Chapter PRP.04 — Probate Code

Legislative History

1. Resolution No. 039-96, adopted July 23, 1996.

2. Resolution No. 120-97, adopted April 15, 1997.

Commentary

PART 1. GENERAL PROBATE PROVISIONS

This Part begins by setting out the purpose and philosophy of this Probate Code.

Section 6.1.1 provides that the code should be liberally interpreted to meet the following objections:

(A) To ensure that the property of decedents passes to the rightful heirs or beneficiaries.

(B) To comply with the decedent's wishes as much as possible.

(C) To comply with tribal custom and tradition.

(D) To provide a simple, efficient and inexpensive method for probate decedent's property.

(E) To prevent the transfer of land our of tribal ownership and control.

(F) To ensure that the rights of creditors of decedents are protected to the extent possible and fair.

(G) To promote and further the Tribe's inherent right to self-governance.

It is very useful to begin a probate code by getting forth the purpose and philosophy to guide the court in interpreting and applying the code. The Tribal Council should carefully review these objectives to determine whether these objectives are appropriate and consistent with the needs of the community.

Section 6.1.2 sets forth a long series of specific definitions due to the fact that probate law in general and Indian probate law specifically has a unique language which often needs explanation.

Section 6.1.3 provides for a broad statement of jurisdiction. It provides for the exercise of the greatest possible tribal jurisdiction over the probate of the estate of decedents who were domiciled or owned real or personal property on the Indian Reservation. Jurisdiction is not limited to Indian decedents or to tribal members. Instead, it allows the court to assert probate jurisdiction over anyone who was domiciled or owned real or personal property on the reservation. It does not mean that the court must assert jurisdiction in all of the potential cases - but it does give the court flexibility to assert jurisdiction when it is appropriate.

Sections 6.1.4 and 6.1.5 allow for the use of tribal custom and tradition. Section 6.1.4 is important because it allows anyone to renounce any property or interest and sets forth the procedure for renunciation of succession.

The remaining sections are standard general probate provisions as follows:

Section 6.1.6 - Allows relief when fraud is involved

Section 6.1.7 - Provides procedure for determining evidence of death

Section 6.1.8 - Allows for use of civil procedure and appellate review when appropriate

Section 6.1.9 - Sets forth judicial powers and duties

Section 6.1.10 - Sets out rules for records and copies

Section 6.1.11 - Allows for trials to the court