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By: Calvin Hatch

� Provide an introductory practical high level look at estate planning for Native Americans

� Assist estate planning practitioners in spotting some of the primary issues associated with estate planning for Native Americans

� NOT intending to provide a comprehensive or detailed training, as that would require much more time than we have today

� Get to know and respect your client and their tribe

� Never make blind assumptions

� Understand the three courts which probate Native American assets

� Apply what you already know

Okay… that is about it.

Native clients are unique in many ways.

Learning about our respective culture, history, traditions, tribal government, and any

controlling federal laws will assist you to better provide Estate Planning services.

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The following statistical data was gathered as part of the 2010 survey conducted by the U.S.

Census Bureau

As of the 2010 Census, the nation's population of American Indians and Alaska Natives, including those of more than one race. They made up 1.7 percent of the total population. Of this total, 2.9 million were American Indian and Alaska Native only, and 2.3 million were American Indian and Alaska Native in combination with one or more other races.

22% of all Native Americans lived on reservation or in Indian areas or Alaska Native Villages.

Median age as of April 1, 2010, for those who are American Indian and Alaska Native was 29.0

years of age. This compares with a median age of 37.2 for the population as a whole.

In other words, we have a shorter life expectancy meaning that estate planning becomes relevant

and important earlier in our lives.

As of the 2010 US Census, there were 565 federally-recognized Indian Tribes in the

United States.

There were 334 federal and state recognized American Indian Reservations. All in all, there are 617 American Indian legal and statistical areas for which the Census Bureau provides

data.

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The median income of American Indian and Alaska Native households is $35,062. This compares with $50,046 for the nation as a

whole.

28.4% of American Indians and Alaska Natives lived were in poverty in 2010. For the U.S. as a

whole, the corresponding rate was 15.3%.

Receipts for American Indian- and Alaska Native-

owned businesses in 2007 totaled $34.4 billion, a

28.0 percent increase from 2002. These businesses

numbered 236,967, up 17.7 percent from 2002.

4,599 American Indian- and Alaska Native-owned businesses had receipts of $1 million or more in

2007.

� Shoshone� Northwestern Band of Shoshone

� Ute� Uintah & Ouray Reservation

� Ute Mountain

� Goshute� Confederated Tribes of the Goshute Reservation

� Paiute Indian Tribe of Utah

� Navajo Nation

� According to the 2000 U.S. Census:� 16,809 Native Americans live along the Wasatch

Front between the Salt Lake City and Ogden Utah.

� 1,354 live in the Provo, Utah area.

� 877 live in South Salt Lake City, Utah.

� 1,097 live in St. George, Utah.

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� Some tribes do not believe in discussing or planning for one’s own demise.

� Some tribal customs require that all personal property be given away upon death.

� Assets may be minimal, but do not jump to conclusions.

� BIA Probate requirements create a perceived limitation on estate planning vehicles.

� Understand Probate for Native Americans - the three court probate system� Tribal Court - always request copy of tribal law to

remove surprises (i.e. limitations on practice of law, limitations on recognition of wills or trusts)

� Bureau of Indian Affairs Probate Court – begin by looking at the American Indian Probate Reform Act

� State Court

� Basic Principles:� Recognize and respect the value of Tribal Courts

(access, speed and equity)

� You MAY OR MAY NOT be permitted to practice on reservation or in tribal court (i.e. Wells Fargo case)

� The rules vary substantially from tribe to tribe

� Probate MAY OR MAY NOT be avoided by drafting a living trust or other related trust documents

� Tribal Court oversees Distribution of non-federal trust real & personal assets located within the court’s jurisdiction� Non-federal trust assets include those assets NOT

held in trust by the federal government for the benefit of tribes or individual Indians (i.e. vehicles, buildings, jewelry, artifacts, etc)

� Do not underestimate the value or importance of this portion of the estate

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Keep in mind that some Tribal Court systems

may utilize very different or even outdated laws.

Extreme example: “…it shall be the duty of the Judge of the [Tribal] Court, who may be assisted by the

Extension Agency (local BIA office), to immediately make an inventory and appraisal of the property of said decedent… The Judge shall immediately set a hearing and notify all known heirs. The Judge shall receive $3.00 per day, the

same to be paid from the estate. 70-SPO-3(5).

� Basic principles:� BIA Probate CANNOT be avoided by drafting a

living trust or other trust document. Such documents are deemed void for purposes of AIPRA.

� Only Native American individuals can own an unrestricted interest in those assets held by the BIA in trust.

The primary mission of the Division of Probate is to compile inventories of Indian Trust assets and family information, and to coordinate the timely distribution

of trust assets with the Office of Hearings and Appeals, Land Titles and Records Office and the Office of

Special Trustee.The Division of Probate gathers information regarding

decedent’s family and property and prepares it for adjudication by the Office of Hearings and Appeals

(OHA). After OHA issues a probate order the Division works with other trust offices, such as the Office of the

Special Trustee for American Indians and the Land Titles and Records Office to distribute the assets.

US Department of Interior, Indian Affairs, available at: http://www.bia.gov/WhoWeAre/BIA/OTS/Probate/index.htm (last

visited December 9, 2013).

� SET EXPECTATIONS REGARDING TIMEFRAMES:� BIA Probate can take as long as 4 to 8 years from the

time the BIA compiles a probate package to the time that the Office of the Special Trustee completes all distributions

� Traveling judges with heavy case loads

� Sketchy information and record keeping

� SIDENOTE: Make sure you get temporary orders.

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� Distributes trust assets - real & personal� Trust assets are assets held in trust by the federal

government for the benefit of tribes or individual Indians (i.e. land held in trust, restricted property or Individual Indian Money (IIM) accounts

� Governed by AIPRA - the American Indian Probate Reform Act, 25 U.S.C. §§ 2201-2221 (2004).

� Be aware of the history - Dawes Act / General Allotment Act (1887) which created the “fractionation (tenants in common) problem,” the Burke Act (1906) which created reservation checker boarding (138 million acres of Indian Trust land in 1887 to 52 million in 1934)

� Be sensitive to tribal culture and traditions (i.e. many tribes believe that writing a will or planning for one’s own death actually invites death)

� Never underestimate the value or importance of personal property (i.e. Navajo Blanket)

� Get copies of tribe’s code before beginning the drafting process� Will the tribal court honor wills or trusts created under

state law. If not, cite to both state & tribal law� Be careful with sacred items which may be illegal for non-

Indians to own per tribal or federal law

� Provide information regarding how to report the testator’s death.� Avoid lumping assets into single paragraphs. Instead, draft

sections specific to each court.� Specifically address each type of property held in trust

� Federal Trust Lands – if not sure, contact BIA Land Title & Records office to request an Individual Trust Interest (ITI) Report

� IIM Account – monies collected from land leases, natural resource sales, etc. – if not sure, contact Office of Special Trustee to request a ledger report – Trust Status retained?

� Assure that you plan for life estates – “without regard to waste” vs. “malicious waste” under AIPRA – limit life tenant accordingly

� Keep in mind that up to two consecutive life estates are permitted under AIPRA – remainder to remaindermen.

� Reduce when possible fractionation under AIPRA consistent with client’s goals (gifting, selling or exchanging with tribe or other owners)� Make sure you are familiar with restrictions (i.e. life estates & life

tenants)� Assure that your language does not conflict with the AIPRA 5%

rule or single heir rule

� Again - Do NOT attempt to place federal trust property in living trust – void

� Include in any will that you draft a self-proving affidavit signed by testator as required under AIPRA

� Keep in mind that AIPRA presumes joint tenancy with right of survivorship

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Keep doing what you are doing…

� The thoughts I have shared may seem to discourage estate planning for Native Americans. My intent is quite the opposite. I submit that once an estate planning attorney is familiar with all the relevant factors, he can then maximize the benefits of estate planning.

� Asset protection along with other business planning strategies are very important considering the growth in Native Owned Businesses.

� Tax related strategies are growing in importance as the number of wealthy Native Americans continues to grow.

� Probate avoidance strategies remain important as it may be avoided in both state & tribal court.

CALVIN HATCH

(801) 910-6209

calvin@hatch-law.com