[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1340 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 1340
To amend the Indian Land Consolidation Act to provide for probate
reform with respect to trust or restricted lands.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 2, 2001
Mr. Campbell introduced the following bill; which was read twice and
referred to the Committee on Indian Affairs
_______________________________________________________________________
A BILL
To amend the Indian Land Consolidation Act to provide for probate
reform with respect to trust or restricted lands.
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 Probate Reform Act of 2001''.
SEC. 2. AMENDMENTS TO THE INDIAN LAND CONSOLIDATION ACT.
(a) In General.--The Indian Land Consolidation Act (25 U.S.C. 2201
et seq.) is amended by adding at the end the following:
``Subtitle B--Indian Probate Reform
``SEC. 231. FINDINGS.
``Congress makes the following findings:
``(1) The General Allotment Act of 1887 (commonly known as
the ``Dawes Act''), which authorized the allotment of Indian
reservations, did not allow Indian allotment owners to provide
for the testamentary disposition of the land that was allotted
to such owners.
``(2) The Dawes Act provided that allotments would descend
according to State law of intestate succession based on the
location of the allotment.
``(3) The Federal Government's reliance on the State law of
intestate succession with respect to the descendency of
allotments has resulted in numerous problems to Indian tribes,
their members, and the Federal Government. These problems
include--
``(A) the increasing fractionated ownership of
trust and restricted land as these lands are inherited
by successive generations of owners as tenants in
common;
``(B) the application of different rules of
intestate succession to each of a decedent's interests
in trust and restricted land if such land is located
within the boundaries of different States which makes
probate planning unnecessarily difficult and impedes
efforts to provide probate planning assistance or
advice;
``(C) the absence of a uniform general probate code
for trust and restricted land which makes it difficult
for Indian tribes to work cooperatively to develop
tribal probate codes; and
``(D) the failure of Federal law to address or
provide for many of the essential elements of general
probate law, either directly or by reference, which is
unfair to the owners of trust and restricted land and
their heirs and devisees and which makes probate
planning more difficult.
``(4) Based on the problems identified in paragraph (3), a
uniform Federal probate code would likely--
``(A) reduce the number of unnecessary fractionated
interests in trust or restricted land;
``(B) facilitate efforts to provide probate
planning assistance and advice;
``(C) facilitate inter-tribal efforts to produce
tribal probate codes pursuant to section 206; and
``(D) provide essential elements of general probate
law that are not applicable on the date of enactment of
this subtitle to interests in trust or restricted land.
``SEC. 232. RULES RELATING TO INTESTATE INTERESTS AND PROBATE.
``(a) In General.--Any interest in trust or restricted land that is
not disposed of by a valid will shall--
``(1) descend according to a tribal probate code that is
approved pursuant to section 206; or
``(2) in the case of an interest in trust or restricted
land to which such a code does not apply, be considered an
`intestate interest' and descend pursuant to subsection (b),
this Act, and other applicable Federal law.
``(b) Intestate Succession.--An interest in trust or restricted
land described in subsection (a)(2) (intestate interest) shall descend
as provided for in this subsection in the following order:
``(1) Surviving indian spouse.--
``(A) Sole heir.--A surviving Indian spouse of the
decedent shall receive all of the decedent's intestate
interests if no Indian child or grandchild of the
decedent survives the decedent.
``(B) Other heirs.--A surviving Indian spouse of
the decedent shall receive a one-half interest in each
of the decedent's intestate interests if the decedent
is also survived by Indian children or grandchildren.
``(C) Heirs of the first or second degree other
than surviving indian spouse.--The one-half interest in
each of the decedent's intestate interests that do not
descend to the surviving Indian spouse under
subparagraph (B) shall descend in the following order:
``(i) To the Indian children of the
decedent in equal shares, or to the Indian
grandchildren of the decedent, if any, in equal
shares by right of representation if 1 or more
of the Indian children of the decedent do not
survive the decedent.
``(ii) If the decedent is not survived by
Indian children or grandchildren, to the
surviving Indian parent of the decedent, or to
both of the surviving Indian parents of the
decedent as joint tenants with the right of
survivorship.
``(iii) If the decedent is not survived by
any person who is eligible to inherit under
clause (i) or (ii), to the surviving Indian
brothers and sisters of the decedent.
``(iv) If the decedent is not survived by
any person who is eligible to inherit under
clause (i), (ii), or (iii), the intestate
interests shall descend, or may be acquired, as
provided for in section 207(a)(3)(B),
207(a)(4), or 207(a)(5).
``(2) No surviving indian spouse.--If the decedent is not
survived by an Indian spouse, the intestate interests of the
decedent shall descend to the individuals described in
subparagraphs (A) through (D) who survive the decedent in the
following order:
``(A) To the Indian children of the decedent in
equal shares, or to the Indian grandchildren of the
decedent, if any, in equal shares by right of
representation if 1 or more of the Indian children of
the decedent do not survive the decedent.
``(B) If the decedent is not survived by Indian
children or grandchildren, to the surviving Indian
parent of the decedent, or to both of the surviving
Indian parents of the decedent as joint tenants with
the right of survivorship.
``(C) If the decedent is not survived by any person
who is eligible to inherit under subparagraph (A) or
(B), to the surviving Indian brothers and sisters of
the decedent.
``(D) If the decent is not survived by any person
who is eligible to inherit under subparagraph (A), (B),
or (C), the intestate interests shall descend, or may
be acquired, as provided for in section 207(a)(3)(B),
207(a)(4), or 207(a)(5).
``(3) Surviving non-indian spouse.--
``(A) No descendants.--A surviving non-Indian
spouse of the decedent shall receive a life estate in
each of the intestate interests of the decedent
pursuant to section 207(b)(2) if the decedent is not
survived by any children or grandchildren.
``(B) Descendants.--A surviving non-Indian spouse
of the decedent shall receive a life estate in one-half
of the intestate interests of the decedent pursuant to
section 207(b)(2) if the decedent is survived by at
least one of the children or grandchildren of the
decedent.
``(C) Descendants other than surviving non-indian
spouse.--The one-half life estate interest in each of
the decedent's intestate interests that do not descend
to the surviving non-Indian spouse under subparagraph
(B) shall descend to the children of the decedent in
equal shares, or to the grandchildren of the decedent,
if any, in equal shares by right of representation if 1
or more of the children of the decedent do not survive
the decedent.
``(4) No surviving spouse or indian heirs.--If the decedent
is not survived by a spouse, a life estate in the intestate
interests of the decedent shall descend in the following order:
``(A) To the children of the decedent in equal
shares, or to the grandchildren of the decedent, if
any, in equal shares by right of representation if 1 or
more of the children of the decedent do not survive the
decedent.
``(B) If the decedent has no surviving children or
grandchildren, to the surviving parents of the
decedent.
``(5) Remainder interest from life estates.--The remainder
interest from a life estate established under paragraphs (3)
and (4) shall descend in the following order:
``(A) To the Indian children of the decedent in
equal shares, or to the Indian grandchildren of the
decedent, if any, in equal shares by right of
representation if 1 or more of the children of the
decedent do not survive the decedent.
``(B) If there are no surviving Indian children or
grandchildren of the decedent, to the surviving Indian
parent of the decedent or to both of the surviving
Indian parents of the decedent as joint tenant with the
right of survivorship.
``(C) If there is no surviving Indian child,
grandchild, or parent, to the surviving Indian brothers
or sisters of the decedent in equal shares.
``(D) If there is no surviving Indian descendant or
parent, brother or sister, the intestate interests of
the decedent shall descend, or may be acquired, as
provided for in section 207(a)(3)(B), 207(a)(4), or
207(a)(5).
``(c) Special Rule Relating to Survival.--For purposes of this
section, an individual who fails to survive a decedent by at least 120
hours is deemed to have predeceased the decedent for purposes of
intestate succession, and the heirs of the decedent shall be determined
accordingly. If it is not established by clear and convincing evidence
that an individual who would otherwise be an heir survived the decedent
by at least 120 hours, such individual shall be deemed to have failed
to survive for the required time-period for purposes of the preceding
sentence.
``(d) Pretermitted Spouses and Children.--
``(1) Spouses.--For purposes of this section, if the
surviving spouse of a testator married the testator after the
testator executed his or her will, the surviving spouse shall
receive the intestate share in trust or restricted land that
such spouse would have otherwise received if the testator had
died intestate. The preceding sentence shall not apply to an
interest in trust or restricted lands where--
``(A) the will is executed before the date
specified in section 234(a);
``(B) the testator's spouse is a non-Indian and the
testator has devised his or her interests in trust or
restricted land to an Indian or Indians;
``(C) it appears from the will or other evidence
that the will was made in contemplation of the
testator's marriage to the surviving spouse;
``(D) the will expresses the intention that it is
to be effective notwithstanding any subsequent
marriage; or
``(E) the testator provided for the spouse by a
transfer of funds or property outside of the will and
an intent that the transfer be in lieu of a
testamentary provision is demonstrated by the
testator's statements or is reasonably inferred from
the amount of the transfer or other evidence.
``(2) Children.--For purposes of this section, if a
testator executed his or her will prior to the birth of 1 or
more children of the testator and the omission is the product
of inadvertence rather than an intentional omission, such
children shall share in the decedent's intestate interests in
trust or restricted lands as if the decedent had died
intestate. Any person recognized as an heir by virtue of
adoption under the Act of July 8, 1940 (54 Stat 746) shall be
treated as a decedent's child under this section.
``(e) Divorce.--
``(1) Surviving spouse.--
``(A) In general.--For purposes of this section, an
individual who is divorced from the decedent, or whose
marriage to the decedent has been annulled, shall not
be considered to be a surviving spouse unless, by
virtue of a subsequent marriage, such individual is
married to the decedent at the time of death. A decree
of separation that does not terminate the status of
husband and wife shall not be considered a divorce for
purposes of this subsection.
``(B) Rule of construction.--Nothing in
subparagraph (A) shall be construed to prevent an
entity responsible for adjudicating interests in trust
or restricted land from giving force and effect to a
property right settlement if one of the parties to the
settlement dies before the issuance of a final decree
dissolving the marriage of the parties to the property
settlement.
``(2) Effect of subsequent divorce on a will or devise.--If
after executing a will the testator is divorced or the marriage
of the testator is annulled, upon the effective date of the
divorce or annulment any disposition of interests in trust or
restricted land made by the will to the former spouse shall be
deemed to be revoked unless the will expressly provides
otherwise. Property that is prevented from passing to a former
spouse based on the preceding sentence shall pass as if the
former spouse failed to survive the decedent. Any provision of
a will that is revoked solely by operation of this paragraph
shall be revived by the testator's remarriage to the former
spouse.
``(f) Notice.--To the extent practicable, the Secretary shall
notify the owners of trust and restricted land of the provisions of
this title. Such notice may, at the discretion of the Secretary, be
provided together with the notice required under section 207(g).
``SEC. 233. COLLECTION OF PAST-DUE AND OVER-DUE CHILD SUPPORT
``The Secretary shall establish procedures to provide for the
collection of past-due or over-due support obligations entered by a
tribal court or any other court of competent jurisdiction from the
revenue derived from an interests in trust or restricted land.
``SEC. 234. EFFECTIVE DATE.
``(a) In General.--The provisions of this title shall not apply to
the estate of an individual who dies prior to the later of--
``(1) the date that is 1 year after the date of enactment
of this subtitle; or
``(2) the date specified in section 207(g)(5).''.
(b) Other Amendments.--The Indian Land Consolidation Act (25 U.S.C.
2201 et seq.) is amended--
(1) by inserting after section 202, the following:
``Subtitle A--General Land Consolidation'';
(2) in section 206 (25 U.S.C. 2205)--
(A) in subsection (a)(3)--
(i) by striking ``The Secretary'' and
inserting the following:
``(A) In general.--The Secretary''; and
(ii) by adding at the end the following:
``(B) Tribal probate codes.--A tribal probate code
shall not prevent the devise of an interest in trust or
restricted land to non-members of the tribe unless the
code--
``(i) provides for the renouncing of
interests, reservation of life estates, and
payment of fair market value in the manner
prescribed under subsection (c)(2); and
``(ii) does not prohibit the devise of an
interest in an allotment to an Indian person if
such allotment was originally allotted to the
lineal ancestor of the devisee.''; and
(B) in subsection (c)(2)--
(i) in subparagraph (A)--
(I) by striking ``In general.--
Paragraph'' and inserting the
following:
``(A) Nonapplicability to certain interests.--
``(i) In general.--Paragraph'';
(II) by striking ``if, while'' and
inserting the following: ``if--
``(I) while'';
(III) by striking the period and
inserting ``; or'';
(IV) by adding at the end thereof
the following:
``(II) the interest is part of a
family farm that is devised to a member
of the decedent's family if the devisee
agrees that the Indian tribe that
exercises jurisdiction over the land
will have the opportunity to acquire
the interest for fair market value if
the interest is offered for sale to an
entity that is not a member of the
family of the owner of the land.
``(ii) Rule of construction.--Nothing in
clause (i)(II) shall be construed to prevent or
limit the ability of an owner of land to which
such clause applies to mortgage such land or to
limit the right of the entity holding such a
mortgage to foreclose or otherwise enforce such
a mortgage agreement pursuant to applicable
law.''; and
(ii) in subparagraph (B), by striking
``207(a)(6)(B)'' and inserting ``207(a)(6)'';
(3) in section 207 (25 U.S.C. 2206)--
(A) in subsection (a)(6), by striking subparagraph
(A) and inserting the following:
``(A) Devise to others.--
``(i) In general.--Notwithstanding
paragraph (2), an owner of trust or restricted
land--
``(I) who does not have an Indian
spouse or an Indian lineal descendant
may devise his or her interests in such
land to his or her spouse, lineal
descendant, heirs of the first or
second degree, or collateral heirs of
the first or second degree;
``(II) who does not have a spouse
or an Indian lineal descendent may
devise his or her interests in such
land to his or her lineal descendant,
heirs of the first or second degree, or
collateral heirs of the first or second
degree; or
``(III) who does not have a spouse
or lineal descendant may devise his or
her interests in such land to his or
her heirs of the first or second
degree, or collateral heirs of the
first or second degree.
``(ii) Rule of construction.--Any devise of
an interest in trust or restricted land under
clause (i) to a non-Indian will be construed to
devise a life estate unless the devise
explicitly states that the testator intends for
the devisee to take the interest in fee.
``(B) Unexercised rights of redemption.--
``(i) In general.--This subparagraph (B)
shall only apply to interests in trust or
restricted land that are held in trust or
restricted status as of the date of enactment
of the Indian Probate Reform Act of 2001, and
interests in any parcel of land, at least a
portion of which is in trust or restricted
status as of such date of enactment, that is
subject to a tax sale, tax foreclosure
proceeding, or similar proceeding.
``(ii) Exercise of right.--If the owner of
such an interest referred to in clause (i)
fails or refuses to exercise any right of
redemption that is available to that owner
under applicable law, the Indian tribe that
exercises jurisdiction over the trust or
restricted land referred to in such clause may
exercise such right of redemption.
``(iii) Penalties and assessments.--To the
extent permitted under the Constitution of the
United States, an Indian tribe acquiring an
interest under clause (i) may acquire such an
interest without being required to pay--
``(I) penalties; or
``(II) past due assessments that
exceed the fair market value of the
interest.''; and
(B) in subsection (g)(5), by striking ``this
section'' and inserting ``subsections (a) and (b)'';
and
(4) in section 217 (25 U.S.C. 2216)--
(A) in subsection (e)(3), by striking ``prospective
applicants for the leasing, use, or consolidation of''
and insert ``any person that is leasing, using or
consolidating, or is applying to, lease, use, or
consolidate,''; and
(B) in subsection (f)--
(i) by striking ``After the expiration of
the limitation period provided for in
subsection (b)(2) and prior'' and inserting
``Prior''; and
(ii) by striking ``sold, exchanged, or
otherwise conveyed under this section''.
(c) Issuance of Patents.--Section 5 of the Act of February 8, 1887
(24 Stat. 348) is amended by striking the second proviso and inserting
the following: ``Provided, That the rules of intestate succession under
the Indian Land Consolidation Act, or a tribal probate code approved
under such Act and regulations, shall apply thereto after such patents
have been executed and delivered:''.
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