[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2743 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 2743

  To reduce the fractionated ownership of Indian lands, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 24, 1997

 Mr. Young of Alaska (by request) introduced the following bill; which 
               was referred to the Committee on Resources

_______________________________________________________________________

                                 A BILL


 
  To reduce the fractionated ownership of Indian lands, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Indian Land Consolidation Amendment 
Act of 1997''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) In the 1800's and early 1900's, the United States 
        sought to assimilate Indian people into the surrounding non-
        Indian culture by allotting tribal lands to individual tribal 
        members.
            (2) Many trust allotments were taken out of trust status 
        and sold by their Indian owners.
            (3) The trust periods for trust allotments have been 
        extended indefinitely; however, because of the inheritance 
        provisions in the original treaties or allotment Acts, the 
        ownership of many of the allotments that have remained in trust 
        status have become fractionated into hundreds or thousands of 
        interests many of which represent less than 2 percent of the 
        total interest in the allotment.
            (4) Congress has authorized acquisition of lands held in 
        trust for individual Indians and many of these lands have 
        become and continue to be fractionated by subsequent 
        inheritance.
            (5) These fractional interests provide little or no return 
        to their beneficial owners and cost the United States 
        inordinate amounts in administrative costs.
            (6) In 1983, Congress enacted the Indian Land Consolidation 
        Act. Substantial numbers of 2 percent or less fractional 
        interests have escheated to tribes pursuant to section 207 of 
        the Indian Land Consolidation Act. However, the United States 
        Supreme Court found the application of section 207 to the facts 
        presented in Babbitt v. Youpee (117 S.Ct. 727) to be 
        unconstitutional. Thus, in the absence of remedial legislation, 
        the number of fractional interests will continue to grow.
            (7) The problem of fractionation was caused by Federal 
        policy and required a Federal legislative solution.

SEC. 3. DECLARATION OF POLICY.

    It is the policy of this Act to--
            (1) prevent the further fractionation of trust lands;
            (2) to consolidate fractionated interests and ownership of 
        those interests in Indian trust lands into usable parcels;
            (3) to vest beneficial title to such parcels in the tribes 
        on whose reservations the lands are located; and
            (4) to promote tribal self-sufficiency and self-
        determination.

SEC. 4. AMENDMENTS TO THE INDIAN LAND CONSOLIDATION ACT.

    The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) is 
amended as follows:
            (1) Section 202 is amended--
                    (A) by striking paragraph (2) and inserting the 
                following:
            ``(2) `Indian' means a person who is a member of an Indian 
        tribe or a person who is eligible to become a member of an 
        Indian tribe at the time of the distribution of the assets of a 
        decedent's estate;'';
                    (B) by striking ``and'' at the end of paragraph 
                (3);
                    (C) by striking the period at the end of paragraph 
                (4) and inserting a semicolon; and
                    (D) by adding at the end the following:
            ``(5) `heirs of the first or second degree' means parents, 
        children, grandchildren, grandparents, brothers, and sisters of 
        the decedent; and
            ``(6) `Acquisition Fund' means the fund created pursuant to 
        section 216.''.
            (2) Section 203 is amended--
                    (A) by striking ``section 5'' and inserting 
                ``sections 5 and 7''; and
                    (B) by inserting ``or the creation of 
                reservations'' after ``land''.
            (3) Section 205 is amended--
                    (A) by striking the colon before ``Provided'' and 
                inserting ``. Interests owned by a tribe in a tract may 
                be included in the computation of the 50 per centum 
ownership requirement. Nothing'';
                    (B) by striking paragraph (3) and inserting the 
                following:
            ``(3) if a tribe does not have a land consolidation plan 
        approved pursuant to section 204, all purchases and sales 
        initiated under this section shall be subject to approval by 
        the Secretary.''.
            (5) Section 206 is amended to read as follows:

``SEC. 206. DESCENT AND DISTRIBUTION OF TRUST OR RESTRICTED LANDS; 
              TRIBAL ORDINANCE BARRING NONMEMBERS OF TRIBE FROM 
              INHERITANCE BY DEVISE OR DESCENT.

    ``(a) Tribal Probate Codes.--Notwithstanding any other provision of 
law, any tribe may adopt its own code of laws to govern descent and 
distribution of trust or restricted lands within that tribe's 
reservation or otherwise subject to that tribe's jurisdiction. Such 
codes may provide that, notwithstanding the provisions of section 207, 
only members of the tribe shall be entitled to receive by devise or 
descent any interest in trust or restricted lands within that tribe's 
reservation or otherwise subject to that tribe's jurisdiction.
    ``(b) Secretarial Approval.--(1) A tribal code enacted pursuant to 
subsection (a), or amendments to such codes, shall be subject to 
approval by the Secretary. The Secretary shall not approve any code 
that does not prevent or substantially reduce the further fractionation 
of trust or restricted lands. Any code approved pursuant to this 
subsection, or an amendment to such a code, shall not become effective 
until the effective date of section 207. For codes or amendments to a 
code enacted after the effective date of section 207, the code or 
amendments shall not be effective until at least six months after 
approval by the Secretary of the code or amendments. All codes shall 
affect only the estates of decedents whose death occurred on or after 
the effective date of the code or the related amendments to the code.
    ``(2) Repeal of any tribal code approved pursuant to this 
subsection shall require the approval of the Secretary and shall not be 
effective until at least six months after such approval. The repeal of 
a tribal code shall affect only the estates of decedents whose death 
occurred on or after the effective date of the repeal.
    ``(c) Probate of Estates in Tribal Court; United States Not an 
Indispensable Party.--(1) A tribe with a probate code approved pursuant 
to subsection (b) of this section may assume the responsibility for 
probating in tribal court the estates of decedents owning lands or 
interests in lands on the tribe's reservation, or who own lands or 
interests in lands otherwise subject to the tribe's jurisdiction. The 
United States shall not be an indispensable party to the proceeding in 
any probate proceeding initiated by a tribe pursuant to this 
subsection.
    ``(2) A tribe that elects to probate estates in tribal court under 
paragraph (1) shall promptly notify the agency of the Bureau of Indian 
Affairs that has jurisdiction over the tribe's lands of the final 
distribution of a decedent's interests in trust or restricted land.
    ``(3) If the Secretary determines that a tribe is not providing 
timely notice of the distribution of estates or that the Bureau of 
Indian Affairs' ability to maintain accurate financial and land records 
is being adversely affected, the Secretary may, after 30 days written 
notice to the tribe and after providing the tribe with an opportunity 
to respond to the notice, reassume the duty of probating estates 
involving interests in trust or restricted land.''.
            (6) Section 207 is amended to read as follows:

``SEC. 207. DESCENT AND DISTRIBUTION; ESCHEAT OF FRACTIONAL INTERESTS.

    ``(a) Descent and Distribution.--(1) Interests in trust or 
restricted lands may descend by testate or intestate succession only to 
Indians.
    ``(2) If a testator devises interests in the same parcel of trust 
or restricted land to more than one person, in the absence of express 
language in the devise to the contrary, the devise shall be presumed to 
create a joint tenancy with right of survivorship;
    ``(3) If an estate passes by intestate succession, only spouses and 
heirs of the first or second degree may inherit interests in trust or 
restricted lands in that estate. All interests in trust or restricted 
land passing by intestate succession shall create a joint tenancy with 
right of survivorship in the heirs to the estate.
    ``(4) If a person who is prohibited by law from receiving an 
interest in trust or restricted lands is a surviving spouse or child of 
a decedent--
            ``(A) any devise to such spouse or child shall be presumed, 
        unless a lesser estate is provided for in the decedent's will, 
        to create a life estate, if such is requested during the 
        probate of the decedent's estate by the spouse or child or by 
        the representative or the spouse or child if the spouse or 
        child is under a legal disability; and
            ``(B) in the absence of a will, a life estate shall be 
        created for a spouse or child or a decedent, if such is 
        requested during the probate of the decedent's estate by the 
        spouse or child or by the representative or the spouse or child 
        if the spouse or child is under a legal disability;
    ``(5) If no individual is eligible to receive an interest in trust 
or restricted lands, the interest shall escheat to the tribe having 
jurisdiction over the trust or restricted lands, subject to any life 
estate that may be created pursuant to this subsection.
    ``(6) Upon the death of an individual holding an interest in trust 
or restricted lands which are located outside the boundaries of a 
reservation and which are not subject to the jurisdiction of any tribe, 
such interest shall descend--
            ``(A) testate or intestate succession in trust to the 
        spouse or heirs of the first or second degree of the decedent; 
        or
            ``(B) to any other devisees or heirs.
    ``(7) Upon the death of an individual holding an interest in 
restricted lands issued pursuant to the Act of May 17, 1906 (34 Stat. 
197) or the Act of May 25, 1926 (44 Stat. 629) that are not subject to 
the jurisdiction of any tribe, such interest shall descend--
            ``(A) in testate or intestate succession in restricted 
        status to the spouse or heirs of the first or second degree of 
        the descendent; or
            ``(B) to any other devisees or heirs.
    ``(b) Escheatable Fractional Interests.--Notwithstanding the 
provisions of subsection (a), no undivided interest which represents 2 
per centum or less of the total acreage in a tract of trust or 
restricted land shall pass by intestacy but shall escheat to the tribe 
on whose reservation the interest is located, or if the land is outside 
of a reservation, to the recognized tribal government possessing 
jurisdiction over such land.
    ``(c) Effective Date.--The provisions of this section shall become 
effective 2 years after the date of the enactment of the Indian Land 
Consolidation Amendment Act of 1997, and shall apply only to those 
estates of decedents whose death occurred on or after such date.''.
            (7) Section 208 is amended to read as follows:

``SEC. 208. FULL FAITH AND CREDIT TO TRIBAL ACTIONS UNDER TRIBAL 
              ORDINANCES LIMITING DESCENT AND DISTRIBUTION OF TRUST OR 
              RESTRICTED OR CONTROLLED LANDS.

    ``In carrying out the responsibility to determine the heirs of 
trust and restricted lands of a tribe pursuant to the first section of 
the Act of June 25, 1910 (25 U.S.C. 372), the Secretary shall apply the 
rules of devise and descent contained in the tribal probate code 
approved pursuant to section 206, and shall give full faith and credit 
to any probates conducted by a tribal court pursuant to an approved 
tribal probate code.''.
            (8) Section 209 is amended to read as follows:

``SEC. 209. CONVEYANCE AUTHORITY UPON SALE OR EXCHANGE OF TRIBAL LANDS; 
              REMOVAL OF TRUST STATUS OF INDIVIDUALLY OWNED LANDS.

    ``The Secretary shall have the authority to issue deeds, patents, 
disclaimers, or such other instruments of conveyance or transfer as may 
be needed to effectuate or perfect a sale, partition, exchange, or 
transfer of tribal lands and individual trust or restricted lands or 
interests therein which are made pursuant to the terms of this Act or 
of the first section of the Act of June 25, 1910 (25 U.S.C. 372), the 
Act of May 18, 1916 (25 U.S.C. 378), section 7 of the Act of May 27, 
1902 (25 U.S.C. 379), the Act of May 29, 1908 (25 U.S.C. 404), or the 
Act of March 1, 1907 (25 U.S.C. 405), including the authority to 
eliminate the trust status, or remove restrictions on alienation, of 
individually held lands or interests therein as authorized by this Act 
or the first section of the Act of June 25, 1910 (25 U.S.C. 372), the 
Act of May 18, 1916 (25 U.S.C. 378), section 7 of the Act of May 27, 
1902 (25 U.S.C. 379), the Act of May 29, 1908 (25 U.S.C. 404), or the 
Act of March 1, 1907 (25 U.S.C. 405), and when requested by the 
individual Indian owners.''.
            (9) The Indian Land Consolidation Act is amended by adding 
        after section 212 the following:

``SEC. 213. ACQUISITION OF FRACTIONAL INTERESTS.

    ``(a) The Secretary is authorized to acquire, with the consent of 
its owner and at fair market value, any fractional interest in trust or 
restricted lands. The Secretary shall give priority to the acquisition 
of fractional interests representing 2 per centum or less of a parcel 
of trust or restricted land. The Secretary shall hold in trust for the 
tribe that has jurisdiction over the fractional interest the title of 
all interests acquired pursuant to this section.
    ``(b) Any tribe with a land consolidation plan approved by the 
Secretary pursuant to section 204 may apply to the Secretary to enter 
into an agreement with the Secretary to implement the program to 
acquire fractional interests under subsection (a). In addition to the 
requirements set forth in sections 204 and 205, tribes applying for 
Federal funding of tribal land consolidation plans shall include in 
their applications the following:
            ``(1) A description of the tribe's dispute resolution 
        mechanisms and an assurance that individuals with interests in 
        trust or restricted land will have a forum to challenge any 
        value determinations made by the tribe in implementing its land 
        consolidation plan.
            ``(2) A financial statement indicating whether the tribe 
        has any resources to contribute to the financing of the 
        fractional interest acquisition program and the amount of that 
        contribution.
            ``(3) A statement that none of the Federal money received 
        to implement the fractional interest acquisition program will 
        be used to finance the acquisition of land by individual tribal 
        members.
            ``(4) A commitment to pay any rents or profits from, or the 
        proceeds of sales of fractional interests acquired pursuant to 
        subsection (a), to the Secretary in accordance with section 
        214.
    ``(c) Any agreement negotiated pursuant to this section shall not 
be subject to Public Law 93-638, or any regulations promulgated 
thereunder, but shall be subject solely to the provisions of this Act 
and the terms and conditions of such agreement. All such agreements 
shall provide that if funds made available to a tribe for the 
acquisition of fractional interests remain unexpended for 2 years, the 
funds shall revert to the Acquisition Fund.

``SEC. 214. ADMINISTRATION OF ACQUIRED FRACTIONAL INTERESTS; 
              DISPOSITION OF PROCEEDS.

    ``(a) A tribe receiving a fractional interest pursuant to sections 
207 and 213 may, as a tenant in common with the other owners of the 
trust or restricted land, lease the interest, sell the resources, 
consent to the granting of rights-of-way, or engage in any other 
transaction affecting the trust or restricted land authorized by law.
    ``(b) Until the purchase price paid by the Secretary pursuant to 
this Act for an interest in trust or restricted land has been 
recovered, any lease, resource sale contract, right-of-way, or other 
transaction affecting the interest shall contain a clause providing 
that all revenue derived from the interest shall be paid to the 
Secretary. The Secretary shall deposit all such revenue in the 
Acquisition Fund.
    ``(c) Notwithstanding section 476 of title 25, United States Code, 
or any other provision of law, so long as a tribe is a tenant in common 
with individual Indian landowners on land acquired pursuant to sections 
207 and 213, the tribe shall enter into any transaction contemplated by 
this section if a majority of the remaining landowners consent to the 
transaction. If the tribe does not consent, the Secretary shall consent 
to the transaction on behalf of the tribe. For leases of allotted land 
that are authorized to be granted by the Secretary, the tribe shall be 
treated as if it were an individual Indian landowner.

``SEC. 215. ESTABLISHING FAIR MARKET VALUE.

    ``For the purposes of this Act, the Secretary may develop a 
reservation-wide system for establishing the fair market value of 
various types of lands and improvements which may govern the amounts 
offered for the purchase of interests in trust or restricted lands 
pursuant to section 213.

``SEC. 216. ACQUISITION FUND.

    ``The Secretary shall establish an Acquisition Fund to carry out 
this Act purposes of section 213 and to collect all revenues received 
from the lease, permit, or sale of resources from interests in trust or 
restricted lands transferred to tribes by the Secretary pursuant to 
section 213. Until the purchase price of an interest acquired pursuant 
to section 213 has been recovered, all proceeds from leases, permits, 
or resource sales derived from the interest shall be deposited in the 
Acquisition Fund and shall, as specified in advance in appropriations 
Acts, be available for the purpose of acquiring additional fractional 
interests.

``SEC. 217. DETERMINATION OF RESERVATION BOUNDARIES AND TRIBAL 
              JURISDICTION.

    ``Determinations of whether or not a parcel of land within an 
Indian reservation is otherwise subject to a tribe's jurisdiction shall 
be made by the Secretary. Review of these determinations shall be in 
the United States district court where the land is located.

``SEC. 218. REPORTS TO CONGRESS.

    ``Three years after the date of the enactment of the Indian Land 
Consolidation Amendments Act of 1997, and annually thereafter, the 
Secretary shall file a report indicating the number of fractional 
interests acquired and the impact of the reduction in the number of 
fractional interests on the Bureau of Indian Affairs' financial and 
realty recordkeeping systems. The Secretary, after consultation with 
the tribes, shall recommend any amendments or additional legislation 
necessary to make meaningful reductions in the number of fractional 
interests.

``SEC. 219. APPROVAL OF LEASES, RIGHTS-OF-WAY, AND SALES OF NATURAL 
              RESOURCES.

    ``The Secretary may approve any lease, right-of-way, sale of 
natural resources, or any other transaction affecting individually 
owned trust or restricted lands that requires approval by the 
Secretary, if the owners of a majority interest in the trust or 
restricted lands consent to the transaction and the Secretary 
determines that the transaction is in the best interest of the Indian 
owners. Upon such approval, the transaction shall be binding upon the 
owners of the minority interests in the trust or restricted land and 
all other parties to the transaction to the same extent as if all of 
the Indian owners had consented to the transaction.

``SEC. 220. REAL ESTATE TRANSACTIONS INVOLVING NONTRUST LANDS.

    ``Notwithstanding any other provision of law, any tribe may, on the 
same basis as any other person, buy, sell, mortgage, or otherwise 
acquire or dispose of lands or interests in land acquired after the 
effective date of the Indian Land Consolidation Amendments Act of 1997, 
and which are not held in trust or subject to a preexisting Federal 
restriction on alienation imposed by the United States, without the 
approval of the Congress or of the Secretary and such disposition shall 
create no liability on the part of the United States.''.

SEC. 4. NOTICE.

    Not later than 180 days after the enactment of this Act, the 
Secretary shall, to the extent practicable, notify tribes and 
individual landowners of the provisions of this Act. Notice pursuant to 
this section shall list estate planning options available to holders of 
trust or restricted lands.
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