Tuesday, August 20, 2013
Bradley Richardson, (South Dakota Law Review) has recently published an article entitled, Presumed Dead: Laying To Rest The Whereabouts Unknown, (July, 2013). South Dakota Law Review, Vol. 58, Issue 2, 2013. Provided below is the abstract from the article:
The Office of the Special Trustee for American Indians maintains a list of tribal members whose whereabouts are unknown, known as the Whereabouts Unknown list. These missing tribal members have Individual Indian Money ("IIM") accounts accruing value and interest gained from land held in trust by the United States Government. The "top 100" individuals on the Whereabouts Unknown list have IIM accounts valued at more than $100,000. Several of the individuals on the Whereabouts Unknown list, especially those in the "top 100, " are more than likely dead. For these missing tribal members, a presumption of death hearing in either state or tribal court is required before the Bureau of Indian Affairs will open a probate file. A probate file is required in order to distribute the missing tribal member's trust estate, which includes the IIM account, to their heirs. Legal practitioners must consider several factors prior to petitioning a court to declare a tribal member dead, including applicable standards of due diligence in investigating the disappearance, forum selection, burden of proof and the Office of the Special Trustee's role as trustee during the process. Failure to consider all factors can sharply reduce the value of an IIM account and delay the distribution of the trust assets to the heirs of the missing tribal members.