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Working Memo 1 (April 2014)

handle is hein.nccusl/nccpubmtpc3785 and id is 1 raw text is: ULC/MODEL TRIBAL PROBATE CODE WORKING MEMO: BACKGROUND ISSUES 1. OVERVIEW: HISTORICAL CONTEXT A. General 1. The story of the relationship between tribes, tribal members, and the federal government has always been about land. 2. Title by conquest (legal limits on ownership) and reservation policy (physical limits on ownership). B. The Allotment Era 1. Privatized reservations by dividing up land and parceling it out, in individual ownership, to tribal members. a. Trust Allotments: Dawes Act, aka General Allotment Act. Title retained by federal government; individual allottee took as beneficiary. b. Restricted Fee Allotments: Curtis Act, 5 Tribes. Title transferred to individual allottee, but transfers restricted absent secretarial approval. See generally Katheleen R. Guzman, Give or Take an Acre: Property Norms and the Indian Consolidation Act, 85 IOWA L. REV 595, (2000). 2. Although the roots of allotment extend back to the Colonial period, the Dawes Allotment Act of 1887 was the first comprehensive proposal to replace tribal consciousness with an understanding of the value of private property. Douglas Nash & Cecilia Burke, The Changing Landscape of Indian Estate Planning and Probate: The American Indian Probate Reform Act, 5 SEATTLE J. FOR SOC. JUST. 121, 124 (2006). 3. For cultural and legal reasons, most allottees died intestate. State law determined the identity of the heirs, even though state courts did not have jurisdiction over Indian probate proceedings. Diane K. Lautt, The American Indian Probate Reform Act: A Five-Year Review, 51 WASHBURN L. J. 105, 111 (2011); see also 24 Stat. 388, 389. Until recently, allotments descended through the general rules of intestate succession and probate that were applicable to non-Indian interests in the state where the Indian land interest was situated. Casey Roth-Petherick,

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