Ways to avoid further fractionation of reservation land—Article 12
This article about ways to avoid fractionation is the twelfthof 13 articles that explain major sections of the American Indian Probate Reform Act (AIPRA).
A person can avoid further fractionation of interests in allotted land by taking different actions. As an example, a person may give all interests to one person or leave all interests to one heir in a will. A person could divide his or her land into solely owned parcels or gift interests to heirs. Other alternatives include sellinginterests to heirs, exchanginginterests with other heirs, or creating a joint tenancy for interests by will or deed.
Dividing allotted land can be difficult because of the differences in land quality and characteristics across a reservation. Some parcels of land may have adequate water access while other parcels may not. Some parcels may be irrigated while others may by dry. Some parcels may be suitable for annual crop production while other parcels are only to be used for grazing.
If a person owns land in fee simple or if he or she owns 100 percent of an allotment, the land could be dividedinto parcels. A person can make a gift of a specific parcel to each of his or herchildren. Each child would thus inherit a specific parcel rather than an undivided interest in the large land parcel.
Other methods of land consolidation available while individuals are still living include gifting, selling, or exchanging with the tribe or other co-owners in an allotment. Co-owners can concentrate on lands that lend themselves to such consolidation opportunities.
All gift deed applications must be filed on a form provided by the Bureau of Indian Affairs on the reservation where the interest is located. There are at least two types of forms. One form is for tribes organized under the Indian Reorganization Act (IRA) of 1934. Another form is for tribes who did not vote to accept the IRA. Gift deeds are not revocable once they are filed with the BIA. A person can’t change his or her mind and “take back” the interests in the land once the interests have been gifted to heirs or co-owners.
Selling and buying interests from other co-owners or the tribe (which may also be a co-owner) is another option for land consolidation. If a person owns land on another reservation and wants to consolidate, he or she may be able to sell to the IndianLandconsolidation office that is present on some reservations. To find out if an Indian Land Consolidation program is present on the reservation where the land is located, contact the local BIA realty office.
Exchanging undivided interests with other co-owners is another method of land consolidation. In these cases, co-owners can trade their undivided interests with other co-owners in order to consolidate their holdings in fewer allotments.
Writing a will that leaves all land to one person, or leaves interests in different allotments to different people are other methods of land consolidation. Under AIPRA, interests left in a will to more than one person are presumed to create a joint tenancy with right of survivorship unless there is clear language in the will stating that the interests are to pass as a tenancy in common. If land is owned in joint tenancy with right of survivorship, when one of the owners passes away, his or her property interests are vested in (pass to) the surviving co-owners.
In summary there are several alternatives for consolidating or preventing fractionation of whole interests in land by dividing it into parcels, gifting, selling or exchanging interests with other co-owners.
A person should make his or her decision about the best alternative or combination of alternatives only after careful consideration of the consequences of each choice for the person's individual family situation.
This was the twelfth of 13 articles explaining parts of AIPRA. Further information on AIPRA is included in a packet of 14 Fact Sheets that is available without charge from (name and address of agent). Materials in these fact sheets were developed by the MontanaStateUniversity faculty, with funding from the Community Outreach and Assistance Partnership Program of the Risk Management Agency of USDA. Next week'sfinal article explains what happens to your IIM money if you pass away without writing a will.
C:\Data\Marsha\Reservation Land & Wills\All Reservations\News Releases\article12avoidfractionation.doc\06/18/07kh