A backlog in probate court at the Bureau of Indian Affairs has some Native Americans waiting months, years or generations for their cases to be decided.
The Department of the Interior, which houses the bureau, is responsible for distributing estates after a tribal member who has trust assets dies. The hearing and decision process for these estates regularly takes months, but if wills or heirs are contested or undecided before a tribal member dies, the case must be reviewed by the BIA — more complex cases like this can take years.
Going into fiscal 2024, there were over 32,000 probate cases stuck at the bureau, according to a Congressional Research Service report. At a House Appropriations Committee hearing in May, Interior Secretary Doug Burgum said that number had already ballooned to 48,000 unresolved probate cases.
The secretary told lawmakers he’d learned about the situation about two weeks before the hearing, and he described consequences of the probate backlog he’d heard about from tribal leaders.
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Burgum described neighborhoods where “a measurable percentage of the homes have got police tape around it, and boarded up, and can’t live there because it’s stuck in probate, and it’s stuck for years.”
And little progress has been made recently to improve or speed up the process.
In a meeting in early May, Burgum heard from tribal leaders about this backlog, according to Reggie Wassana, the governor of the Cheyenne and Arapaho Tribes.
“Sometimes the heirs actually pass away before the probate is ready. Then you have another pending probate, so you sometimes could have two probate people who actually may be deceased, waiting to be heard,” Wassana said.
Wassana said the group discussed the backlog and the need to streamline the process, and that Burgum seemed to be signaling “he was going to help the tribes as much as he could.”
Wassana also said it was relayed in the meeting that the DOI would put together a task force to address the backlog and decrease the probate caseload by implementing what the task force comes up with. During the hearing, Burgum confirmed “strike teams” had been created.
Oklahoma Attorney General Gentner Drummond told NOTUS that as a lawyer, his firm had a “robust Native American probate practice.” One case he worked with went to the BIA for review in 2016. The verdict came back last month.
“That’s nine years of delay, and I can’t explain that, other than the Bureau of Indian Affairs does not value or prioritize Native Americans over whom they have jurisdiction,” Drummond said, calling the backlog “egregious.”
“I could have handled the appeal in 15 minutes,” he added.
The CRS report says the DOI has made efforts in the last decade to improve the case backlog, including listening sessions with the tribes and streamlining the process for “small, funds-only estates.”
DOI spokesperson J. Elizabeth Peace told NOTUS in an email that the backlog exists because the cases are complex. “Gathering documents to prove an individual is an heir to an estate takes time.”
The department also said it’s looking into solutions using artificial intelligence.
“AI technology is being explored to further streamline the probate workflow, especially in the realm of data entry and the ability to search multiple databases to find individuals. This is an ongoing internal process,” Peace added.
Burgum said in the hearing that implementing AI could speed up the process for the “limited” number of lawyers available for tribal probate.
Still, Wassana and others say the probate court wait times are unacceptable.
“The timeliness of probates is really critical and not being taken care of in a responsive manner, and it should be,” Wassana said. “If you’re going to be a steward and have a judiciary responsibility to the tribes, you should at least do it in a timely manner.”
Tribal leaders have also alerted members of Congress to the problem — though there has not been any recent movement to fix it legislatively.
Martin Harvier, the president of the Salt River Pima-Maricopa Indian Community, told members of the House Appropriations Committee at a hearing in late February that the backlog is “rooted in too much regulatory red tape from the BIA.”
“We have assumed and made efficient the administration of many programs only to have BIA slow down the execution of important transactions,” Harvier said. “There are needless reviews of probate cases at many levels of the BIA that create delays from one to four months.”
Burgum, during the hearing in May, said he hopes the DOI and Congress can work together on the issue.
“It’s a trust responsibility for the federal government to be taking care of the resources of our tribal partners, and we can’t even process these basic functions for them. I mean, no other community would put up with this,” Burgum said in the hearing. “Name any other situation other than tribal where this wouldn’t be front-page news.”
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Em Luetkemeyer is a NOTUS reporter and an Allbritton Journalism Institute fellow.
This story was produced as part of a partnership between NOTUS and Oklahoma Watch.
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