Protect Your Cultural Resources

By Dorothy Alther, Executive Director

Protecting Native American cultural resources comes in two forms: “proactive” and “reactive.” I encourage tribes to engage in both approaches.

Proactive: Sign up for consultation early when a project or undertaking is in the planning stages. Early consultation allows you to build in mitigation measures, tribal monitoring requirements, and protocols for inadvertent discoveries. But state cultural resource protection laws require you to take proactive steps before consultation is required by a state agency, county, or city.

1. SB 18, passed on 2004, requires counties and cities who are proposing amendments to their “General Plan,” contact and consult with any tribe that might or does have cultural sites or places that could be impacted by the amendments. Bringing tribes into the process early will provide better guidance (and avoid less legal challenges later) for the city and county in the amendment process.

In order for your tribe to avail itself of this early consultation process, you must contact the Native American Heritage Commission (NAHC) and inform them that you want to be consulted with pursuant to SB 18. You will also need to provide the name of the tribal contact person and provide maps or some other descriptive means that identifies the area(s) that are important to the tribe. All tribal maps and designated areas provided to NAHC are kept confidential.

2. AB 52, passed in 2014, is more expansive than SB 18 and has early tribal consultation as its centerpiece. The law requires state agencies contemplating an undertakings on state lands to consult with tribes when the agency has issued a: (a) Notice of Preparation; (b) Notice of Mitigated Negative Declaration; or (c) Notice of Negative Declaration for a project. However, no consultation is required unless you have submitted in advance a written request to the agency that you want to be contacted and consulted with when an undertaking or project is being proposed in an area defined and described by the tribe.

3. “Most Likely Descendent (MLD)” make sure that your tribe has submitted to the NAHC the tribal contact person who will act as the tribe’s MLD for inadvertent discoveries of cultural resources.

Reactive: What do you do if a state agency, county, or city notifies you they have inadvertently unearthed or uncovered Native American remains or artifacts during project development? Under the law, work on the project must cease, and the government entity must contact the NAHC to determine who the tribal MLD is for the area where the remains were discovered.

You need to be ready to work with the government entity and formulate a plan on what the tribe wants done. Some recommendations: (a) dispatch tribal monitors and your archaeologist (if possible) to the site to protect the area; (b) develop a repatriation plan on how and when the human remains will be given to the tribe; (c) determine the disposition of the remains once they are turned over to the tribe; (d) make arrangements on where the remains will be stored until final disposition can be completed. Ensure tribal monitors are kept on-site during the remaining course of the project.

CILS is here to assist you with protecting your cultural resources. Contact your local CILS office for more information and assistance.

Where there is a Will, there is a Way

By Mark Vezzola, CILS Escondido office Directing Attorney

Pictured: Mark Vezzola CILS Escondido office Directing Attorney

With unemployment on the rise and our economic futures uncertain, making a will may not seem like a priority. But estate planning for Indian trust property is more important now than ever. The truth is that life is uncertain. Since we do not know what tomorrow holds, CILS strongly recommends people put their affairs in order today.

Why Should You Make an Indian Will?

Special rules apply to wills for Indian trust land. What we call “Indian trust lands” – those held in trust by the United States government for the benefit of tribes and individual Indians such as allotments – are governed by federal law. State probate courts, which usually administer a deceased person’s property according to a will or intestate succession laws (see below), have no jurisdiction over Indian trust land. Only the BIA or tribes (if they adopted a probate code) can probate such property.

If you die without a will a government will decide who gets your property. When a person dies without a valid will, his property transfers to his next of kin – spouse, children, grandchildren, etc. – under a plan called intestate succession. The American Indian Probate Reform Act of 2006 (AIPRA), a federal probate code for Indian lands, includes intestate provisions that dictate who inherits the land of deceased relatives. But what if you do not want your property going to your next of kin? Imagine a parent and child who had a falling out, or an elder worried about dividing a small amount of land among a large family? Failing to make a will places control in government hands.

Review your will periodically. Even people with Indian wills should review and update them accordingly as property changes hands, loved ones pass away, and families feud. Careful will drafting can avoid problems caused by these events, but a poorly written will or no will at all can result in unintended consequences, namely the Indian landowner’s property going to someone he or she does not wish to inherit it. The only way to ensure your wishes are honored is to create a valid will based on expert advice and update it as needed.

The BIA no longer offers will making services. People may remember the BIA once made form wills for Indian landowners and kept the signed originals on file at agency offices. The BIA ended the practice years ago and returned wills to their rightful owners. Today Indian landowners must contact CILS or another knowledgeable law office for help. We can help individuals protect their land and navigate the federal regulations on how to start the BIA probate process. Remember, until the BIA issues probate orders, the property stays in the name of the original owner.

Indian trust land cannot be put into a living trust. Finally, some Indian landowners seek out costly estate planning attorneys to place their Indian trust land into a living trust to avoid probate. Unfortunately, because Indian lands are already held in trust by the federal government, they cannot be put into another trust. While AIPRA does mention a “family trust,” congress never passed regulations explaining how to create one. Indian landowners are advised to contact CILS about making an Indian will before spending money on private estate planning attorneys who may not be familiar with federal Indian law.

How Can CILS Help You?

  • CILS offers no-cost will drafting services to income income-eligible clients. Individuals whose income exceeds the federal poverty guidelines pay low, competitive rates.
  • Our experience assisting clients, dealing with the BIA, and educating communities make CILS well prepared to advise clients and draft Indian wills.
  • In addition to Indian wills, CILS also assists clients with healthcare directives for medical decisions and powers of attorney to protect their wishes in the future.

For more information about AIPRA, click here: