a separate chapter of the tribal code. The code includes many provisions from the Uniform Probate Code. However, it also includes many innovative provisions, including purpose clause, oral wills, restrictions on inheritance of trust land by non-Indians (as allowed under the Indian Land Consolidation Act), family/homestead allowances, and Indian custom and tradition distribution of Indian finery and artifacts.

Chapter 5: General Probate Provisions

This chapter includes purposes and definitions sections. It contains a broad jurisdiction provision (section 503) which provides for jurisdiction over all non-trust property of anyone (tribal member, non-member Indian, and/or non-Indian) who - at the time of their death - was either domiciled on the Chitimacha Reservation or owned real or personal property on the Chitimacha Reservation. It contains two practical traditional provisions - control of funeral arrangements based on family decision and the tribal customs (section 504) and Indian custom and tradition distribution of Indian finery and artifacts (section 506). Most of the remaining general provisions are similar to the general provisions in the Uniform Probate Code with minor adaptation to meet the specific needs of the Chitimacha Tribe.

Chapter 6: Wills

This chapter provides the general procedures for recognition and processing of wills. Many of these provisions are similar to the provisions of the Uniform Probate Code with minor adaptation to meet the specific needs of the Chitimacha Tribe. The major exception is Section 604 (Oral Wills) which provides that a will "is valid as an oral will under Chitimacha custom, if all children, whether residing in testator’s home or not, and testator’s spouse, if alive, are present at the announcement of the oral will and agree that the testator orally made known the testator’s last testament before them." Most state codes do not allow for oral wills, but an increasing number of tribes are authorizing their use (under conditions similar to this code provision) in keeping with tribal custom and in order to more adequately comply with the decedent’s wishes while protecting the family.

Chapter 7: Intestate Succession

When a person dies leaving a valid will, the person is said to have died "testate". However, if they die without leaving a valid will, they are said to have died "intestate" and their property is distributed according to the laws of "intestate succession". This chapter sets out the Chitimacha law of intestate succession which is generally based upon the Uniform Probate Code and, in keeping with the modern trend, provides a larger share for the surviving spouse.

Chapter 8: Family Rights/Protections

This chapter includes a series of procedures designed to protect family rights, allow an elective share for the surviving spouse and children unprovided for in wills, establish exempt property and allowances, and establish summary probate procedures for small estates.

Chapter 9: Inheritance by Non-Indians/Fractionated Heirship

This chapter contains very important provisions concerning protection of tribal lands, including restrictions on inheritance by non-Indians and attempts to reduce the potential problems presented by fractionated heirship (where property is held by so many owners in common that effective use of the property is not possible). The first two sections (sections 901 and 902) concern the assignment of tribal lands provision from the tribal constitution and an effort to clarify possible ambiguity in that provision. This chapter takes advantage of the provisions of the Indian Land Consolidation Act of 1983 and 1984 to restrict inheritance by non-Indians (section 903). It also attempts to improve upon the escheat provisions of the Indian Land Consolidation Act by providing an alternative escheat provision (section 904), but this provision is no longer necessary since both the escheat provision of the 1983 and the 1984 versions of the Act have been overturned by the U. S. Supreme Court as an unlawful taking without just compensation.

Chapter 10: Administration of Intestate Estates

This chapter sets out the specific procedures involved in administering intestate estates. The general purpose is to provide for the orderly distribution of property after death. This code provides general guidance, but some codes contain more detailed provisions concerning the administration of estates. Some tribal codes also provide for public administrators so that the decedent’s family does not have to handle the cost and effort of probating the intestate estate by themselves.

Chapter 11: Probate of Wills

This chapter sets out the specific procedures involved in probating wills. The general purpose is to provide for the orderly distribution of property after death in accordance with the wishes of the testator to the greatest extent possible.