March 11, 2021

Estate Planning in Indian Country- More Important Than Ever

by Casey R. Ross; Director of the American Indian Law and Sovereignty Center and Clinical Professor, Oklahoma City University School of Law

The PDF in which this article appears can be dowloaded here: Bifocal Vol. 42 Issue 4.

Estate planning is important for everyone.  But, in tribal communities, estate planning is among the most important legal issues that impact individual native people.  In a pre-pandemic world, the stakes are high for ensuring access to estate planning services in Indian Country.  Post-pandemic, the stakes feel even higher. 

The American Indian Law and Sovereignty Center is an academic law and policy center at Oklahoma City University School of Law.  The center houses the American Indian Wills Clinic- which provides estate planning services to tribal citizens in the state of Oklahoma who own an interest in trust or restricted Indian land. 

In addition to serving the estate planning needs of American Indians in Oklahoma, the American Indian Wills Clinic also provides clinical legal education opportunities to law students at Oklahoma City University School of Law.  By offering the clinical experience, the program educates future lawyers and judges on complex substantive law while also providing instruction, assessment and guidance for practical skills development.  American Indian Wills Clinic students learn by doing.  Law students are expected to interview clients, manage case files, work in a firm setting, analyze actual legal cases, draft and execute valid wills and provide client advisement under the supervision of the clinical professor supervising attorney.  The practical skills learned translate to practice in any area of the law.  The ongoing academic and practical assessments provide law students the opportunity to improve in practice under supervision, before they enter practice without such a safeguard.  Evaluations from clinic students are consistently favorable, with most crediting the clinic as their favorite course in law school.  Many former students return to the clinic to volunteer.  Many have attended wills service dates in tribal communities after graduation to continue support of the American Indian Wills Clinic clients.

Our clinic is in its 11th year of operation, and there is no sign the demand for seats in the clinic, or for the services offered will ever slow down.  The clinic has wonderful financial support from the Oklahoma Bar Foundation, which has supported our clinic since its inception.  The clinic also partners with the Indian Land Tenure Foundation, which utilizes our clinic as a service provider in its national network, to meet the shared goals of both organizations.

The American Indian Wills Clinic also coordinates efforts with Oklahoma Indian Legal Services (“OILS”), a legal aid entity that also provides will drafting services to American Indians in Oklahoma.  The American Indian Wills Clinic has even coordinated on-site estate planning days with OILS, where both organizations traveled to a tribal community to provide services on the same day.  There continues to be a close relationship between Oklahoma City University School of Law and OILS.  OILS staff attorneys serve as adjunct professors and guest lecturers at the law school, and law school faculty members serve on the Board of Directors at OILS.  The cooperative spirit between OILS and the American Indian Wills Clinic benefits the clients served by each. 

There are 38 federally recognized tribal governments within the State of Oklahoma.  Nearly 350,000 of Oklahoma’s citizens are American Indian or Alaska Native. 

Over 1 million acres of land within the State of Oklahoma are held in Indian status. 

Until 1907, the land within the State of Oklahoma belonged almost entirely to American Indian tribes.  After statehood, many Oklahoma tribal lands were subjected to the implementation of federal allotment policy.  Through that policy, Reservations were allotted, either in fee simple to individual Indians, or in trust held by the federal government for the benefit of individual Indians.  Once the allotment policy resulted in the allotment of parcels of land within a Reservation to tribal citizens, much of the remainder was opened up for non-native settlement and ownership. 

Today, those original allotments that remain in Indian status are found in high concentration within tribal communities in the state.  And- even within Reservation boundaries- there are parcels of land that are owned by non-native folks.  Indian-status lands are interspersed with non-native lands, leading to a checkerboard pattern in Oklahoma Indian Country.

Since the time of allotment, many original allotments have been distributed through intestate succession, leading to highly fractionated interests that get smaller by the generation.  In response to concerns with administering Indian lands, in 2004, Congress passed the American Indian Probate Reform Act.  This act amended the Indian Land Consolidation Act to create new procedures for the administration of trust and restricted property estates, specifically setting forth the intestate succession law that applies in both instances.  The Act was passed to eliminate confusion among various state laws, to reduce fractionalization of Indian land interests, and to create incentives for individual landholders to engage in estate planning.  The Act also expands the testamentary powers of individual landholders to dispose of property without compromising its Indian status. 

While AIPRA applies to most Indian status lands in Oklahoma, it does not apply to the Five Tribes (Cherokee, Choctaw, Chickasaw, Seminole, Muscogee (Creek)) or the Osage.  Lawyers working on estate plans for native clients in Oklahoma must understand the differences in applicable law depending on the tribal community in which Indian status lands are found.  Producing trained lawyers to navigate these legal issues for the large number of folks who need estate planning services became a calling at Oklahoma City University School of Law. 

Since 2009, the American Indian Wills Clinic has been on a mission to provide estate planning services in tribal communities in Oklahoma, to assist clients in navigating the various federal laws that apply specifically and singularly to Indian status lands.  Creation of a valid will eliminates most, if not all, of the confusion in the administration of Indian estates.  A will ensures that property will pass according to the wishes of the testator, rather than in accordance with intestate succession laws, which often times do not capture the cultural expectations of property disposition.  A will also reduces federal intervention in distribution of Indian land interests, and expedites the probate process. 

Our “normal” operation serves around 100 clients per academic year.  In the Spring semester of 2020, our clinic was moving right along providing services.  Then in March 2020, everything changed. 

Now that we are a year into the pandemic, data is being collected and reported on the impact of the virus on tribal communities.  Data show that native communities have been hit hard by the pandemic, and the statistics coming out of Indian Country are far worse than other demographics.  There are also some exacerbating factors that result in a deeper impact of the pandemic in tribal communities.  Tribal communities, as a whole, work constantly to increase access to health care in Indian Country- and the difficulties of an already strained system are much, much worse with the additional strain of the pandemic.

In March 2020, our University shifted from an in-person presence to a fully virtual presence for the remainder of the Spring 2020 semester.  Clinical students paused their work with clients, and there was no in-person client interaction due to mitigation strategies and restrictions on in-person activities.  Between March 2020 and August 2020, our clinic lost five clients to COVID-19.  These clients passed away without completing the estate planning documents we had hoped to finalize with them.  It was clear that something had to be done.   

Over the summer, our Program Coordinator Lori Harless and the clinic’s professor, Emily Eleftherakis, developed a proposed strategy for getting back out into the tribal communities to continue efforts to provide estate planning services to native elders.  Luckily- our collaborative partner, Oklahoma Indian Legal Services, had already developed some creative solutions for engaging with clients.  OILS’ approach served as a model, and the proposed strategy articulated mitigation strategies that would protect clients and students.  The University’s Emergency Operations Center reviewed the plan, and approved the clinic to resume limited in-person contact.

In-person contact between students and clients was minimized, and all tasks, other than the document execution meeting, were conducted by telephone, email, or video conference. 

On a typical wills service date, the professor, staff, students, and clients are all together in a room, with lots of close contact and lots of sharing materials like paper, pens, laptops and printers.  The mitigation strategies eliminated indoor in-person activity to only include the professor, staff, and a small number of students, all socially distanced, with masks and PPE.  Each person in the space brought an individual kit of materials, to eliminate the sharing of items.    

Clients were seen outdoors.  A “drive-thru” line was designed, where a client would pull up in his or her car, put on a mask, and roll down the car window.  A clinical student, the professor, witnesses, and a notary stood outside of the car window to observe the execution of the documents, without the client ever leaving the safety of the car.  Clipboards and pens were sanitized between each touch.     

Our clinic continues to provide services with these mitigation strategies in place, and will continue this approach until it is safe to return to “normal” interactions. 

The leadership provided by Clinical Professor Emily Eleftherakis, Program Coordinator Lori Harless, and the mentorship our clinic received from Executive Director Stephanie Hudson at OILS allowed clients to receive needed services and allowed students to participate fully in an experiential educational program.  I am so proud of the work of our clinical faculty, staff, and students, and I know we are all grateful for our many partners and supporters.  The American Indian Wills Clinic looks forward to continuing to serve a unique need in Oklahoma Indian Country. 

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