A Case for Tribal Probate Courts

Sovereignty is the ability of a people to be self-governing. It is a society making its own laws reflective of its people. Courts play pivotal roles in sovereignty as part of self-governance is the system in which laws are enforced. Probate courts are microscopes, magnifying the values of a community and a family. Through these proceedings we see what items held value to a person. We learn about the relationships between family members and their past difficulties. Tribal probate courts can strengthen tribal sovereignty and self-governance by upholding the values of the community.

The purpose of probate is to have a neutral third party make a determination about the final disposition of a deceased loved one’s property in light of that person’s written and witnessed intent. The downside to these court proceedings is often the cost and time involved, as well as the further degradation it can cause to familial ties. Nonetheless, it is useful to have disputes settled by a disinterested party. Some turn to mediators or qualified neutrals to settle these issues. However, all parties must agree to those arrangements and be held to the result. For others, getting a court involved is the only way to finally get resolution and closure. Probate courts decide how to interpret a decedent’s intent and uphold the values of the community as codified by the probate code. Determining which family member inherits property when there is no will or trust is often decided by intestate succession sections of the code. 

Currently, the Minnesota Uniform Probate Code mandates that the entire estate (other than the homestead, exempt estates, and allowances) go to a spouse if the decedent had children and the decedent’s spouse is the parent of all of those children. Minn. Stat. Sec. 524.2-102. Otherwise, the spouse is entitled to “$225,000 plus one-half of any balance of the intestate estate” if the decedent had children that were not legally adopted or biological children of the decedent’s spouse. Id. The intent behind this law is most likely to ensure that the children of the deceased are provided for and that a step-parent is prevented from taking the entirety of the decedent’s property. It assumes that the spouse would take care of the children financially if the spouse were the parent of the children of the deceased. This intestate succession law demonstrates the values that are promulgated in the Minnesota state judicial system. Intestate succession laws can be different in a community where children are viewed as being the responsibility of a parent’s partner regardless of legal adoption or biological parentage. 

Judicial officers who preside over probate hearings must reflect the values of the community just as do probate codes. A judge or referee who does not have a background or understanding of the community can view the parties through a discolored lens. Take an intestate state court probate case that, among other issues, involves a question of who should inherit a spoon. To a judge who is not from or familiar with the community, it seems that this spoon is a piece of tangible personal property that should be distributed according to the intestate succession laws of Minnesota. It comes to light during the proceedings that this spoon is a ceremonial spoon that has been passed down for generations and that custom dictates who should inherit the spoon. The chain of custom can be broken if the person who is supposed to traditionally inherit is different than who inherits under the intestate succession distribution scheme. The state court judge’s hands are tied without a validly executed testate document, such as a Will, to supersede the intestacy laws. 

Tribal communities can enact, and have enacted, probate codes that specifically separate out ceremonial items from being passed down the way of other property. Ensuring that these items stay with the people who are meant to traditionally keep them enables customs to be maintained and bolsters tribal sovereignty. Tribal probate courts are therefore pivotal in furthering tribal sovereignty. This is merely one of the reasons why legal professionals and community members should encourage the funding and establishment of tribal probate courts.

Posted by Schuyler Tilson-Doheny

Please remember, this post provides educational information only and in no way constitutes legal advice.