[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1721 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 1721
To amend the Indian Land Consolidation Act to improve provisions
relating to probate of trust and restricted land, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 14, 2003
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 improve provisions
relating to probate of trust and restricted land, 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 ``American Indian Probate Reform Act
of 2003''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Act of February 8, 1887 (commonly known as the
``Indian General Allotment Act'') (25 U.S.C. 331 et seq.),
which authorized the allotment of Indian reservations, did not
permit Indian allotment owners to provide for the testamentary
disposition of the land that was allotted to them;
(2) that Act provided that allotments would descend
according to State law of intestate succession based on the
location of the allotment;
(3) the reliance of the Federal Government on the State law
of intestate succession with respect to the descent of
allotments has resulted in numerous problems affecting Indian
tribes, members of Indian tribes, and the Federal Government,
including
(A) the increasingly fractionated ownership of
trust and restricted land as that land is inherited by
successive generations of owners as tenants in common;
(B) the application of different rules of intestate
succession to each interest of a decedent in or to
trust or restricted land if that land is located within
the boundaries of more than 1 State, which
application--
(i) makes probate planning unnecessarily
difficult; and
(ii) 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--
(i) is unfair to the owners of trust and
restricted land (and heirs and devisees of
owners); and
(ii) makes probate planning more difficult;
and
(4) a uniform Federal probate code would likely--
(A) reduce the number of fractionated interests in
trust or restricted land;
(B) facilitate efforts to provide probate planning
assistance and advice;
(C) facilitate intertribal efforts to produce
tribal probate codes in accordance with section 206 of
the Indian Land Consolidation Act (25 U.S.C. 2205); and
(D) provide essential elements of general probate
law that are not applicable on the date of enactment of
this Act to interests in trust or restricted land.
SEC. 3. INDIAN PROBATE REFORM.
(a) Testamentary Disposition.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by striking subsection
(a) and inserting the following:
``(a) Testamentary Disposition.--
``(1) General devise of an interest in trust or restricted
land.--
``(A) In general.--Subject to any applicable
Federal law relating to the devise or descent of trust
or restricted land, or a tribal probate code approved
by the Secretary in accordance with section 206, the
owner of an interest in trust or restricted land may
devise such an interest to--
``(i) an Indian tribe with jurisdiction
over the land; or
``(ii) any Indian; or
``(iii) any lineal descendant of the
testator; or
``(iv) any person who owns a preexisting
undivided trust or restricted interest in the
same parcel of land;
in trust or restricted status.
``(B) Rule of interpretation.--Any devise of an
interest in trust or restricted land or personal
property to a devisee listed in subparagraph (A) shall
be considered to be a devise of the interest in trust
or restricted status, unless--
``(i) language in the will clearly
evidences the testator's intent that the
interest is to vest in the devisee as a fee
interest without restrictions; or
``(ii) the interest devised is a life
estate.
``(2) Devise of trust or restricted land as a life estate
or in fee.--
``(A) In general.--Except as provided under any
applicable Federal law, any interest in trust or
restricted land that is not devised in accordance with
paragraph (1) may be devised only--
``(i) as a life estate without regard to
waste to any person, with the remainder being
devised only in accordance with subparagraph
(B) or paragraph (1); or
``(ii) except as provided in subparagraph
(B), in fee to any person.
``(B) Limitation.--Any interest in trust or
restricted land that is subject to section 4 of the Act
of June 18, 1934 (25 U.S.C. 464), may be devised only
in accordance with--
``(i) that section;
``(ii) subparagraph (A)(i); or
``(iii) paragraph (1).
``(3) General devise of an interest in trust or restricted
personal property.--
``(A) Trust or restricted personal property
defined.--The term `Trust or restricted personal
property' as used in this section includes--
``(i) all funds and securities of any kind
which are held in trust in an individual Indian
money account or otherwise supervised for the
decedent by the Secretary; and
``(ii) absent clear evidence to the
contrary, all personal property permanently
affixed to trust or restricted lands.
``(B) In general.--Subject to any applicable
Federal law relating to the devise or descent of such
trust or restricted personal property, or a tribal
probate code approved by the Secretary in accordance
with section 206, the owner of an interest in trust or
restricted personal property may devise such an
interest to any person or entity.
``(C) Maintenance as trust or restricted personal
property.--Except as provided in paragraph (1)(B),
where an interest in trust or restricted personal
property is devised to a devisee listed in paragraph
(1)(A), the Secretary shall maintain and continue to
manage such interests as trust or restricted personal
property.
``(D) Direct disbursement and distribution.--In the
case of a devise of an interest in trust or restricted
personal property to a devisee not listed in paragraph
(1)(A), the Secretary shall directly disburse and
distribute such personal property to the devisee.
``(4) Ineligible devisees of trust or restricted interest;
invalid wills.--Any interest in trust or restricted land or
personal property that is devised as a trust or restricted
interest to a devisee not listed in subparagraph (A) of
paragraph (1) shall descend to the devisee as a fee interest.
Any interest in trust or restricted land or personal property
that is not disposed of by a valid will shall descend in
accordance with the applicable law of intestate succession as
provided for in subsection (b).''.
(b) Nontestamentary Disposition.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by striking subsection
(b) and inserting the following:
``(b) Nontestamentary Disposition.--
``(1) Rules of descent.--Subject to any applicable Federal
law relating to the devise or descent of trust or restricted
property, any interest in trust or restricted property,
including personal property, that is not disposed of by a valid
will--
``(A) shall descend according to a tribal probate
code that is approved in accordance with section 206;
or
``(B) in the case of an interest in trust or
restricted property to which such a code does not
apply, shall descend in accordance with--
``(i) paragraphs (2) through (4); and
``(ii) other applicable Federal law.
``(2) Rules governing descent of estate.--
``(A) Surviving spouse.--If there is a surviving
spouse of the decedent, such spouse shall receive trust
and restricted property in the estate as follows:
``(i) If the decedent is survived by an
heir described in subparagraph (B) (i), (ii),
(iii), or (iv), the surviving spouse shall
receive \1/3\ of the trust or restricted
personal property of the decedent and a life
estate without regard to waste in the interests
in trust or restricted lands of the decedent.
``(ii) If there are no heirs described in
subparagraph (B) (i), (ii), (iii), or (iv), the
surviving spouse shall receive all of the trust
or restricted personal property of the decedent
and a life estate without regard to waste in
the trust or restricted lands.
``(iii) The remainder shall pass as set
forth in subparagraph (B).
``(B) Indian heirs.--Where there is no surviving
spouse of the decedent, or there is a remainder
pursuant to subparagraph (A), the estate or remainder
of the decedent shall, subject to subparagraph (A),
pass as follows:
``(i) To the Indian children of the
decedent (or if 1 or more of those Indian
children do not survive the decedent, the
Indian children of the deceased child of the
decedent, by right of representation, if such
Indian children of the child survive the
decedent) in equal shares.
``(ii) If the property does not pass under
clause (i), to the surviving Indian great-
grandchildren of the decedent in equal shares.
``(iii) If the property does not pass under
clause (i) or (ii), to the surviving Indian
brothers and sisters who are full siblings of
the decedent or who are half-siblings by blood
and not by marriage, in equal shares.
``(iv) If the property does not pass under
clause (i), (ii), or (iii), to the Indian
parent or parents of the decedent in equal
shares.
``(v) If the property does not pass under
clause (i), (ii), (iii), or (iv), to the Indian
tribe with jurisdiction over the interests in
trust or restricted lands;
except that notwithstanding clause (v), an Indian co-
owner (including the Indian tribe referred to in clause
(v)) of a parcel of trust or restricted land may
acquire an interest that would otherwise descend under
that clause by paying into the estate of the decedent,
before the close of the probate of the estate, the fair
market value of the interest in the land; if more than
1 Indian co-owner offers to pay for such interest, the
highest bidder shall acquire the interest.
``(C) No indian tribe.--If there is no Indian tribe
with jurisdiction over the interests in trust or
restricted lands that would otherwise descend under
subparagraph (B)(v), then such interests shall be
divided equally among co-owners of trust or restricted
interests in the parcel; if there are no such co-
owners, then the Secretary shall accumulate and hold
such interests in trust or restricted status for the
Indian tribe or tribes from which the decedent
descended.
``(3) Right of representation.--
``(A) In general.--Subject to subparagraph (B)--
``(i) the interests passing to children and
grandchildren of a decedent under paragraph (2)
shall be divided into as many equal shares as
there are surviving children of the decedent,
deceased children who have died before the
decedent without issue, and deceased children
who have died before the decedent and have left
grandchildren who survive the decedent; and
``(ii) 1 share shall pass to each surviving
child of the decedent and 1 share shall pass
equally divided among the surviving children of
a deceased child.
``(B) Exception for heirs of equal consanguinity.--
Notwithstanding subparagraph (A), when the persons
entitled to take under subparagraph (B)(i) of paragraph
(2) are all in the same degree of consanguinity to the
decedent, they shall take in equal shares.
``(4) Special rule relating to survival.--In the case of
intestate succession under this subsection, if an individual
fails to survive the decedent by at least 120 hours, as
established by clear and convincing evidence--
``(A) the individual shall be deemed to have
predeceased the decedent for the purpose of intestate
succession; and
``(B) the heirs of the decedent shall be determined
in accordance with this section.
``(5) Status of inherited interests.--A trust or restricted
interest in land or personal property that descends under the
provisions of this subsection (not including any interest in
land or personal property passing to a surviving spouse under
paragraph (2)(A)) shall continue to have the same trust or
restricted status in the hands of the heir as such interest had
immediately prior to the decedent's death.''.
(c) Section 207(c) of the Indian Land Consolidation Act (25 U.S.C.
2206 (c)) is amended by striking all that follows the heading, ``Joint
Tenancy; Right of Survivorship'', and inserting the following: ``If a
testator devises interests in the same parcel of trust or restricted
lands to more than 1 person, in the absence of express language in the
devise to the contrary, the devise shall be presumed to create joint
tenancy with the right of survivorship in the interests involved.''.
(d) Rule of Construction.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by adding at the end the
following:
``(h) Applicable Federal Law.--
``(1) In general.--Any references in subsections (a) and
(b) to applicable Federal law include--
``(A) Public Law 91-627 (84 Stat. 1874);
``(B) Public Law 92-377 (86 Stat. 530);
``(C) Public Law 92-443 (86 Stat. 744);
``(D) Public Law 96-274 (94 Stat. 537); and
``(E) Public Law 98-513 (98 Stat. 2411).
``(2) No effect on laws.--Nothing in this section amends or
otherwise affects the application of any law described in
paragraph (1), or any other Federal law that provides for the
devise and descent of any trust or restricted land located on a
specific Indian reservation or for the devise and descent of
the allotted lands of a specific tribe or specific tribes.
``(i) Rules of Interpretation.--In the absence of a contrary
intent, and except as otherwise provided under this Act or a tribal
probate code approved by the Secretary pursuant to section 206, wills
shall be construed as to trust and restricted land and personal
property in accordance with the following rules:
``(1) Construction that will passes all property.--A will
shall be construed to apply to all trust and restricted land
and personal property which the testator owned at his death,
including any such land or property acquired after the
execution of his will.
``(2) Class gifts.--
``(A) Terms of relationship that do not
differentiate relationships by blood from those by
affinity, such as `uncles', `aunts', `nieces' or
`nephews', are construed to exclude relatives by
affinity. Terms of relationship that do not
differentiate relationships by the half blood from
those by the whole blood, such as `brothers',
`sisters', `nieces', or `nephews', are construed to
include both types of relationships.
``(B) Meaning of `heirs' and `next of kin,' etc;
time of ascertaining class.--A devise of trust or
restricted land or trust funds to the testator's or
another designated person's `heirs', `next of kin',
`relatives', or `family' shall mean those persons,
including the spouse, who would be entitled to take
under the provisions of this Act for nontestamentary
disposition. The class is to be ascertained as of the date of the
testator's death.
``(C) Time for ascertaining class.--In construing a
devise to a class other than a class described in
subparagraph (B), the class shall be ascertained as of
the time the devise is to take effect in enjoyment. The
surviving issue of any member of the class who is then
dead shall take by right of representation the share
which their deceased ancestor would have taken.
``(3) Meaning of `die without issue' and similar phrases.--
In any devise under this chapter, the words `die without
issue', `die without leaving issue', `have no issue', or words
of a similar import shall be construed to mean that an
individual had no lineal descendants in his lifetime or at his
death, and not that there will be no lineal descendants at some
future time.
``(4) Persons born out of wedlock.--In construing
provisions of this chapter relating to lapsed and void devises,
and in construing a devise to a person or persons described by
relationship to the testator or to another, a person born out
of wedlock shall be considered the child of the natural mother
and also of the natural father.
``(5) Lapsed and void devises and legacies; shares not in
residue.--Where a devise of property that is not part of the
residuary estate fails or becomes void because--
``(A) the beneficiary has predeceased the testator;
``(B) the devise has been revoked by the testator;
or
``(C) the devise has been disclaimed by the
beneficiary;
the property shall, if not otherwise expressly provided for
under this Act or a tribal probate code, pass under the
residuary clause, if any, contained in the will.
``(6) Lapsed and void devises and legacies; shares in
residue.--When a devise as described in paragraph (7) shall be
included in a residuary clause of the will and shall not be
available to the issue of the devisee, and if the disposition
shall not be otherwise expressly provided for by a tribal
probate code, it shall pass to the other residuary devisees, if
any, in proportion to their respective shares or interests in
the residue.
``(7) Family cemetery plot.--If a family cemetery plot
owned by the testator at his decease is not mentioned in the
decedent's will, the ownership of the plot shall descend to his
heirs as if he had died intestate.
``(8) After-born heirs.--A child in gestation at the time
of decedent's death will be treated as having survived the
decedent if the child lives at least 120 hours after its birth.
``(9) Advancements of trust or restricted personal property
during lifetime; effect on distribution of estate.--
``(A) The trust or restricted personal property of
a decedent who dies intestate as to all or a portion of
his or her estate, given during the decedent's lifetime
to an heir of the decedent, shall be treated as an
advancement against the heir's inheritance, but only if
the decedent declared in a contemporaneous writing, or
the heir acknowledged in writing, that the gift is an
advancement or is to be taken into account in computing
the division and distribution of the decedent's
intestate estate.
``(B) For the purposes of this section, trust or
restricted personal property advanced during the
decedent's lifetime is valued as of the time the heir
came into possession or enjoyment of the property or as
of the time of the decedent's death, whichever occurs
first.
``(C) If the recipient of the property predeceases
the decedent, the property is not treated as an
advancement or taken into account in computing the
division and distribution of the decedent's intestate
estate unless the decedent's contemporaneous writing
provides otherwise.
``(10) Heirs related to decedent through 2 lines; single
share.--A person who is related to the decedent through 2 lines
of relationship is entitled to only a single share based on the
relationship that would entitle the person to the larger share.
``(j) Heirship by Killing.--
``(1) `Heir by killing' defined.--As used in this
subsection, `heir by killing' means any person who
participates, either as a principal or as an accessory before
the fact, in the willful and unlawful killing of the decedent.
``(2) No acquisition of property by killing.--Subject to
any applicable Federal law relating to the devise or descent of
trust or restricted property, no heir by killing shall in any
way acquire any interests in trust or restricted property as
the result of the death of the decedent, but such property
shall pass in accordance with this subsection.
``(3) Descent, distribution, and right of survivorship.--
The heir by killing shall be deemed to have predeceased the
decedent as to decedent's interests in trust or restricted
property which would have passed from the decedent or his
estate to the heir by killing--
``(A) under intestate succession under this
chapter;
``(B) under a tribal probate code, unless otherwise
provided for;
``(C) as the surviving spouse;
``(D) by devise;
``(E) as a reversion or a vested remainder;
``(F) as a survivorship interest; and
``(G) as a contingent remainder or executory or
other future interest.
``(4) Joint tenants, joint owners, and joint obligees.--
``(A) Any trust or restricted land or personal
property held by only the heir by killing and the
decedent as joint tenants, joint owners, or joint obligees shall pass
upon the death of the decedent to his or her estate, as if the heir by
killing had predeceased the decedent.
``(B) As to trust or restricted property held
jointly by 3 or more persons, including both the heir
by killing and the decedent, any income which would
have accrued to the heir by killing as a result of the
death of the decedent shall pass to the estate of the
decedent as if the heir by killing had predeceased the
decedent and any surviving joint tenants.
``(C) Notwithstanding any other provision of this
subsection, the decedent's interest in trust or
restricted property that is held in a joint tenancy
with the right of survivorship shall be severed from
the joint tenancy as though the property held in the
joint tenancy were to be severed and distributed
equally among the joint tenants and the decedent's
interest shall pass to his estate; the remainder of the
interests shall remain in joint tenancy with right of
survivorship among the surviving joint tenants.
``(5) Life estate for the life of another.--If the estate
is held by a third person whose possession expires upon the
death of the decedent, it shall remain in such person's hands
for the period of the life expectancy of the decedent.
``(6) Preadjudication rule.--
``(A) In general.--If a person has been charged,
whether by indictment, information, or otherwise by the
United States, a tribe, or any State, with voluntary
manslaughter or homicide in connection with a
decedent's death, then any and all trust or restricted
land or personal property that would otherwise pass to
that person from the decedent's estate shall not pass
or be distributed by the Secretary until the charges
have been resolved in accordance with the provisions of
this paragraph.
``(B) Dismissal or withdrawal.--Upon dismissal or
withdrawal of the charge, or upon a verdict of not
guilty, such land and funds shall pass as if no charge
had been filed or made.
``(C) Conviction.--Upon conviction of such person,
the trust and restricted land and personal property in
the estate shall pass in accordance with this
subsection.
``(7) Broad construction; policy of subsection.--This
subsection shall not be considered penal in nature, but shall
be construed broadly in order to effect the policy that no
person shall be allowed to profit by his own wrong, wherever
committed.
``(k) General Rules Governing Probate.--
``(1) Scope.--The provisions of this subsection shall apply
only to estates that are subject to probate under the
provisions of subsections (a) and (b).
``(2) Pretermitted spouses and children.--
``(A) Spouses.--
``(i) In general.--Except as provided in
clause (ii), if the surviving spouse of a
testator married the testator after the
testator executed the will of the testator, the
surviving spouse shall receive the intestate
share in trust or restricted land that the
spouse would have received if the testator had
died intestate.
``(ii) Exception.--Clause (i) shall not
apply to an interest in trust or restricted
land where--
``(I) the will of a testator is
executed before the date of enactment
of this subparagraph;
``(II)(aa) the spouse of a testator
is a non-Indian; and
``(bb) the testator devised the
interests in trust or restricted land
of the testator to 1 or more Indians;
``(III) it appears, based on an
examination of the will or other
evidence, that the will was made in
contemplation of the marriage of the
testator to the surviving spouse;
``(IV) the will expresses the
intention that the will is to be
effective notwithstanding any
subsequent marriage; or
``(V)(aa) the testator provided for
the spouse by a transfer of funds or
property outside the will; and
``(bb) an intent that the transfer
be in lieu of a testamentary provision
is demonstrated by statements of the
testator or through a reasonable
inference based on the amount of the
transfer or other evidence.
``(iii) Spouses married at the time of the
will.--Should the surviving spouse of the
testator be omitted from the will of the
testator, the surviving spouse shall be
treated, for purposes of trust or restricted
land or personal property in the testator's
estate, as though there was no will under the
provisions of section 207(b)(2)(A) if--
``(I) the testator and surviving
spouse were continuously married
without legal separation for the 10-
year period preceding the decedent's
death;
``(II) the testator and surviving
spouse have a surviving child who is
the child of the testator;
``(III) the surviving spouse has
made substantial payments on or
improvements to the trust or restricted
land in such estate; or
``(IV) the surviving spouse is
under a binding obligation to continue
making loan payments for the trust or
restricted land for a substantial
period of time;
except that if there is evidence that the
testator adequately provided for the surviving
spouse and any minor children by a transfer of
funds or property outside of the will, this
clause shall not apply.
``(iv) Defined terms.--The terms
`substantial payments or improvements' and
`substantial period of time' as used in
subparagraph (A)(iii) (III) and (IV) shall have
the meanings given to them in the regulations
adopted by the Secretary under the provisions
of this Act.
``(B) Children.--
``(i) In general.--If a testator executed
the will of the testator before the birth or
adoption of 1 or more children of the testator,
and the omission of the children from the will
is a product of inadvertence rather than an
intentional omission, the children shall share
in the intestate interests of the decedent in
trust or restricted land as if the decedent had
died intestate.
``(ii) Adopted heirs.--Any person
recognized as an heir by virtue of adoption
under the Act of July 8, 1940 (25 U.S.C. 372a),
shall be treated as the child of a decedent
under this subsection.
``(iii) Adopted-out children.--
``(I) In general.--For purposes of
this Act, an adopted person shall not
be considered the child or issue of his
natural parents, except in distributing
the estate of a natural kin, other than
the natural parent, who has maintained
a family relationship with the adopted
person. If a natural parent shall have
married the adopting parent, the
adopted person for purposes of
inheritance by, from and through him
shall also be considered the issue of
such natural parent.
``(II) Eligible heir pursuant to
other federal law or tribal law.--
Notwithstanding the provisions of
subparagraph (B)(iii)(I), other Federal
laws and laws of the Indian tribe with
jurisdiction over the trust or
restricted land may otherwise define
the inheritance rights of adopted-out
children.
``(3) Divorce.--
``(A) Surviving spouse.--
``(i) In general.--An individual who is
divorced from a 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, the individual
is married to the decedent at the time of death
of the decedent.
``(ii) Separation.--A decree of separation
that does not dissolve a marriage, and
terminate the status of husband and wife, shall
not be considered a divorce for the purpose of
this subsection.
``(iii) No effect on adjudications.--
Nothing in clause (i) prevents an entity
responsible for adjudicating an interest in
trust or restricted land from giving effect to
a property right settlement if 1 of the parties
to the settlement dies before the issuance of a
final decree dissolving the marriage of the
parties to the property settlement.
``(B) Effect of subsequent divorce on a will or
devise.--
``(i) In general.--If, after executing a
will, a testator is divorced or the marriage of
the testator is annulled, as of 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 of
the testator shall be considered to be revoked
unless the will expressly provides otherwise.
``(ii) Property.--Property that is
prevented from passing to a former spouse of a
decedent under clause (i) shall pass as if the
former spouse failed to survive the decedent.
``(iii) Provisions of wills.--Any provision
of a will that is considered to be revoked
solely by operation of this subparagraph shall
be revived by the remarriage of a testator to
the former spouse of the testator.
``(4) Notice.--
``(A) In general.--To the maximum extent
practicable, the Secretary shall notify each owner of
trust and restricted land of the provisions of this
Act.
``(B) Combined notices.--The notice under
subparagraph (A) may, at the discretion of the
Secretary, be provided with the notice required under
section 207(g).''.
SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN LANDS.
Section 205 of the Indian Land Consolidation Act (25 U.S.C. 2204)
is amended by adding at the end the following:
``(c) Partition of Highly Fractionated Indian Lands.--
``(1) Applicability.--This subsection shall be applicable
only to parcels of land (including surface and subsurface
interests, except with respect to a subsurface interest that
has been severed from the surface interest, in which case this
subsection shall apply only to the surface interest) which the
Secretary has determined, pursuant to paragraph (2)(B), to be
parcels of highly fractionated Indian land.
``(2) Requirements.--Subject to section 223 of this Act,
but notwithstanding any other provision of law, the Secretary
shall ensure that each partition action meets the following
requirements:
``(A) Request.--The Secretary shall commence a
process for partitioning a parcel of land by sale in
accordance with the provisions of this subsection upon
receipt of an application by--
``(i) the Indian tribe with jurisdiction
over the subject land that owns an undivided
interest in the parcel of land; or
``(ii) any person owning an undivided trust
or restricted interest in the parcel of land.
``(B) Determination.--Upon receipt of an
application pursuant to subparagraph (A), the Secretary
shall determine whether the subject parcel meets the
requirements set forth in section 202(6) (25 U.S.C.
2201(6)) to be classified as a parcel of highly
fractionated Indian land.
``(C) Consent requirements.--A parcel of land may
be partitioned under this subsection only with the
written consent of--
``(i) the Indian tribe with jurisdiction
over the subject land if such Indian tribe owns
an undivided interest in the parcel;
``(ii) any owner who, for the 3-year period
immediately preceding the date on which the
Secretary receives the application, has--
``(I) continuously maintained a
bona fide residence on the parcel; or
``(II) continuously operated a bona
fide farm, ranch, or other business on
the parcel; and
``(iii) the owners of at least 50 percent
of the undivided interests in the parcel if,
based on the final appraisal prepared pursuant
to subparagraph (F), the Secretary determines
that any person's undivided trust or restricted
interest in the parcel has a value in excess of
$1,000, except that the Secretary may consent
on behalf of undetermined heirs, minors, and
legal incompetents having no legal guardian,
and missing owners or owners whose whereabouts
are unknown but only after a search for such
owners has been completed in accordance with
the provisions of this subsection.
``(D) Preliminary appraisal.--After the Secretary
has determined that the subject parcel is a parcel of
highly fractionated Indian land pursuant to
subparagraph (B), the Secretary shall cause a
preliminary appraisal of the subject parcel to be made.
``(E) Notice to owners on completion of preliminary
appraisal.--Upon completion of the preliminary
appraisal, the Secretary shall give written notice of
the requested partition and preliminary appraisal to
all owners of undivided interests in the parcel, in
accordance with the following requirements:
``(i) Contents of notice.--The notice
required by this subsection shall state--
``(I) that a proceeding to
partition the parcel of land by sale
has been commenced;
``(II) the legal description of the
subject parcel;
``(III) the owner's ownership
interest in the subject parcel;
``(IV) the results of the
preliminary appraisal;
``(V) the owner's right to request
a copy of the preliminary appraisal;
``(VI) the owner's right to comment
on the proposed partition and the
preliminary appraisal;
``(VII) the date by which the
owner's comments must be received,
which shall not be less than 60 days
after the date that the notice is
mailed or published under paragraph
(2); and
``(VIII) the address for requesting
copies of the preliminary appraisal and
for submitting written comments.
``(ii) Manner of service.--
``(I) Service by mail.--The
Secretary shall attempt to provide all
owners of interests in the subject
parcel with actual notice of the
partition proceeding by mailing a copy
of the written notice described in
clause (i) by first class mail to each
such owner at the owner's last known
address. In the event the written
notice to an owner is returned
undelivered, the Secretary shall, in
accordance with regulations adopted to
implement the provisions of this
section, attempt to obtain a current
address for such owner by inquiring
with--
``(aa) the owner's
relatives, if any are known;
``(bb) the Indian tribe of
which the owner is a member;
and
``(cc) the Indian tribe
with jurisdiction over the
subject parcel.
``(II) Service by publication.--In
the event that the Secretary is unable
to serve the notice by mail pursuant to
subclause (II), the notice shall be
served by publishing the notice 2 times
in a newspaper of general circulation
in the county or counties where the subject parcel of land is located.
``(F) Final appraisal.--After reviewing and
considering comments or information submitted by any
owner of an interest in the parcel in response to the
notice required under subparagraph (E), the Secretary
may--
``(i) modify the preliminary appraisal and,
as modified, determine it to be the final
appraisal for the parcel; or
``(ii) determine that preliminary appraisal
should be the final appraisal for the parcel,
without modifications.
``(G) Notice to owners on determination of final
appraisal.--Upon making the determination under
subparagraph (F) the Secretary shall provide to each
owner of the parcel of land and the Indian tribe with
jurisdiction over the subject land, written notice
served in accordance with subparagraph (E)(ii)
stating--
``(i) the results of the final appraisal;
``(ii) the owner's right to review a copy
of the appraisal upon request; and
``(iii) that the land will be sold in
accordance with subparagraph (G) for not less
than the final appraised value subject to the
consent requirements under paragraph (2)(C).
``(H) Sale.--Subject to the requirements of
paragraph (2)(C), the Secretary shall--
``(i) provide every owner of the parcel of
land and the Indian tribe with jurisdiction
over the subject land with notice that--
``(I) the decision to partition by
sale is final; and
``(II) each owner has the right to
appeal the determination of the
Secretary to partition the parcel of
land by sale, including the right to
appeal the final appraisal;
``(ii) after providing public notice of the
sale pursuant to regulations adopted by the
Secretary to implement this subsection, offer
to sell the land by competitive bid for not
less than the final appraised value to the
highest bidder from among the following
eligible bidders:
``(I) any owner of a trust or
restricted interest in the parcel being
sold;
``(II) the Indian tribe, if any,
with jurisdiction over the parcel being
sold; and
``(III) any member of the Indian
tribe described in subclause (II); and
``(iii) if no bidder described in clause
(ii) presents a bid that equals or exceeds the
appraised value, provide notice to the owners
of the parcel of land and terminate the
partition process.
``(I) Decision not to sell.--If the required owners
do not consent to the partition by sale of the parcel
of land, in accordance with paragraph (2)(C), by a date
established by the Secretary, the Secretary shall
provide each Indian tribe with jurisdiction over the
subject land and each owner notice of that fact.
``(3) Enforcement.--
``(A) In general.--If a partition is approved under
this subsection and an owner of an interest in the
parcel of land refuses to surrender possession in
accordance with the partition decision, or refuses to
execute any conveyance necessary to implement the
partition, then any affected owner or the United States
may--
``(i) commence a civil action in the United
States district court for the district in which
the parcel of land is located; and
``(ii) request that the court issue an
appropriate order for the partition of the land
in kind or by sale.
``(B) Federal role.--With respect to any civil
action brought under subparagraph (A)--
``(i) the United States--
``(I) shall receive notice of the
civil action; and
``(II) may be a party to the civil
action; and
``(ii) the civil action shall not be
dismissed, and no relief requested shall be
denied, on the ground that the civil action is
1 against the United States or that the United
States is an indispensable party.
``(4) Regulations.--The Secretary is authorized to adopt
such regulations as may be necessary to implement the
provisions of this subsection.''.
SEC. 5. OWNER-MANAGED INTERESTS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) is
amended by adding at the end the following:
``SEC. 221. OWNER-MANAGED INTERESTS.
``(a) Purpose.--The purpose of this section is to provide a means
for the co-owners of trust or restricted interests in a parcel of land
to enter into surface leases of such parcel without approval of the
Secretary.
``(b) Mineral Interests.--Nothing in this section shall be
construed to limit or otherwise affect the application of any Federal
law requiring the Secretary to approve mineral leases or other
agreements for the development of the mineral interest in trust or
restricted land.
``(c) Owner Management.--
``(1) In general.--Notwithstanding any provision of Federal
law requiring the Secretary to approve individual Indian leases
or mortgages of individual Indian trust or restricted land,
where the owners of all of the undivided trust or restricted
interests in a parcel of land have submitted applications to
the Secretary pursuant to subsection (a), and the Secretary has
approved such applications under subsection (d), such owners
may, without further approval by the Secretary, do either of
the following with respect to their interest in such parcel:
``(A) Enter into a lease of the parcel for any
purpose authorized by section 1 of the Act of August 9,
1955 (25 U.S.C. 415(a)), for an initial term not to
exceed 25 years.
``(B) Renew any lease described in paragraph (1)
for 1 renewal term not to exceed 25 years.
``(2) Rule of construction.--No such lease or renewal of a
lease shall be effective until the owners of all undivided
trust or restricted interests in the parcel have executed such
lease or renewal.
``(d) Approval of Applications for Owner Management.--
``(1) In general.--Subject to the provisions of paragraph
(2), the Secretary shall approve an application for owner
management submitted by a qualified applicant pursuant to this
section unless the Secretary has reason to believe that the
applicant is submitting the application as the result of fraud
or undue influence.
``(2) Commencement of owner-management status.--
Notwithstanding the approval of 1 or more applications pursuant
to paragraph (1), no interest in a parcel of trust or
restricted land shall have owner-management status until
applications for all of the trust or restricted interests in
such parcel have been submitted and approved by the Secretary
pursuant to this section and in accordance with regulations
adopted pursuant to subsection (l).
``(e) Validity of Leases.--A lease of trust or restricted interests
in a parcel of land that is owner-managed under this section that
violates any requirement or limitation set forth in subsection (c)
shall be null and void and unenforceable against the owners of such
interests, or against the land, the interest or the United States.
``(f) Lease Revenues.--The Secretary shall not be responsible for
the collection of, or accounting for, any lease revenues accruing to
any interests subject to this section while such interest is in owner-
management status under the provisions of this section.
``(g) Jurisdiction.--
``(1) Jurisdiction unaffected by status.--The Indian tribe
with jurisdiction over an interest in trust or restricted land
that becomes owner-managed in accordance with this section
shall continue to have jurisdiction over the interest in trust
or restricted land to the same extent and in all respects the
tribe had prior to the interest acquiring owner managed status.
``(2) Persons using land.--Any person holding, leasing, or
otherwise using such interest in land shall be considered to
consent to the jurisdiction of the Indian tribe with
jurisdiction over the interest, including such tribe's laws and
regulations, if any, relating to the use, and any effects
associated with the use, of the interest.
``(h) Continuation of Owner-Managed Status; Revocation.--
``(1) In general.--Subject to the provisions of paragraph
(2), after the applications of the owners of all of the trust
or restricted interests in a parcel of land have been approved
by the Secretary pursuant to subsection (d), each such interest
shall continue in owner-managed status under this section
notwithstanding any subsequent conveyance of the interest in
trust or restricted status to another person or the subsequent
descent of the interest in trust or restricted status by
testate or intestate succession to 1 or more heirs.
``(2) Revocation.--Owner-managed status of an interest may
be revoked upon written request of owners (including the
parents or legal guardians of minors or incompetent owners) of
all trust or restricted interests in the parcel, submitted to
the Secretary in accordance with regulations adopted under
subsection (l). The revocation shall become effective as of the
date on which the last of all such requests have been delivered
to the Secretary.
``(3) Effect of revocation.--Revocation of owner-managed
status under paragraph (2) shall not affect the validity of any
lease made in accordance with the provisions of this section
prior to the effective date of the revocation, provided that,
after such revocation becomes effective, the Secretary shall be
responsible for the collection of, and accounting for, all
future lease revenues accruing to the trust or restricted
interests in the parcel from and after such effective date.
``(i) Defined Terms.--
``(1) For purposes of subsection (d)(1), the term
`qualified applicant' means--
``(A) a person over the age of 18 who owns a trust
or restricted interest in a parcel of land; and
``(B) the parent or legal guardian of a minor or
incompetent person who owns a trust or restricted
interest in a parcel of land.
``(2) For purposes of this section, the term `owner-managed
status' means, with respect to a trust or restricted interest,
that the interest--
``(A) is a trust or restricted interest in a parcel
of land for which applications covering all trust or
restricted interests in such parcel have been submitted
to and approved by the Secretary pursuant to subsection
(d);
``(B) may be leased without approval of the
Secretary pursuant to, and in a manner that is
consistent with the requirements of, this section; and
``(C) no revocation has occurred under subsection
(h)(2).
``(j) Secretarial Approval of Other Transactions.--Except with
respect to the specific lease transactions described in paragraphs (1)
and (2) of subsection (c), interests held in owner-managed status under
the provisions of this section shall continue to be subject to all
Federal laws requiring the Secretary to approve transactions involving
trust or restricted land that would otherwise apply to such interests.
``(k) Effect of Section.--Subject to subsections (c), (f), and (h),
nothing in this section limits or otherwise affects any authority or
responsibility of the Secretary with respect to an interest in trust or
restricted land.
``(l) Regulations.--The Secretary shall promulgate such regulations
as are necessary to carry out this section.''.
SEC. 6. ADDITIONAL AMENDMENTS.
(a) In General.--The Indian Land Consolidation Act (25 U.S.C. 2201
et seq.) is amended--
(1) in the second sentence of section 205(a) (25 U.S.C.
2204(a)), by striking ``over 50 per centum of the undivided
interests'' and inserting ``undivided interests equal to at
least 50 percent of the undivided interest'';
(2) in section 205 (25 U.S.C. 2204), by adding subsection
(c) as follows:
``(c) Purchase Option at Probate.--
``(1) In general.--Subject to section 207(b)(2)(A) of this
Act (25 U.S.C. 2206(b)(2)(A)), interests in a parcel of trust
or restricted land in the decedent's estate may be purchased at
probate in accordance with the provisions of this subsection.
``(2) Sale of interest at minimum fair market value.--
Subject to paragraph (3), the Secretary is authorized to sell
trust or restricted interests subject to this subsection at no
less than fair market value to the highest bidder from among
the following eligible bidders:
``(A) The heirs taking by intestate succession or
the devisees listed in section 207(a)(1)(A).
``(B) All persons who own undivided trust or
restricted interests in the same parcel of land
involved in the probate proceeding.
``(C) The Indian tribe with jurisdiction over the
interest, or the Secretary on behalf of such Indian
tribe.
``(3) Request for auction.--No auction and sale of an
interest in probate shall occur under this subsection unless--
``(A) except as provided in paragraph (6), the
heirs or devises of such interest consent to the sale;
and
``(B) a person or the Indian tribe eligible to bid
on the interest under paragraph (2) submits a request
for the auction prior to the distribution of the
interest to heirs or devisees of the decedent and in
accordance with any regulations of the Secretary.
``(4) Appraisal and notice.--Prior to the sale of an
interest pursuant to this subsection, the Secretary shall--
``(A) appraise the interest; and
``(B) publish notice of the time and place of the
auction (or the time and place for submitting sealed
bids), a description, and the appraised value, of the
interest to be sold.
``(5) Rights of surviving spouse.--Nothing in this
subsection shall be construed to diminish or otherwise affect
the rights of a surviving spouse under section 207(b)(2)(A).
``(6) Highly fractionated indian lands.--Notwithstanding
paragraph (3)(A), the consent of an heir shall not be required
for the auction and sale of an interest at probate under this
subsection if--
``(A) the interest is passing by intestate
succession; and
``(B) prior to the auction the Secretary determines
that the interest involved is an interest in a parcel
of highly fractionated Indian land.
``(7) Regulations.--The Secretary shall promulgate
regulations to implement the provisions of this subsection.'';
(3) in section 206 (25 U.S.C. 2205)--
(A) in subsection (a), by striking paragraph (3)
and inserting the following:
``(3) Tribal probate codes.--Except as provided in any
applicable Federal law, the Secretary shall not approve a
tribal probate code, or an amendment to such a code, that
prohibits the devise of an interest in trust or restricted land
by--
``(A) an Indian lineal descendant of the original
allottee; or
``(B) an Indian who is not a member of the Indian
tribe with jurisdiction over such an interest;
unless the code provides for--
``(i) the renouncing of interests to eligible devisees in
accordance with the code;
``(ii) the opportunity for a devisee who is the spouse or
lineal descendant of a testator to reserve a life estate
without regard to waste; and
``(iii) payment of fair market value in the manner
prescribed under subsection (c)(2).''; and
(B) in subsection (c)--
(i) in paragraph (1)--
(I) by striking the paragraph
heading and inserting the following:
``(1) Authority.--
``(A) In general.--'';
(II) in the first sentence of
subparagraph (A) (as redesignated by
clause (i)), by striking ``section
207(a)(6)(A) of this title'' and
inserting ``section 207(a)(2)(A)(ii) of
this title''; and
(III) by striking the last sentence
and inserting the following:
``(B) Transfer.--The Secretary shall transfer
payments received under subparagraph (A) to any person
or persons who would have received an interest in land
if the interest had not been acquired by the Indian
tribe in accordance with this paragraph.''; and
(ii) in paragraph (2)--
(I) in subparagraph (A)--
(aa) by striking the
subparagraph heading and all
that follows through
``Paragraph (1) shall not
apply'' and inserting the
following:
``(A) Inapplicability to certain interests.--
``(i) In general.--Paragraph (1) shall not
apply'';
(bb) in clause (i) (as
redesignated by item (aa)), by
striking ``if, while'' and
inserting the following: ``if--
``(I) while'';
(cc) by striking the period
at the end and inserting ``;
or''; and
(dd) by adding at the end
the following:
``(II)--
``(aa) the interest is part
of a family farm that is
devised to a member of the
family of the decedent; and
``(bb) the devisee agrees
that the Indian tribe with
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) Recording of interest.--On request
by an Indian tribe described in clause
(i)(II)(bb), a restriction relating to the
acquisition by the Indian tribe of an interest
in a family farm involved shall be recorded as
part of the deed relating to the interest
involved.
``(iii) Mortgage and foreclosure.--Nothing
in clause (i)(II) prevents or limits the
ability of an owner of land to which that
clause applies to mortgage the land or limit
the right of the entity holding such a mortgage
to foreclose or otherwise enforce such a
mortgage agreement in accordance with
applicable law.
``(iv) Definition of `member of the
family'.--In this paragraph, the term `member
of the family', with respect to a decedent or
landowner, means--
``(I) a lineal descendant of a
decedent or landowner;
``(II) a lineal descendant of the
grandparent of a decedent or landowner;
``(III) the spouse of a descendant
or landowner described in subclause (I)
or (II); and
``(IV) the spouse of a decedent or
landowner.'';
(4) in subparagraph (B), by striking ``subparagraph (A)''
and all that follows through ``207(a)(6)(B) of this title'' and
inserting ``paragraph (1)'';
(5) in section 207 (25 U.S.C. 2206), subsection (g)(5), by
striking ``this section'' and inserting ``subsections (a) and
(b)'';
(6) in section 213 (25 U.S.C. 2212)--
(A) by striking the section heading and inserting
the following:
``SEC. 2212. FRACTIONAL INTEREST ACQUISITION PROGRAM.'';
(B) in subsection (a)--
(i) by striking ``(2) Authority of
Secretary.--'' and all that follows through
``the Secretary shall submit'' and inserting
the following:
``(2) Authority of secretary.--The Secretary shall
submit''; and
(ii) by striking ``whether the program to
acquire fractional interests should be extended
or altered to make resources'' and inserting
``how the fractional interest acquisition
program should be enhanced to increase the
resources made'';
(C) in subsection (b), by striking paragraph (4)
and inserting the following:
``(4) shall minimize the administrative costs associated
with the land acquisition program through the use of policies
and procedures designed to accommodate the voluntary sale of
interests under the pilot program under this section,
notwithstanding the existence of any otherwise applicable
policy, procedure, or regulation, through the elimination of
duplicate--
``(A) conveyance documents;
``(B) administrative proceedings; and
``(C) transactions.''.
(D) in subsection (c)--
(i) in paragraph (1)--
(I) in subparagraph (A), by
striking ``at least 5 percent of the''
and inserting in its place ``an'';
(II) in subparagraph (A), by
inserting ``in such parcel'' following
``the Secretary shall convey an
interest'';
(III) in subparagraph (A), by
striking ``landowner upon payment'' and
all that follows and inserting the
following: ``landowner--
``(i) on payment by the Indian landowner of
the amount paid for the interest by the
Secretary; or
``(ii) if--
``(I) the Indian referred to in
this subparagraph provides assurances
that the purchase price will be paid by
pledging revenue from any source,
including trust resources; and
``(II) the Secretary determines
that the purchase price will be paid in
a timely and efficient manner.''; and
(IV) in subparagraph (B), by
inserting before the period at the end
the following: ``unless the interest is
subject to a foreclosure of a
mortgage in accordance with the Act of March 29, 1956 (25 U.S.C.
483a)''; and
(ii) in paragraph (3), by striking ``10
percent or more of the undivided interests''
and inserting ``an undivided interest'';
(7) in section 214 (25 U.S.C. 2213), by striking subsection
(b) and inserting the following:
``(b) Application of Revenue From Acquired Interests to Land
Consolidation Program.--
``(1) In general.--The Secretary shall have a lien on any
revenue accruing to an interest described in subsection (a)
until the Secretary provides for the removal of the lien under
paragraph (3), (4), or (5).
``(2) Requirements.--
``(A) In general.--Until the Secretary removes a
lien from an interest in land under paragraph (1)--
``(i) any lease, resource sale contract,
right-of-way, or other document evidencing a
transaction affecting the interest shall
contain a clause providing that all revenue
derived from the interest shall be paid to the
Secretary; and
``(ii) any revenue derived from any
interest acquired by the Secretary in
accordance with section 213 shall be deposited
in the fund created under section 216.
``(B) Approval of transactions.--Notwithstanding
section 16 of the Act of June 18, 1934 (commonly known
as the `Indian Reorganization Act') (25 U.S.C. 476), or
any other provision of law, until the Secretary removes
a lien from an interest in land under paragraph (1),
the Secretary may approve a transaction covered under
this section on behalf of an Indian tribe.
``(3) Removal of liens after findings.--The Secretary may
remove a lien referred to in paragraph (1) if the Secretary
makes a finding that--
``(A) the costs of administering the interest from
which revenue accrues under the lien will equal or
exceed the projected revenues for the parcel of land
involved;
``(B) in the discretion of the Secretary, it will
take an unreasonable period of time for the parcel of
land to generate revenue that equals the purchase price
paid for the interest; or
``(C) a subsequent decrease in the value of land or
commodities associated with the parcel of land make it
likely that the interest will be unable to generate
revenue that equals the purchase price paid for the
interest in a reasonable time.
``(4) Removal of liens upon payment into the acquisition
fund.--The Secretary shall remove a lien referred to in
paragraph (1) upon payment of an amount equal to the purchase
price of that interest in land into the Acquisition Fund
created under section 2215 of this title, except where the
tribe with jurisdiction over such interest in land authorizes
the Secretary to continue the lien in order to generate
additional acquisition funds.
``(5) Other removal of liens.--In accordance with
regulations to be promulgated by the Secretary, and in
consultation with tribal governments and other entities
described in section 213(b)(3), the Secretary shall
periodically remove liens referred to in paragraph (1) from
interests in land acquired by the Secretary.'';
(8) in section 216 (25 U.S.C. 2215)--
(A) in subsection (a), by striking paragraph (2)
and inserting the following:
``(2) collect all revenues received from the lease, permit,
or sale of resources from interests acquired under section 213
or paid by Indian landowners under section 213.''; and
(B) in subsection (b)--
(i) in paragraph (1)--
(I) in the matter preceding
subparagraph (A), by striking ``Subject
to paragraph (2), all'' and inserting
``All'';
(II) in subparagraph (A), by
striking ``and'' at the end;
(III) in subparagraph (B), by
striking the period at the end and
inserting ``; and''; and
(IV) by adding at the end the
following:
``(C) be used to acquire undivided interests on the
reservation from which the income was derived.''; and
(ii) by striking paragraph (2) and
inserting the following:
``(2) Use of funds.--The Secretary may use the revenue
deposited in the Acquisition Fund under paragraph (1) to
acquire some or all of the undivided interests in any parcels
of land in accordance with section 205.'';
(9) in section 217 (25 U.S.C. 2216)--
(A) in subsection (b)(1) by striking subparagraph
(B) and inserting a new subparagraph (B) as follows--
``(B) Waiver of requirement.--The requirement for
an estimate of value under subparagraph (A) may be
waived in writing by an owner of an interest in trust
or restricted land either selling, exchanging, or
conveying by gift deed for no or nominal consideration
such interest--
``(i) to an Indian person who is the
owner's spouse, brother, sister, lineal
ancestor, lineal descendant, or collateral
heir; or
``(ii) to an Indian co-owner or to a tribe
with jurisdiction over the subject parcel of
land, where the grantor owns a fractional
interest that represents 5 percent or less of
the parcel.''.
(B) in subsection (e), by striking the matter
preceding paragraph (1), and inserting
``Notwithstanding any other provision of law, the names
and mailing addresses of the owners of any interest in
trust or restricted lands, and information on the
location of the parcel and the percentage of undivided interest owned
by each individual shall, upon written request, be made available to--
'';
(C) in subsection (e)(1), by striking ``Indian'';
(D) 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
(E) by striking subsection (f) and inserting the
following:
``(f) Purchase of Land by Indian Tribe.--
``(1) In general.--Except as provided in paragraph (2),
before the Secretary approves an application to terminate the
trust status or remove the restrictions on alienation from a
parcel of trust or restricted land, the Indian tribe with
jurisdiction over the parcel shall have the opportunity--
``(A) to match any offer contained in the
application; or
``(B) in a case in which there is no purchase price
offered, to acquire the interest in the parcel by
paying the fair market value of the interest.
``(2) Exception for family farms.--
``(A) In general.--Paragraph (1) shall not apply to
a parcel of trust or restricted land that is part of a
family farm that is conveyed to a member of the family
of a landowner (as defined in section 206(c)(2)(A)(iv))
if the conveyance requires that in the event that the
interest is offered for sale to an entity that is not a
member of the family of the landowner, the Indian tribe
with jurisdiction over the land shall be afforded the
opportunity to purchase the interest pursuant to
paragraph (1).
``(B) Applicability of other provision.--Section
206(c)(2)(A) shall apply with respect to the recording
and mortgaging of any trust or restricted land referred
to in subparagraph (A).''; and
(10) in section 219(b)(1)(A) (25 U.S.C. 2218(b)(1)(A)), by
striking ``100'' and inserting ``90''.
(b) Definitions.--Section 202 of the Indian Land Consolidation Act
(25 U.S.C. 2201) is amended--
(1) by striking paragraph (2) and inserting the following:
``(2) `Indian' means--
``(A) any person who is a member of any Indian
tribe, is eligible to become a member of any Indian
tribe, or is an owner (as of the date of enactment of
the American Indian Probate Reform Act of 2003) of an
interest in trust or restricted land;
``(B) any person meeting the definition of Indian
under the Indian Reorganization Act (25 U.S.C. 479) and
the regulations promulgated thereunder;
``(C) any person not included in subparagraph (A)
or (B) who is a lineal descendant within 3 degrees of a
person described in subparagraph (A);
``(D) an owner of a trust or restricted interest in
a parcel of land for purposes of inheriting another
trust or restricted interest in such parcel; and
``(E) with respect to the ownership, devise, or
descent of trust or restricted land in the State of
California, any person who meets the definition of
`Indians of California' contained in the first section
of the Act of May 18, 1928 (25 U.S.C. 651), until
otherwise provided by Congress in accordance with
section 809(b) of the Indian Health Care Improvement
Act (25 U.S.C. 1679)(b)).''; and
(2) by adding at the end the following:
``(6) `Parcel of highly fractionated Indian land' means a
parcel of land that the Secretary, pursuant to authority under
a provision of this Act, determines to have at the time of the
determination--
``(A)(i) 100 or more but less than 200 co-owners of
undivided trust or restricted interests; and
``(ii) no undivided trust or restricted interest
owned by any 1 person which represents more than 2
percent of the total undivided ownership of the parcel;
or
``(B)(i) 200 or more but less than 350 co-owners of
undivided trust or restricted interests; and
``(ii) no undivided trust or restricted interest
owned by any 1 person which represents more than 5
percent of the total undivided ownership of the parcel;
or
``(C) 350 or more co-owners of undivided trust or
restricted interests.
``(7) `Person' means a natural person.''.
(c) Issuance of Patents.--Section 5 of the Act of February 8, 1887
(25 U.S.C. 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 (25 U.S.C. 2201 et
seq.) (including a tribal probate code approved under that Act or
regulations promulgated under that Act) shall apply to that land for
which patents have been executed and delivered:''.
(d) Transfers of Restricted Indian Land.--Section 4 of the Act of
June 18, 1934 (25 U.S.C. 464), is amended in the first proviso by--
(1) striking ``, in accordance with'' and all that follows
through ``or in which the subject matter of the corporation is
located,'';
(2) striking ``, except as provided by the Indian Land
Consolidation Act'' and all that follows through the colon; and
(3) inserting ``in accordance with the Indian Land
Consolidation Act (25 U.S.C. 2201 et seq.) (including a tribal
probate code approved under that Act or regulations promulgated
under that Act):''.
(e) Estate Planning.--
(1) Conduct of activities.--Section 207(f)(1) of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by striking
paragraph (1) and inserting the following--
``(1) In general.--
``(A) The activities conducted under this
subsection shall be conducted in accordance with any
applicable--
``(i) tribal probate code; or
``(ii) tribal land consolidation plan.
``(B) The Secretary shall provide estate planning
assistance in accordance with this subsection, to the
extent amounts are appropriated for such purpose.''.
(2) Requirements.--Section 207(f) of the Indian Land
Consolidation Act (25 U.S.C. 2206(f)) is amended by striking
``and'' at the end of subparagraph (A), redesignating
subparagraph (B) as subparagraph (D), and adding the
following--
``(B) dramatically increase the use of wills and
other methods of devise among Indian landowners;
``(C) substantially reduce the quantity and
complexity of Indian estates that pass intestate
through the probate process, while protecting the
rights and interests of Indian landowners; and''; and
(3) by striking ``(3) Contracts.--'' and inserting the
following--
``(3) Indian civil legal assistance grants.--In carrying
out this section, the Secretary shall award grants to nonprofit
entities, as defined under section 501(c)(3) of the Internal
Revenue Code of 1986, which provide legal assistance services
for Indian tribes, individual owners of interests in trust or
restricted lands, or Indian organizations pursuant to Federal
poverty guidelines which submit an application to the
Secretary, in such form and manner as the Secretary may
prescribe, for the provision of civil legal assistance to such
Indian tribes, individual owners, and Indian organizations for
the development of tribal probate codes, for estate planning
services or for other purposes consistent with the services
they provide to Indians and Indian tribes.''; and
(4) by adding at the end of section 207 (25 U.S.C. 2206)
the following:
``(k) Notification to Landowners.--
``(1) In general.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall provide to each
Indian landowner a report that lists, with respect to each
tract of trust or restricted land in which the Indian landowner
has an interest--
``(A) the location of the tract of land involved;
``(B) the identity of each other co-owner of
interests in the parcel of land; and
``(C) the percentage of ownership of each owner of
an interest in the tract.
``(2) Statutory construction.--Nothing in this subsection
shall preclude any individual Indian from obtaining from the
Secretary, upon the request of that individual, any information
specified in paragraph (1) before the expiration of the 2-year
period specified in paragraph (1).
``(3) Requirements for notification.--Each notification
made under paragraph (1) shall include information concerning
estate planning and land consolidation options under the
provisions of this Act and other applicable Federal law,
including information concerning--
``(A) the preparation and execution of wills;
``(B) negotiated sales;
``(C) gift deeds;
``(D) exchanges; and
``(E) life estates without regard to waste.
``(4) Prohibition.--No individual Indian may be denied
access to information relating to land in which that individual
has an interest described in this section on the basis of
section 552a of title 5, United States Code (commonly referred
to as the `Privacy Act').
``(l) Private and Family Trusts Pilot Project.--
``(1) Development pilot project.--
``(A) The Secretary shall consult with tribes,
individual landowner organizations, Indian advocacy
organizations, and other interested parties to--
``(i) develop a pilot project for the
creation and management of private and family
trusts for interests in trust or restricted
lands; and
``(ii) develop proposed rules, regulations,
and guidelines to implement the pilot project.
``(B) The pilot project shall commence on the date
of enactment of the American Indian Probate Reform Act
of 2003 and shall continue for 3 years after the date
of enactment of this subsection.
``(2) Characteristics of private and family trusts.--For
purposes of this subsection and any proposed rules,
regulations, or guidelines developed under this subsection--
``(A) the terms `private trust' and `family trust'
shall both mean trusts created pursuant to this
subsection for the management and administration of
interests in trust or restricted land, held by 1 or
more persons, which comprise the corpus of a trust, by
a private trustee subject to the approval of the
Secretary;
``(B) private and family trusts shall be created
and managed in furtherance of the purposes of the
Indian Land Consolidation Act (25 U.S.C. 2201 et seq.);
and
``(C) private and family trusts shall not be
construed to impair, impede, replace, abrogate, or
modify in any respect the trust duties or
responsibilities of the Secretary, nor shall anything
in this subsection or in any rules, regulations, or
guidelines developed under this subsection enable any
private or family trustee of interests in trust or
restricted lands to exercise any powers over such interests greater
than that held by the Secretary with respect to such interests.
``(3) Report to congress.--Prior to the expiration of the
pilot project provided for under this subsection, the Secretary
shall submit a report to Congress stating--
``(A) a description of the Secretary's consultation
with Indian tribes, individual landowner associations,
Indian advocacy organizations, and other parties
consulted with regarding the development of rules,
regulations, and/or guidelines for the creation and
management of private and family trusts over interests
in trust and restricted lands;
``(B) the feasibility of accurately tracking such
private and family trusts;
``(C) the impact that private and family trusts
would have with respect to the accomplishment of the
goals of the Indian Land Consolidation Act (25 U.S.C.
2201 et seq.); and
``(D) a final recommendation regarding whether to
adopt the creation of a permanent private and family
trust program as a management and consolidation measure
for interests in trust or restricted lands.''.
SEC. 7. UNCLAIMED AND ABANDONED PROPERTY.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) (as
amended by section 5) is amended by adding at the end the following:
``SEC. 222. UNCLAIMED AND ABANDONED PROPERTY.
``(a) Interests Presumed Abandoned.--An undivided trust or
restricted interest in a parcel of land owned by a person shall be
presumed abandoned and subject to the provisions of this section if the
Secretary makes a determination that--
``(1) a period of 6 consecutive years next preceding such
determination has passed during which the person owning such
interest has not made any indication or expression of interest
in the trust or restricted interest as set forth in subsection
(b);
``(2) the person owning the trust or restricted interest
was, at all times during the 6-year period described in
paragraph (1), over the age of 18; and
``(3) as of the expiration of the 6-year period described
in paragraph (1), such parcel was a parcel of highly
fractionated Indian land.
``(b) Indicators of Owner Interest.--For purposes of subsection
(a), an indication or expression of an owner's interest in the property
shall mean the owner or any person acting on behalf of the owner--
``(1) making a deposit to, withdrawal from, or inquiry into
an individual Indian money account associated with such
interest;
``(2) negotiating a Treasury check derived from such
interest or account;
``(3) providing the Secretary with a valid address; or
``(4) communicating with the Secretary regarding such
interest or account.
``(c) Related Property.--At the time that property is presumed to
be abandoned under this section, any other property right accrued or
accruing to the owner as a result of the interest, including funds in
an associated individual Indian money account, that has not previously
been presumed abandoned under this section, also shall be presumed
abandoned.
``(d) Annual List of Property; Notice to Owners.--No later than the
first day of November of each year, the Secretary shall prepare and
distribute a list of names of persons owning property presumed
abandoned under this section during the preceding fiscal year and
provide notice to such persons in accordance with the following
requirements:
``(1) Contents of annual list.--The list shall set forth--
``(A) the names of all persons owning interests in
land and property presumed to be abandoned under this
section;
``(B) with respect to each person named on the
list, the reservation, if any, and the county and State
in which the person's interest in land is located;
``(C) the reservation, if any, the city or town,
county and State of the person's last known address;
and
``(D) the name, address, and telephone number of
the official or officials within the Department of the
Interior to contact for purposes of identifying persons
or lands included on the list.
``(2) Distribution of list.--The list shall be distributed
to all regional offices and agencies of the Bureau of Indian
Affairs and to all reservations where land described on this
list is located and shall cause the list to be published in the
Federal Register within 15 days after the list is prepared.
``(3) Notice by mail.--In addition to publishing and
distributing the list described in paragraph (1), the Secretary
shall attempt to provide the persons owning such trust or
restricted interests with actual written notice that the
interest and any associated funds or property is presumed
abandoned under the provisions of this section. Such notice
shall be sent by first class mail to the owner at the owner's
last known address and shall include the following:
``(A) A legal description of the parcel of which
the interest is a part.
``(B) A description of the owner's interest.
``(C) A statement that the owner has not indicated
or expressed an interest in the trust or restricted
interest for a period of 6 consecutive years and that
such interest, and any funds in an associated
individual Indian money account, is presumed abandoned.
``(D) A statement that the interest will be
appraised and sold for its appraised value unless the
owner responds to the notice within 60 days after the
notice is mailed or published.
``(E) A statement that in the event the owner fails
to respond and the notice and the property is sold, the
proceeds of such sale and any funds in any associated
individual Indian money account will be deposited in an
unclaimed property account.
``(4) Search for whereabouts of owner.--If the notice
described in paragraph (3) is returned undelivered, the
Secretary shall attempt to locate the owner by--
``(A) searching publicly available records and
Federal records, including telephone and address
directories and using electronic search methods;
``(B) inquiring with--
``(i) the owner's relatives, if any are
known;
``(ii) any Indian tribe of which the owner
is a member; and
``(iii) the Indian tribe, if any, with
jurisdiction over the interest; and
``(C) if the value of the interest and any funds in
an associated individual Indian money account exceeds
$1,000, engaging an independent search firm to perform
a missing person search.
``(5) Notice by publication.--In the event that the
Secretary is unable to locate the owner pursuant to paragraph
(4), the Secretary shall publish a notice not later than
November 30 following the fiscal year in which the property was
presumed to be abandoned under this section. The notice shall
include the same information required for the notice described
in paragraph (3) and shall be--
``(A) published in a newspaper of general
circulation on or near the apparent owner's home
reservation and near the last known address of the
owner; and
``(B) in a form that is likely to attract the
attention of the apparent owner of the property.
``(e) Conversion of Abandoned Interests.--If, after 2 years from
the date the notice is published under subsection (d)(3), any such real
property or interest therein remains unclaimed, the Secretary shall
appraise such property in a manner consistent with section 215 of the
Indian Land Consolidation Act (25 U.S.C. 2214) and shall purchase the
property at its appraised value, or sell the property to an Indian
tribe with jurisdiction over such property or a person who owns an
undivided trust or restricted interest in such property, by competitive
bid for not less than the appraised value. The Secretary shall then
transfer any monetary interest that the Secretary holds for the
previous apparent owner to the unclaimed property account described in
subsection (f).
``(f) Unclaimed Property Account.--
``(1) Except as otherwise provided by this section, the
Secretary shall promptly deposit in a special unclaimed
property account all funds received under this section. The
Secretary shall pay all claims under subsection (g) from this
account. The Secretary shall record the name and last known
address of each person appearing to be entitled to the
property.
``(2) The Secretary is authorized to use interest earned on
the special unclaimed property account to pay--
``(A) the administrative costs of conversion of
real property under subsection (g); and
``(B) costs of mailing and publication in
connection with abandoned property.
``(3) The Secretary shall retain a sufficient balance in
the account at all times from which to pay claims duly allowed.
All other funds shall be available to the Secretary to use for
the purposes of land consolidation pursuant to 25 U.S.C. 2212.
``(g) Claims.--
``(1) Filing of claim.--An individual, or the heirs of an
individual, may file a claim to recover property or the
proceeds of the conversion of the property on a form prescribed
by the Secretary.
``(2) Allowance or denial of claim.--Not more than 180 days
after a claim is filed, the Secretary shall allow or deny the
claim and give written notice of the decision to the claimant.
If the claim is denied, the Secretary shall inform the claimant
of the reasons for the denial and specify what additional
evidence is required before the claim will be allowed. The
claimant may then file a new claim with the Secretary or
maintain an action under this subsection.
``(3) Payment of allowed claim.--Not more than 60 days
after a claim is allowed, the property or the net proceeds of
the conversion of the property shall be delivered or paid by
the Secretary to the claimant, together with any interest, or
other increment to which the claimant is entitled under this
section.
``(4) Judicial review.--An individual aggrieved by a
decision of the Secretary under this subsection or whose claim
has not been acted upon within 180 days may, after exhausting
administrative remedies, seek--
``(A) judicial review or other appropriate relief
against the Secretary in a United States district
court, which may include an order quieting beneficial
title in the name of petitioner whose property was sold
by the Secretary in violation of this section; and
``(B) recover reasonable attorneys fees if he is
the prevailing party.
``(h) Voluntary Abandonment.--Any person who is an owner of an
interest subject to this section may, with the Secretary's approval,
voluntarily abandon that interest to the benefit of the tribe with
jurisdiction over the parcel of land or a co-owner of a trust or
restricted interest in the same parcel of land in accordance with
regulations adopted pursuant to subsection (j).
``(i) Transfer of Abandoned Interests in Land.--
``(1) Any interest in land acquired under subsection (e) or
(h) over which an Indian tribe has jurisdiction shall be held
in trust by the Secretary for the benefit of that tribe,
provided that the tribe may decline any such property in its
discretion, and provided that if the tribe declines or does not
currently own any interest within that parcel a co-owner with a
majority interest shall have the first right of purchase of the
property at the appraised price.
``(2) Any interest in real property acquired under
subsection (e) or (h) that is not subject to the jurisdiction
of an Indian tribe shall be held in trust by the Secretary for
all of the other co-owners of undivided trust or restricted
interests in the parcel in proportion to their respective
interests in the property, provided that any owner may decline
to accept such interest, in which case that interest shall be
allocated proportionately among such other co-owners who do not
decline.
``(3) The Indian tribe or other subsequent owner described
in paragraph (2) takes such interest free of all claims by the
owner who abandoned the interest and of all persons claiming
through or under such owner.
``(j) Regulations.--The Secretary is authorized to adopt such
regulations as may be necessary to implement the provisions of this
section.''.
SEC. 8. MISSING HEIRS.
Section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206)
is amended by adding the following:
``(m) Notice.--Prior to holding a hearing to determine the heirs to
trust or restricted property, or making a decision determining such
heirs, the Secretary shall seek to provide actual written notice of the
proceedings to all heirs, including notice of the provisions of this
subsection and of section 207(n) of this Act. Such efforts shall
include--
``(1) a search of publicly available records and Federal
records, including telephone and address directories and
including electronic search methods;
``(2) an inquiry with family members and co-heirs of the
property;
``(3) an inquiry with the tribal government of which the
owner is a member, and the tribal government with jurisdiction
over the property, if any; and
``(4) if the property is of a value greater than $1,000, an
independent firm shall be contracted to conduct a missing
persons search.
``(n) Missing Heirs.--
``(1) For purposes of this subsection and subsection (m),
an heir will be presumed missing if his whereabouts remain
unknown 60 days after completion of notice efforts under
subsection (m) and they have had no contact with other heirs or
the Department for 6 years prior to a hearing or decision to
ascertain heirs.
``(2) Before the date for declaring an heir missing, any
person may request an extension of time to locate an heir. An
extension may be granted for good cause.
``(3) An heir shall be declared missing only after a review
of the efforts made and a finding that this section has been
complied with.
``(4) A missing heir shall be presumed to have predeceased
the decedent for purposes of descent and devise.''.
SEC. 9. ANNUAL NOTICE AND FILING REQUIREMENT FOR OWNERS OF INTERESTS IN
TRUST OR RESTRICTED LANDS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) (as
amended by section 7) is amended by adding at the end the following:
``SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHEREABOUTS OF INTEREST
OWNERS.
``(a) In General.--On an annual basis, the Secretary shall send a
notice, response form, and a change of name and address form to each
owner of an interest in trust or restricted land. The notice shall
inform owners of their interest and obligation to provide the Secretary
with a notice of any change in their name or address immediately upon
such change. The response form should include a section in which the
owner may confirm or update his name and address. The change of name
and address form may be used by the owner at any time when his name or
address changes subsequent to his annual filing of the response form.
``(b) Owner Response.--The owner of an interest in trust or
restricted land shall file the response form upon receipt to confirm or
update his name and address on an annual basis.
``(c) No Response; Initiation of Search.--In the event that an
owner does not file the response form or provide the Secretary with a
confirmation or update of his name and address through other means, the
Secretary shall initiate a search in order to ascertain the whereabouts
and status of the owner.''.
SEC. 10. EFFECTIVE DATE.
The amendments made by this Act shall not apply to the estate of an
individual who dies before the later of--
(1) the date that is 1 year after the date of enactment of
this Act; or
(2) the date specified in section 207(g)(5) of the Indian
Land Consolidation Act (25 U.S.C. 2206(g)(5)).
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