Indian Probate and Probate-Type Appeals

Probates Arising Under 25 U.S.C. 372-373

The majority of Indian probate cases arise under 25 U.S.C. 372-373 and the American Indian Probate Reform Act (AIPRA), which was enacted as a set of amendments to the Indian Land Consolidation Act, 25 U.S.C. 2201 et seq. Regulations implementing the hearing and decision aspects of the Department's probate function under these statutes are found at 43 C.F.R. Part 30. Regulations implementing the appellate aspect of the probate function are found at 43 C.F.R. 4.310-4.318, and 4.320-4.326.

When an Indian who owns trust property dies, the Bureau of Indian Affairs (BIA) prepares information relating to the person's family history and property holdings for submission to an Administrative Law Judge (ALJ) or Indian Probate Judge (IPJ) in the Probate Hearings Division, Office of Hearings and Appeals. The Judge will conduct a probate hearing telephonically or at a location convenient for the family members. After the hearing, the Judge will issue an initial decision that directs distribution of the trust property. A party who disagrees with the initial decision must seek rehearing from the Judge before appealing to the Board. See 43 C.F.R. 30.238-30.242 and 4.320(a); Estate of George Lewis Roy, 58 IBIA 36 (2013). After the time for seeking rehearing has passed, a party who seeks correction of the initial decision must seek reopening from the Judge before appealing to the Board.  See 43 C.F.R. 30.243-30.249 and 4.320(b).

White Earth Reservation Heirship Determinations

The Department is responsible for determining the heirs of deceased members of the White Earth Band of the Minnesota Chippewa Tribe for purposes of determining eligibility to receive compensation under the White Earth Reservation Land Settlement Act of 1985, Pub. L. No. 99-264 (100 Stat. 61), amended by Pub. L. No. 100-153 (101 Stat. 886) and Pub. L. No. 100-212 (101 Stat. 1443). These cases are not full probates--they only determine heirship. Initial heirship determinations are made under 43 C.F.R. 4.350-4.355, and 4.357. These determinations are made by an administrative judge in OHA’s Probate Hearings Division or Departmental Cases Hearings Division. Appeals from heirship determinations may be taken to the Board under 43 C.F.R. 4.356.

Tribal Purchase of Inherited Interests at Probate

The American Indian Probate Reform Act (AIPRA) authorizes the purchase of inherited interests at probate, and there are several statutes and approved tribal probate codes that also authorize particular tribes to purchase certain inherited interests in land on their reservations. Initial decisions as to a tribe's right to purchase such interests, and the fair market value of the interests, are made by an ALJ or IPJ under regulations found in 43 C.F.R. 30.400-30.424 (Purchase at Probate) and 30.260-30.274 (Tribal Purchase of Interests Under Special Statutes). These decisions are appealable to the Board under 43 C.F.R. 4.320.

Osage Will Approvals

The Secretary has the responsibility to approve or disapprove any will executed by an Osage Indian that disposes of Osage trust property. Under regulations found in 25 C.F.R. Part 17, a hearing is held in these cases by an attorney from the Department's Tulsa, Oklahoma, Field Solicitor's Office. The attorney issues a recommended decision to the Superintendent, Osage Agency, BIA. The Superintendent issues a decision either approving or disapproving the will.

The Superintendent's decisions in Osage will contests may be appealed directly to the Board under 25 C.F.R. 17.14. See In Re Will of Louis Claremore Walker, 43 IBIA 5, 5 n. 1 (2006). Once the Department has determined whether to approve or disapprove the will, and any judicial challenges to the Department's determination have been concluded, an approved will goes to the Oklahoma State court system for actual probate. See In the Matter of the Will of Leonard Morrell Maker, 62 IBIA 33 (2015).

Five Civilized Tribes

Restricted property held by members of the Five Civilized Tribes (Cherokee, Chickasaw, Choctaw, Creek, and Seminole) are probated in the Oklahoma State courts. See 25 C.F.R. Part 16. The Board has no role in these probate proceedings.

Non-Trust Property

With the exception of the determination of heirs made under the White Earth Reservation Land Settlement Act, the Department probates only trust property. Therefore, when an Indian dies leaving both trust and non-trust property, another court must probate the non-trust property. This may be a tribal court, a CFR court or a state court. The law applied in tribal or state courts may be different than the law applied in the Department's probate decisions. For instance, under tribal law, a person's heirs may be determined differently than under Federal law, or standards may differ as to what constitutes a will or proper execution of a will.

Links to Additional Topics on the Board's Jurisdiction

• The Board's Jurisdiction in General
• Appeals from Administrative Decisions Issued by the Bureau of Indian Affairs
• Limitations on the Board's Jurisdiction