[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:''.
                                 <all>