As I sit down to write the final stages of my coverage of the American Indian Probate Reform Act, I remember the conversation I had recently with another expert in Indian heirship and probate matters. While disenrollment may not be a broad trend in Indian Country (yet), if the tribes that have it forefront and center don’t proceed in a careful fashion, disenrollment could spread like wildfire beyond the reaches of the West Coast.
It isn’t per se uncommon in Indian Country that someone will claim that someone isn’t related. While the best way to address that accusation or claim is DNA testing, it may not always be possible for a couple of reasons.
Microchondria DNA is the best form of DNA to trace heritage. This DNA is passed through the female side of the family tree. However, if a male child along the tree is born, thus passing the Indian heritage to the next successive female family member, the testing value of microchondrial DNA is brought into question. A son breaks the link from his mother to his daughter. Even if a DNA test is performed, it may produce a false positive or false negative and thus, it loses value as a way to test genetic markers for heritage.
This brings me to a second point. What happens when the parentage claim is brought forth years after the key people who are most affected and with the most to lose have long since died? Quality of DNA does deteriorate over time. More over, the value and relative accuracy of DNA testing has been a more recent development.
Bottom line is this. Absent any real evidence of fraud and the only known evidence is the word of someone against someone else, shouldn’t Indian Law practitioners and in fact tribes who seek to govern with real leadership require a Statute of Limitations? If someone has such knowledge, “the mum” isn’t golden. There is no valid reason why the issue must come up years later, if the bearer of the knowledge isn’t perpetuating a fraud and is assured of the truthfulness of her or his claim. After all, a possibly defamatory statement deserves a direct response and how can the people who would have had relevant knowledge speak up from beyond the grave?
I would suggest a “liberal” twenty (20) year Statute of Limitation for which a person who wishes to make such a claim to make her or his claim. If the person who the claim is primarily brought against has been dead for more than twenty years, no claim against parentage would be valid now. This means the deceased can remain deceased and the matter is and should be presumed moot.