[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1721 Reported in Senate (RS)]
Calendar No. 515
108th CONGRESS
2d Session
S. 1721
[Report No. 108-264]
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 (for himself and Mr. Thomas) introduced the following
bill; which was read twice and referred to the Committee on Indian
Affairs
May 13, 2004
Reported by Mr. Campbell, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``American Indian Probate
Reform Act of 2003''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds that--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (2) that Act provided that allotments would
descend according to State law of intestate succession based on
the location of the allotment;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (A) the increasingly fractionated
ownership of trust and restricted land as that land is
inherited by successive generations of owners as
tenants in common;</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (i) makes probate planning
unnecessarily difficult; and</DELETED>
<DELETED> (ii) impedes efforts to provide
probate planning assistance or
advice;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (i) is unfair to the owners of
trust and restricted land (and heirs and
devisees of owners); and</DELETED>
<DELETED> (ii) makes probate planning more
difficult; and</DELETED>
<DELETED> (4) a uniform Federal probate code would likely--
</DELETED>
<DELETED> (A) reduce the number of fractionated
interests in trust or restricted land;</DELETED>
<DELETED> (B) facilitate efforts to provide probate
planning assistance and advice;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 3. INDIAN PROBATE REFORM.</DELETED>
<DELETED> (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:</DELETED>
<DELETED> ``(a) Testamentary Disposition.--</DELETED>
<DELETED> ``(1) General devise of an interest in trust or
restricted land.--</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(i) an Indian tribe with
jurisdiction over the land; or</DELETED>
<DELETED> ``(ii) any Indian; or</DELETED>
<DELETED> ``(iii) any lineal descendant of
the testator; or</DELETED>
<DELETED> ``(iv) any person who owns a
preexisting undivided trust or restricted
interest in the same parcel of land;</DELETED>
<DELETED>in trust or restricted status.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) the interest devised is a
life estate.</DELETED>
<DELETED> ``(2) Devise of trust or restricted land as a life
estate or in fee.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) except as provided in
subparagraph (B), in fee to any
person.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(i) that section;</DELETED>
<DELETED> ``(ii) subparagraph (A)(i);
or</DELETED>
<DELETED> ``(iii) paragraph (1).</DELETED>
<DELETED> ``(3) General devise of an interest in trust or
restricted personal property.--</DELETED>
<DELETED> ``(A) Trust or restricted personal
property defined.--The term `Trust or restricted
personal property' as used in this section includes--
</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(ii) absent clear evidence to
the contrary, all personal property permanently
affixed to trust or restricted lands.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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).''.</DELETED>
<DELETED> (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:</DELETED>
<DELETED> ``(b) Nontestamentary Disposition.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) shall descend according to a tribal
probate code that is approved in accordance with
section 206; or</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(i) paragraphs (2) through (4);
and</DELETED>
<DELETED> ``(ii) other applicable Federal
law.</DELETED>
<DELETED> ``(2) Rules governing descent of estate.--
</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(i) If the decedent is survived
by an heir described in subparagraph (B) (i),
(ii), (iii), or (iv), the surviving spouse
shall receive </DELETED>\<DELETED>1/
3</DELETED>\ <DELETED>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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(iii) The remainder shall pass
as set forth in subparagraph (B).</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(ii) If the property does not
pass under clause (i), to the surviving Indian
great-grandchildren of the decedent in equal
shares.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED>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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(3) Right of representation.--</DELETED>
<DELETED> ``(A) In general.--Subject to subparagraph
(B)--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) the individual shall be deemed to
have predeceased the decedent for the purpose of
intestate succession; and</DELETED>
<DELETED> ``(B) the heirs of the decedent shall be
determined in accordance with this section.</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (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.''.</DELETED>
<DELETED> (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:</DELETED>
<DELETED> ``(h) Applicable Federal Law.--</DELETED>
<DELETED> ``(1) In general.--Any references in subsections
(a) and (b) to applicable Federal law include--</DELETED>
<DELETED> ``(A) Public Law 91-627 (84 Stat.
1874);</DELETED>
<DELETED> ``(B) Public Law 92-377 (86 Stat.
530);</DELETED>
<DELETED> ``(C) Public Law 92-443 (86 Stat.
744);</DELETED>
<DELETED> ``(D) Public Law 96-274 (94 Stat. 537);
and</DELETED>
<DELETED> ``(E) Public Law 98-513 (98 Stat.
2411).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(2) Class gifts.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) the beneficiary has predeceased the
testator;</DELETED>
<DELETED> ``(B) the devise has been revoked by the
testator; or</DELETED>
<DELETED> ``(C) the devise has been disclaimed by
the beneficiary;</DELETED>
<DELETED>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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(9) Advancements of trust or restricted personal
property during lifetime; effect on distribution of estate.--
</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(j) Heirship by Killing.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) under intestate succession under
this chapter;</DELETED>
<DELETED> ``(B) under a tribal probate code, unless
otherwise provided for;</DELETED>
<DELETED> ``(C) as the surviving spouse;</DELETED>
<DELETED> ``(D) by devise;</DELETED>
<DELETED> ``(E) as a reversion or a vested
remainder;</DELETED>
<DELETED> ``(F) as a survivorship interest;
and</DELETED>
<DELETED> ``(G) as a contingent remainder or
executory or other future interest.</DELETED>
<DELETED> ``(4) Joint tenants, joint owners, and joint
obligees.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(6) Preadjudication rule.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(k) General Rules Governing Probate.--</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(2) Pretermitted spouses and children.--
</DELETED>
<DELETED> ``(A) Spouses.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(ii) Exception.--Clause (i)
shall not apply to an interest in trust or
restricted land where--</DELETED>
<DELETED> ``(I) the will of a
testator is executed before the date of
enactment of this
subparagraph;</DELETED>
<DELETED> ``(II)(aa) the spouse of a
testator is a non-Indian; and</DELETED>
<DELETED> ``(bb) the testator
devised the interests in trust or
restricted land of the testator to 1 or
more Indians;</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(IV) the will expresses
the intention that the will is to be
effective notwithstanding any
subsequent marriage; or</DELETED>
<DELETED> ``(V)(aa) the testator
provided for the spouse by a transfer
of funds or property outside the will;
and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(I) the testator and
surviving spouse were continuously
married without legal separation for
the 10-year period preceding the
decedent's death;</DELETED>
<DELETED> ``(II) the testator and
surviving spouse have a surviving child
who is the child of the
testator;</DELETED>
<DELETED> ``(III) the surviving
spouse has made substantial payments on
or improvements to the trust or
restricted land in such estate;
or</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED>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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(B) Children.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(iii) Adopted-out children.--
</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(3) Divorce.--</DELETED>
<DELETED> ``(A) Surviving spouse.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(B) Effect of subsequent divorce on a
will or devise.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(4) Notice.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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).''.</DELETED>
<DELETED>SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN
LANDS.</DELETED>
<DELETED> Section 205 of the Indian Land Consolidation Act (25
U.S.C. 2204) is amended by adding at the end the following:</DELETED>
<DELETED> ``(c) Partition of Highly Fractionated Indian Lands.--
</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(i) the Indian tribe with
jurisdiction over the subject land that owns an
undivided interest in the parcel of land;
or</DELETED>
<DELETED> ``(ii) any person owning an
undivided trust or restricted interest in the
parcel of land.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(C) Consent requirements.--A parcel of
land may be partitioned under this subsection only with
the written consent of--</DELETED>
<DELETED> ``(i) the Indian tribe with
jurisdiction over the subject land if such
Indian tribe owns an undivided interest in the
parcel;</DELETED>
<DELETED> ``(ii) any owner who, for the 3-
year period immediately preceding the date on
which the Secretary receives the application,
has--</DELETED>
<DELETED> ``(I) continuously
maintained a bona fide residence on the
parcel; or</DELETED>
<DELETED> ``(II) continuously
operated a bona fide farm, ranch, or
other business on the parcel;
and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(i) Contents of notice.--The
notice required by this subsection shall
state--</DELETED>
<DELETED> ``(I) that a proceeding to
partition the parcel of land by sale
has been commenced;</DELETED>
<DELETED> ``(II) the legal
description of the subject
parcel;</DELETED>
<DELETED> ``(III) the owner's
ownership interest in the subject
parcel;</DELETED>
<DELETED> ``(IV) the results of the
preliminary appraisal;</DELETED>
<DELETED> ``(V) the owner's right to
request a copy of the preliminary
appraisal;</DELETED>
<DELETED> ``(VI) the owner's right
to comment on the proposed partition
and the preliminary
appraisal;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(VIII) the address for
requesting copies of the preliminary
appraisal and for submitting written
comments.</DELETED>
<DELETED> ``(ii) Manner of service.--
</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(aa) the owner's
relatives, if any are
known;</DELETED>
<DELETED> ``(bb) the Indian
tribe of which the owner is a
member; and</DELETED>
<DELETED> ``(cc) the Indian
tribe with jurisdiction over
the subject parcel.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(i) modify the preliminary
appraisal and, as modified, determine it to be
the final appraisal for the parcel;
or</DELETED>
<DELETED> ``(ii) determine that preliminary
appraisal should be the final appraisal for the
parcel, without modifications.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(i) the results of the final
appraisal;</DELETED>
<DELETED> ``(ii) the owner's right to review
a copy of the appraisal upon request;
and</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(H) Sale.--Subject to the requirements
of paragraph (2)(C), the Secretary shall--</DELETED>
<DELETED> ``(i) provide every owner of the
parcel of land and the Indian tribe with
jurisdiction over the subject land with notice
that--</DELETED>
<DELETED> ``(I) the decision to
partition by sale is final;
and</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(I) any owner of a trust
or restricted interest in the parcel
being sold;</DELETED>
<DELETED> ``(II) the Indian tribe,
if any, with jurisdiction over the
parcel being sold; and</DELETED>
<DELETED> ``(III) any member of the
Indian tribe described in subclause
(II); and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(3) Enforcement.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(i) commence a civil action in
the United States district court for the
district in which the parcel of land is
located; and</DELETED>
<DELETED> ``(ii) request that the court
issue an appropriate order for the partition of
the land in kind or by sale.</DELETED>
<DELETED> ``(B) Federal role.--With respect to any
civil action brought under subparagraph (A)--</DELETED>
<DELETED> ``(i) the United States--
</DELETED>
<DELETED> ``(I) shall receive notice
of the civil action; and</DELETED>
<DELETED> ``(II) may be a party to
the civil action; and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(4) Regulations.--The Secretary is authorized to
adopt such regulations as may be necessary to implement the
provisions of this subsection.''.</DELETED>
<DELETED>SEC. 5. OWNER-MANAGED INTERESTS.</DELETED>
<DELETED> The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)
is amended by adding at the end the following:</DELETED>
<DELETED>``SEC. 221. OWNER-MANAGED INTERESTS.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(c) Owner Management.--</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(B) Renew any lease described in
paragraph (1) for 1 renewal term not to exceed 25
years.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(d) Approval of Applications for Owner Management.--
</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(g) Jurisdiction.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(h) Continuation of Owner-Managed Status; Revocation.--
</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(i) Defined Terms.--</DELETED>
<DELETED> ``(1) For purposes of subsection (d)(1), the term
`qualified applicant' means--</DELETED>
<DELETED> ``(A) a person over the age of 18 who owns
a trust or restricted interest in a parcel of land;
and</DELETED>
<DELETED> ``(B) the parent or legal guardian of a
minor or incompetent person who owns a trust or
restricted interest in a parcel of land.</DELETED>
<DELETED> ``(2) For purposes of this section, the term
`owner-managed status' means, with respect to a trust or
restricted interest, that the interest--</DELETED>
<DELETED> ``(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);</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(C) no revocation has occurred under
subsection (h)(2).</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(l) Regulations.--The Secretary shall promulgate such
regulations as are necessary to carry out this section.''.</DELETED>
<DELETED>SEC. 6. ADDITIONAL AMENDMENTS.</DELETED>
<DELETED> (a) In General.--The Indian Land Consolidation Act (25
U.S.C. 2201 et seq.) is amended--</DELETED>
<DELETED> (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'';</DELETED>
<DELETED> (2) in section 205 (25 U.S.C. 2204), by adding
subsection (c) as follows:</DELETED>
<DELETED> ``(c) Purchase Option at Probate.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(A) The heirs taking by intestate
succession or the devisees listed in section
207(a)(1)(A).</DELETED>
<DELETED> ``(B) All persons who own undivided trust
or restricted interests in the same parcel of land
involved in the probate proceeding.</DELETED>
<DELETED> ``(C) The Indian tribe with jurisdiction
over the interest, or the Secretary on behalf of such
Indian tribe.</DELETED>
<DELETED> ``(3) Request for auction.--No auction and sale of
an interest in probate shall occur under this subsection
unless--</DELETED>
<DELETED> ``(A) except as provided in paragraph (6),
the heirs or devises of such interest consent to the
sale; and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(4) Appraisal and notice.--Prior to the sale of
an interest pursuant to this subsection, the Secretary shall--
</DELETED>
<DELETED> ``(A) appraise the interest; and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) the interest is passing by intestate
succession; and</DELETED>
<DELETED> ``(B) prior to the auction the Secretary
determines that the interest involved is an interest in
a parcel of highly fractionated Indian land.</DELETED>
<DELETED> ``(7) Regulations.--The Secretary shall promulgate
regulations to implement the provisions of this
subsection.'';</DELETED>
<DELETED> (3) in section 206 (25 U.S.C. 2205)--</DELETED>
<DELETED> (A) in subsection (a), by striking
paragraph (3) and inserting the following:</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) an Indian lineal descendant of the
original allottee; or</DELETED>
<DELETED> ``(B) an Indian who is not a member of the
Indian tribe with jurisdiction over such an
interest;</DELETED>
<DELETED>unless the code provides for--</DELETED>
<DELETED> ``(i) the renouncing of interests to eligible
devisees in accordance with the code;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(iii) payment of fair market value in the manner
prescribed under subsection (c)(2).''; and</DELETED>
<DELETED> (B) in subsection (c)--</DELETED>
<DELETED> (i) in paragraph (1)--</DELETED>
<DELETED> (I) by striking the
paragraph heading and inserting the
following:</DELETED>
<DELETED> ``(1) Authority.--</DELETED>
<DELETED> ``(A) In general.--'';</DELETED>
<DELETED> (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</DELETED>
<DELETED> (III) by striking the last
sentence and inserting the
following:</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> (ii) in paragraph (2)--</DELETED>
<DELETED> (I) in subparagraph (A)--
</DELETED>
<DELETED> (aa) by striking
the subparagraph heading and
all that follows through
``Paragraph (1) shall not
apply'' and inserting the
following:</DELETED>
<DELETED> ``(A) Inapplicability to certain
interests.--</DELETED>
<DELETED> ``(i) In general.--Paragraph (1)
shall not apply'';</DELETED>
<DELETED> (bb) in clause (i)
(as redesignated by item (aa)),
by striking ``if, while'' and
inserting the following: ``if--
</DELETED>
<DELETED> ``(I) while'';</DELETED>
<DELETED> (cc) by striking
the period at the end and
inserting ``; or'';
and</DELETED>
<DELETED> (dd) by adding at
the end the
following:</DELETED>
<DELETED> ``(II)--</DELETED>
<DELETED> ``(aa) the
interest is part of a family
farm that is devised to a
member of the family of the
decedent; and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(iv) Definition of `member of
the family'.--In this paragraph, the term
`member of the family', with respect to a
decedent or landowner, means--</DELETED>
<DELETED> ``(I) a lineal descendant
of a decedent or landowner;</DELETED>
<DELETED> ``(II) a lineal descendant
of the grandparent of a decedent or
landowner;</DELETED>
<DELETED> ``(III) the spouse of a
descendant or landowner described in
subclause (I) or (II); and</DELETED>
<DELETED> ``(IV) the spouse of a
decedent or landowner.'';</DELETED>
<DELETED> (4) in subparagraph (B), by striking
``subparagraph (A)'' and all that follows through
``207(a)(6)(B) of this title'' and inserting ``paragraph
(1)'';</DELETED>
<DELETED> (5) in section 207 (25 U.S.C. 2206), subsection
(g)(5), by striking ``this section'' and inserting
``subsections (a) and (b)'';</DELETED>
<DELETED> (6) in section 213 (25 U.S.C. 2212)--</DELETED>
<DELETED> (A) by striking the section heading and
inserting the following:</DELETED>
<DELETED>``SEC. 2212. FRACTIONAL INTEREST ACQUISITION
PROGRAM.'';</DELETED>
<DELETED> (B) in subsection (a)--</DELETED>
<DELETED> (i) by striking ``(2) Authority of
Secretary.--'' and all that follows through
``the Secretary shall submit'' and inserting
the following:</DELETED>
<DELETED> ``(2) Authority of secretary.--The Secretary shall
submit''; and</DELETED>
<DELETED> (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'';</DELETED>
<DELETED> (C) in subsection (b), by striking
paragraph (4) and inserting the following:</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) conveyance documents;</DELETED>
<DELETED> ``(B) administrative proceedings;
and</DELETED>
<DELETED> ``(C) transactions.''.</DELETED>
<DELETED> (D) in subsection (c)--</DELETED>
<DELETED> (i) in paragraph (1)--</DELETED>
<DELETED> (I) in subparagraph (A),
by striking ``at least 5 percent of
the'' and inserting in its place
``an'';</DELETED>
<DELETED> (II) in subparagraph (A),
by inserting ``in such parcel''
following ``the Secretary shall convey
an interest'';</DELETED>
<DELETED> (III) in subparagraph (A),
by striking ``landowner upon payment''
and all that follows and inserting the
following: ``landowner--</DELETED>
<DELETED> ``(i) on payment by the Indian
landowner of the amount paid for the interest
by the Secretary; or</DELETED>
<DELETED> ``(ii) if--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(II) the Secretary
determines that the purchase price will
be paid in a timely and efficient
manner.''; and</DELETED>
<DELETED> (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</DELETED>
<DELETED> (ii) in paragraph (3), by striking
``10 percent or more of the undivided
interests'' and inserting ``an undivided
interest'';</DELETED>
<DELETED> (7) in section 214 (25 U.S.C. 2213), by striking
subsection (b) and inserting the following:</DELETED>
<DELETED> ``(b) Application of Revenue From Acquired Interests to
Land Consolidation Program.--</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(2) Requirements.--</DELETED>
<DELETED> ``(A) In general.--Until the Secretary
removes a lien from an interest in land under paragraph
(1)--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(3) Removal of liens after findings.--The
Secretary may remove a lien referred to in paragraph (1) if the
Secretary makes a finding that--</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.'';</DELETED>
<DELETED> (8) in section 216 (25 U.S.C. 2215)--</DELETED>
<DELETED> (A) in subsection (a), by striking
paragraph (2) and inserting the following:</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> (B) in subsection (b)--</DELETED>
<DELETED> (i) in paragraph (1)--</DELETED>
<DELETED> (I) in the matter
preceding subparagraph (A), by striking
``Subject to paragraph (2), all'' and
inserting ``All'';</DELETED>
<DELETED> (II) in subparagraph (A),
by striking ``and'' at the
end;</DELETED>
<DELETED> (III) in subparagraph (B),
by striking the period at the end and
inserting ``; and''; and</DELETED>
<DELETED> (IV) by adding at the end
the following:</DELETED>
<DELETED> ``(C) be used to acquire undivided
interests on the reservation from which the income was
derived.''; and</DELETED>
<DELETED> (ii) by striking paragraph (2) and
inserting the following:</DELETED>
<DELETED> ``(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.'';</DELETED>
<DELETED> (9) in section 217 (25 U.S.C. 2216)--</DELETED>
<DELETED> (A) in subsection (b)(1) by striking
subparagraph (B) and inserting a new subparagraph (B)
as follows--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(i) to an Indian person who is
the owner's spouse, brother, sister, lineal
ancestor, lineal descendant, or collateral
heir; or</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED> (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--
'';</DELETED>
<DELETED> (C) in subsection (e)(1), by striking
``Indian'';</DELETED>
<DELETED> (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</DELETED>
<DELETED> (E) by striking subsection (f) and
inserting the following:</DELETED>
<DELETED> ``(f) Purchase of Land by Indian Tribe.--</DELETED>
<DELETED> ``(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--
</DELETED>
<DELETED> ``(A) to match any offer contained in the
application; or</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(2) Exception for family farms.--</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> (10) in section 219(b)(1)(A) (25 U.S.C.
2218(b)(1)(A)), by striking ``100'' and inserting
``90''.</DELETED>
<DELETED> (b) Definitions.--Section 202 of the Indian Land
Consolidation Act (25 U.S.C. 2201) is amended--</DELETED>
<DELETED> (1) by striking paragraph (2) and inserting the
following:</DELETED>
<DELETED> ``(2) `Indian' means--</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(B) any person meeting the definition of
Indian under the Indian Reorganization Act (25 U.S.C.
479) and the regulations promulgated
thereunder;</DELETED>
<DELETED> ``(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);</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> (2) by adding at the end the following:</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A)(i) 100 or more but less than 200 co-
owners of undivided trust or restricted interests;
and</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(B)(i) 200 or more but less than 350 co-
owners of undivided trust or restricted interests;
and</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(C) 350 or more co-owners of undivided
trust or restricted interests.</DELETED>
<DELETED> ``(7) `Person' means a natural
person.''.</DELETED>
<DELETED> (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:''.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (1) striking ``, in accordance with'' and all that
follows through ``or in which the subject matter of the
corporation is located,'';</DELETED>
<DELETED> (2) striking ``, except as provided by the Indian
Land Consolidation Act'' and all that follows through the
colon; and</DELETED>
<DELETED> (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):''.</DELETED>
<DELETED> (e) Estate Planning.--</DELETED>
<DELETED> (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--
</DELETED>
<DELETED> ``(1) In general.--</DELETED>
<DELETED> ``(A) The activities conducted under this
subsection shall be conducted in accordance with any
applicable--</DELETED>
<DELETED> ``(i) tribal probate code;
or</DELETED>
<DELETED> ``(ii) tribal land consolidation
plan.</DELETED>
<DELETED> ``(B) The Secretary shall provide estate
planning assistance in accordance with this subsection,
to the extent amounts are appropriated for such
purpose.''.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> ``(B) dramatically increase the use of
wills and other methods of devise among Indian
landowners;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> (3) by striking ``(3) Contracts.--'' and inserting
the following--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> (4) by adding at the end of section 207 (25 U.S.C.
2206) the following:</DELETED>
<DELETED> ``(k) Notification to Landowners.--</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) the location of the tract of land
involved;</DELETED>
<DELETED> ``(B) the identity of each other co-owner
of interests in the parcel of land; and</DELETED>
<DELETED> ``(C) the percentage of ownership of each
owner of an interest in the tract.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) the preparation and execution of
wills;</DELETED>
<DELETED> ``(B) negotiated sales;</DELETED>
<DELETED> ``(C) gift deeds;</DELETED>
<DELETED> ``(D) exchanges; and</DELETED>
<DELETED> ``(E) life estates without regard to
waste.</DELETED>
<DELETED> ``(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').</DELETED>
<DELETED> ``(l) Private and Family Trusts Pilot Project.--</DELETED>
<DELETED> ``(1) Development pilot project.--</DELETED>
<DELETED> ``(A) The Secretary shall consult with
tribes, individual landowner organizations, Indian
advocacy organizations, and other interested parties
to--</DELETED>
<DELETED> ``(i) develop a pilot project for
the creation and management of private and
family trusts for interests in trust or
restricted lands; and</DELETED>
<DELETED> ``(ii) develop proposed rules,
regulations, and guidelines to implement the
pilot project.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(2) Characteristics of private and family
trusts.--For purposes of this subsection and any proposed
rules, regulations, or guidelines developed under this
subsection--</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(B) the feasibility of accurately
tracking such private and family trusts;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED>SEC. 7. UNCLAIMED AND ABANDONED PROPERTY.</DELETED>
<DELETED> 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:</DELETED>
<DELETED>``SEC. 222. UNCLAIMED AND ABANDONED PROPERTY.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(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);</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(3) as of the expiration of the 6-year period
described in paragraph (1), such parcel was a parcel of highly
fractionated Indian land.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) making a deposit to, withdrawal from, or
inquiry into an individual Indian money account associated with
such interest;</DELETED>
<DELETED> ``(2) negotiating a Treasury check derived from
such interest or account;</DELETED>
<DELETED> ``(3) providing the Secretary with a valid
address; or</DELETED>
<DELETED> ``(4) communicating with the Secretary regarding
such interest or account.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(1) Contents of annual list.--The list shall set
forth--</DELETED>
<DELETED> ``(A) the names of all persons owning
interests in land and property presumed to be abandoned
under this section;</DELETED>
<DELETED> ``(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;</DELETED>
<DELETED> ``(C) the reservation, if any, the city or
town, county and State of the person's last known
address; and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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:</DELETED>
<DELETED> ``(A) A legal description of the parcel of
which the interest is a part.</DELETED>
<DELETED> ``(B) A description of the owner's
interest.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(A) searching publicly available records
and Federal records, including telephone and address
directories and using electronic search
methods;</DELETED>
<DELETED> ``(B) inquiring with--</DELETED>
<DELETED> ``(i) the owner's relatives, if
any are known;</DELETED>
<DELETED> ``(ii) any Indian tribe of which
the owner is a member; and</DELETED>
<DELETED> ``(iii) the Indian tribe, if any,
with jurisdiction over the interest;
and</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(B) in a form that is likely to attract
the attention of the apparent owner of the
property.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(f) Unclaimed Property Account.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(2) The Secretary is authorized to use interest
earned on the special unclaimed property account to pay--
</DELETED>
<DELETED> ``(A) the administrative costs of
conversion of real property under subsection (g);
and</DELETED>
<DELETED> ``(B) costs of mailing and publication in
connection with abandoned property.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(g) Claims.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(B) recover reasonable attorneys fees if
he is the prevailing party.</DELETED>
<DELETED> ``(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).</DELETED>
<DELETED> ``(i) Transfer of Abandoned Interests in Land.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(j) Regulations.--The Secretary is authorized to adopt
such regulations as may be necessary to implement the provisions of
this section.''.</DELETED>
<DELETED>SEC. 8. MISSING HEIRS.</DELETED>
<DELETED> Section 207 of the Indian Land Consolidation Act (25
U.S.C. 2206) is amended by adding the following:</DELETED>
<DELETED> ``(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--</DELETED>
<DELETED> ``(1) a search of publicly available records and
Federal records, including telephone and address directories
and including electronic search methods;</DELETED>
<DELETED> ``(2) an inquiry with family members and co-heirs
of the property;</DELETED>
<DELETED> ``(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</DELETED>
<DELETED> ``(4) if the property is of a value greater than
$1,000, an independent firm shall be contracted to conduct a
missing persons search.</DELETED>
<DELETED> ``(n) Missing Heirs.--</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(4) A missing heir shall be presumed to have
predeceased the decedent for purposes of descent and
devise.''.</DELETED>
<DELETED>SEC. 9. ANNUAL NOTICE AND FILING REQUIREMENT FOR OWNERS OF
INTERESTS IN TRUST OR RESTRICTED LANDS.</DELETED>
<DELETED> 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:</DELETED>
<DELETED>``SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHEREABOUTS OF
INTEREST OWNERS.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.</DELETED>
<DELETED> ``(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.''.</DELETED>
<DELETED>SEC. 10. EFFECTIVE DATE.</DELETED>
<DELETED> The amendments made by this Act shall not apply to the
estate of an individual who dies before the later of--</DELETED>
<DELETED> (1) the date that is 1 year after the date of
enactment of this Act; or</DELETED>
<DELETED> (2) the date specified in section 207(g)(5) of the
Indian Land Consolidation Act (25 U.S.C. 2206(g)(5)).</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Indian Probate Reform Act
of 2004''.
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;
(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 and create incentives for owners
of trust and restricted land to engage in estate
planning;
(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; and
(5) the provisions of a uniform Federal probate code and
other forth in this Act should operate to further the policy of
the United States as stated in the Indian Land Consolidated Act
Amendments of 2000, Public Law 106-462, 102, November 7, 2000,
114 Stat. 1992.
SEC. 3. INDIAN PROBATE REFORM.
(a) Nontestamentary 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) Nontestamentary Disposition.--
``(1) Rules of descent.--Subject to any applicable Federal
law relating to the devise or descent of trust or restricted
property, any trust or restricted interest in land or interest
in trust personalty that is not disposed of by a valid will--
``(A) shall descend according to an applicable
tribal probate code approved in accordance with section
206; or
``(B) in the case of a trust or restricted interest
in land or interest in trust personalty to which a
tribal probate code does not apply, shall descend in
accordance with--
``(i) paragraphs (2) through (5); 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 land and trust personalty in the estate
as follows:
``(i) If the decedent is survived by 1 or
more eligible heirs described in subparagraph
(B) (i), (ii), (iii), or (iv), the surviving
spouse shall receive \1/3\ of the trust
personalty 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 eligible heirs
described in subparagraph (B) (i), (ii), (iii),
or (iv), the surviving spouse shall receive all
of the trust personalty of the decedent and a
life estate without regard to waste in the
trust or restricted lands of the decedent.
``(iii) The remainder shall pass as set
forth in subparagraph (B).
``(iv) Trust personalty passing to a
surviving spouse under the provisions of this
subparagraph shall be maintained by the
Secretary in an account as trust personalty,
but only if such spouse is Indian.
``(B) Individual and tribal heirs.--Where there is
no surviving spouse of the decedent, or there is a
remainder interest pursuant to subparagraph (A), the
trust or restricted estate or such remainder shall,
subject to subparagraphs (A) and (D), pass as follows:
``(i) To those of the decedent's children
who are eligible heirs (or if 1 or more of such
children do not survive the decedent, the
children of any such deceased child who are
eligible heirs, by right of representation, but
only if such children of the deceased child
survive the decedent) in equal shares.
``(ii) If the property does not pass under
clause (i), to those of the decedent's
surviving great-grandchildren who are eligible
heirs, in equal shares.
``(iii) If the property does not pass under
clause (i) or (ii), to the decedent's surviving
parent who is an eligible heir, and if both
parents survive the decedent and are both
eligible heirs, to both parents in equal
shares.
``(iv) If the property does not pass under
clause (i), (ii), or (iii), to those of the
decedent's surviving siblings who are eligible
heirs, 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.--
``(i) In general.--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 to
the United States, provided that any such
interests in land passing to the United States
under this subparagraph shall be sold by the
Secretary and the proceeds from such sale
deposited into the land acquisition fund
established under section 216 (25 U.S.C. 2215)
and used for the purposes described in
subsection (b) of that section.
``(ii) Contiguous parcel.--If the interests
passing to the United States under this
subparagraph are in a parcel of land that is
contiguous to another parcel of trust or
restricted land, the Secretary shall give the
owner or owners of the trust or restricted
interest in the contiguous parcel the first
opportunity to purchase the interest at not
less than fair market value determined in
accordance with this Act. If more than 1 such
owner in the contiguous parcel request to
purchase the parcel, the Secretary shall sell
the parcel by public auction or sealed bid (as
determined by the Secretary) at not less than
fair market value to the owner of a trust or
restricted interest in the contiguous parcel
submitting the highest bid.
``(D) Intestate descent of small fractional
interests in land.--
``(i) General rule.--Notwithstanding
subparagraphs (A) and (B), and subject to any
applicable Federal law, any trust or restricted
interest in land in the decedent's estate that
is not disposed of by a valid will and
represents less than 5 percent of the entire
undivided ownership of the parcel of land of
which such interest is a part, as evidenced by
the decedent's estate inventory at the time of
the heirship determination, shall descend in
accordance with clauses (ii) through (iv).
``(ii) Surviving spouse.--If there is a
surviving spouse, and such spouse was residing
on a parcel of land described in clause (i) at
the time of the decedent's death, the spouse
shall receive a life estate without regard to
waste in the decedent's trust or restricted
interest in only such parcel, and the remainder
interest in that parcel shall pass in
accordance with clause (iii).
``(iii) Single heir rule.--Where there is
no life estate created under clause (ii) or
there is a remainder interest under that
clause, the trust or restricted interest or
remainder interest that is subject to this
subparagraph shall descend, in trust or
restricted status, to--
``(I) the decedent's surviving
child, but only if such child is an
eligible heir; and if 2 or more
surviving children are eligible heirs,
then to the oldest of such children;
``(II) if the interest does not
pass under subclause (I), the
decedent's surviving grandchild, but
only if such grandchild is an eligible
heir; and if 2 or more surviving
grandchildren are eligible heirs, then
to the oldest of such grandchildren;
``(III) if the interest does not
pass under subclause (I) or (II), the
decedent's surviving great grandchild,
but only if such great grandchild is an
eligible heir; and if 2 or more
surviving great grandchildren are
eligible heirs, then to the oldest of
such great grandchildren;
``(IV) if the interest does not
pass under subclause (I), (II), or
(III), the Indian tribe with
jurisdiction over the interest; or
``(V) if the interest does not pass
under subclause (I), (II), or (III),
and there is no such Indian tribe to
inherit the property under subclause
(IV), the interest shall be divided
equally among co-owners of trust or
restricted interests in the parcel; and
if there are no such co-owners, then to
the United States, to be sold, and the
proceeds from sale used, in the same
manner provided in subparagraph (C).
The determination of which person is the oldest
eligible heir for inheritance purposes under this
clause shall be made by the Secretary in the decedent's
probate proceeding and shall be consistent with the
provisions of this Act.
``(iv) Exceptions.--Notwithstanding clause
(iii)--
``(I)(aa) the heir of an interest
under clause (iii), unless the heir is
a minor or incompetent person, may
agree in writing entered into the
record of the decedent's probate
proceeding to renounce such interest,
in trust or restricted status, in favor
of--
``(AA) any other eligible
heir or Indian person related
to the heir by blood, but in
any case never in favor of more
than 1 such heir or person;
``(BB) any co-owner of
another trust or restricted
interest in such parcel of
land; or
``(CC) the Indian tribe
with jurisdiction over the
interest, if any; and
``(bb) the Secretary shall give
effect to such agreement in the
distribution of the interest in the
probate proceeding; and
``(II) the governing body of the
Indian tribe with jurisdiction over an
interest in trust or restricted land
that is subject to the provisions of
this subparagraph may adopt a rule of intestate descent applicable to
such interest that differs from the order of decedent set forth in
clause (iii). The Secretary shall apply such rule to the interest in
distributing the decedent's estate, but only if--
``(aa) a copy of the tribal
rule is delivered to the
official designated by the
Secretary to receive copies of
tribal rules for the purposes
of this clause;
``(bb) the tribal rule
provides for the intestate
inheritance of such interest by
no more than 1 heir, so that
the interest does not further
fractionate;
``(cc) the tribal rule does
not apply to any interest
disposed of by a valid will;
``(dd) the decedent died on
or after the date described in
subsection (b) of section 8 of
the American Indian Probate Act
of 2004, or on or after the
date on which a copy of the
tribal rule was delivered to
the Secretary pursuant to item
(aa), whichever is later; and
``(ee) the Secretary does
not make a determination within
90 days after a copy of the
tribal rule is delivered
pursuant to item (aa) that the
rule would be unreasonably
difficult to administer or does
not conform with the
requirements in item (bb) or
(cc).
``(v) Rule of construction.--This
subparagraph shall not be construed to limit a
person's right to devise any trust or
restricted interest by way of a valid will in
accordance with subsection (b).
``(3) Right of representation.--If, under this subsection,
all or any part of the estate of a decedent is to pass to
children of a deceased child by right of representation, that
part is to be divided into as many equal shares as there are
living children of the decedent and pre-deceased children who
left issue who survive the decedent. Each living child of the
decedent, if any, shall receive 1 share, and the share of each
pre-deceased child shall be divided equally among the pre-
deceased child's children.
``(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.--Except as provided in
paragraphs (2) (A) and (D) regarding the life estate of a
surviving spouse, a trust or restricted interest in land or
trust personalty that descends under the provisions of this
subsection shall vest in the heir in the same trust or
restricted status as such interest was held immediately prior
to the decedent's death.''.
(b) Testamentary 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) 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 a trust or restricted interest in land may
devise such interest to--
``(i) any lineal descendant of the
testator;
``(ii) any person who owns a preexisting
undivided trust or restricted interest in the
same parcel of land;
``(iii) the Indian tribe with jurisdiction
over the interest in land; or
``(iv) any Indian;
in trust or restricted status.
``(B) Rules of interpretation.--Any devise of a
trust or restricted interest in land pursuant to
subparagraph (A) to an Indian or the Indian tribe with
jurisdiction over the interest shall be deemed to be a
devise of the interest in trust or restricted status.
Any devise of a trust or restricted interest in land to
a person who is only eligible to be a devisee under
clause (i) or (ii) of subparagraph (A) shall be
presumed to be a devise of the interest in trust or
restricted status unless language in such devise
clearly evidences an intent on the part of the testator
that the interest is to pass as a life estate or fee
interest in accordance with paragraph (2)(A).
``(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 trust or restricted
interest in land that is not devised in accordance with
paragraph (1)(A) may be devised only--
``(i) as a life estate 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), as a fee interest without Federal
restrictions against alienation to any person
who is not eligible to be a devisee under
clause (iv) of paragraph (1)(A).
``(B) Indian reorganization act lands.--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)(A);
provided that nothing in this section or in section 4
of the Act of June 18, 1934 (25 U.S.C. 464), shall be
construed to authorize the devise of any interest in
trust or restricted land that is subject to section 4
of that Act to any person as a fee interest under
subparagraph (A)(ii).
``(3) General devise of an interest in trust personalty.--
``(A) Trust personality defined.--The term `trust
personalty' as used in this section includes all funds
and securities of any kind which are held in trust in
an individual Indian money account or otherwise
supervised by the Secretary.
``(B) In general.--Subject to any applicable
Federal law relating to the devise or descent of such
trust personalty, or a tribal probate code approved by
the Secretary in accordance with section 206, the owner
of an interest in trust personalty may devise such an
interest to any person or entity.
``(C) Maintenance as trust personalty.--In the case
of a devise of an interest in trust personalty to a
person or Indian tribe eligible to be a devisee under
paragraph (1)(A), the Secretary shall maintain and
continue to manage such interests as trust personalty.
``(D) Direct disbursement and distribution.--In the
case of a devise of an interest in trust personalty to
a person or Indian tribe not eligible to be a devisee
under paragraph (1)(A), the Secretary shall directly
disburse and distribute such personalty to the devisee.
``(4) Invalid devises and wills.--
``(A) Land.--Any trust or restricted interest in
land that is not devised in accordance with paragraph
(1) or (2) or 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 (a).
``(B) Personalty.--Any trust personalty 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 (a).''.
(c) Joint Tenancy; Right of Survivorship.--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:
``(1) Presumption of joint tenancy.--If a testator devises
trust or restricted interests in the same parcel of land to
more than 1 person, in the absence of clear and express
language in the devise stating that the interest is to pass to
the devisees as tenants in common, the devise shall be presumed
to create a joint tenancy with the right of survivorship in the
interests involved.
``(2) Exception.--Paragraph (1) shall not apply to any
devise of an interest in trust or restricted land where the
will in which such devise is made was executed prior to the
date that is 1 year after the date on which the Secretary
publishes the certification required by section 8(a)(4) of the
American Indian Probate Reform Act of 2004.''.
(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 Act amends or
otherwise affects the application of any law described in
paragraph (1), or any other Federal law that pertains to--
``(A) trust or restricted land located on 1 or more
specific Indian reservations that are expressly
identified in such law; or
``(B) the allotted lands of 1 or more specific
Indian tribes that are expressly identified in such
law.
``(i) Rules of Interpretation.--In the absence of a contrary
intent, and except as otherwise provided under this Act, applicable
Federal law, or a tribal probate code approved by the Secretary
pursuant to section 206, wills shall be construed as to trust and
restricted land and trust personalty 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 trust personalty which the testator owned at his death,
including any such land or personalty acquired after the
execution of his will.
``(2) Class gifts.--
``(A) No differentiation between relationship by
blood and relationship by affinity.--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 interest in land or an interest in trust
personalty 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 devises.--Subject to the provisions of
subsection (b), where the testator devises or bequeaths a trust
or restricted interest in land or trust personalty to the
testator's grandparents or to the lineal descendent of a
grandparent, and the devisee or legatee dies before the
testator leaving lineal descendents, such descendents shall
take the interest so devised or bequeathed per stirpes.
``(6) Void devises.--Except as provided in paragraph (5),
and if the disposition shall not be otherwise expressly
provided for by a tribal probate code approved under section
206 (25 U.S.C. 2205), if a devise other than a residuary devise
of a trust or restricted interest in land or trust personalty
fails for any reason, such interest shall become part of the
residue and pass, subject to the provisions of subsection (b),
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.
``(j) Heirship by Killing.--
``(1) Heir by killing defined.--As used in this subsection,
`heir by killing' means any person who knowingly 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 land, no heir by killing shall in any way
acquire any trust or restricted interests in land or interests
in trust personalty 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 trust or restricted interests in land
or trust personalty which would have passed from the decedent
or his estate to such heir--
``(A) under intestate succession under this
section;
``(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 trust
personalty 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 land or trust
personalty 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 trust or restricted interest
land or trust personalty 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 time following the decedent's death equal to
the life expectancy of the decedent but for the killing.
``(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 trust personalty 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 personalty shall pass as if no
charge had been filed or made.
``(C) Conviction.--Upon conviction of such person,
and the exhaustion of all appeals, if any, the trust
and restricted land and trust personalty 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.--Except as provided under applicable Federal
law or a tribal probate code approved under section 206, the
provisions of this subsection shall govern the probate of
estates containing trust and restricted interests in land or
trust personalty.
``(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 the decedent's trust or restricted
land and trust personalty that the spouse would
have received if the testator had died
intestate.
``(ii) Exception.--Clause (i) shall not
apply to a trust or restricted interest 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 trust personalty in the testator's
estate, in accordance with the provisions of
section 207(a)(2)(A), as though there was no
will but only if--
``(I) the testator and surviving
spouse were continuously married
without legal separation for the 5-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 toward the
purchase of, 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.
``(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 trust or restricted interests in land
and trust personalty 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 interest in 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) shall prevent the
Secretary from giving effect to a property
right settlement relating to a trust or
restricted interest in land or an interest in
trust personalty 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 trust or restricted interests in
land or of trust personalty 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) 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.
``(5) Advancements of trust personalty during lifetime;
effect on distribution of estate.--
``(A) The trust personalty of a decedent who dies
intestate as to all or a portion of his or her estate,
given during the decedent's lifetime to a person
eligible to be an heir of the decedent under subsection
(b)(2)(B), 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
personalty 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 trust personalty
predeceases the decedent, the property shall not be
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.
``(6) 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 of the trust
or restricted land or trust personalty in the decedent's estate
based on the relationship that would entitle such person to the
larger share.
``(7) 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
subsection (a) of section 8 of the American Indian
Probate Reform Act of 2004.
``(8) Renunciation or disclaimer of interests.--
``(A) In general.--Any person 18 years of age or
older may renounce or disclaim an inheritance of a
trust or restricted interest in land or in trust
personalty through intestate succession or devise,
either in full or subject to the reservation of a life
estate (where the interest is an interest in land), in
accordance with subparagraph (B), by filing a signed
and acknowledged declaration with the probate
decisionmaker prior to entry of a final probate order.
No interest so renounced or disclaimed shall be
considered to have vested in the renouncing or
disclaiming heir or devisee, and the renunciation or
disclaimer shall not be considered to be a transfer or
gift of the renounced or disclaimed interest.
``(B) Eligible recipients of renounced or
disclaimed interests; notice to recipients.--
``(i) Interests in land.--A trust or
restricted interest in land may be renounced or
disclaimed only in favor of--
``(I) an eligible heir;
``(II) any person who would have
been eligible to be a devisee of the
interest in question pursuant to
subsection (b)(1)(A) (but only in cases
where the renouncing person is a
devisee of the interest under a valid
will); or
``(III) the Indian tribe with
jurisdiction over the interest in
question;
and the interest so renounced shall pass to its
recipient in trust or restricted status.
``(ii) Trust personalty.--An interest in
trust personalty may be renounced or disclaimed
in favor of any person who would be eligible to
be a devisee of such an interest under
subsection (b)(3) and shall pass to the
recipient in accordance with the provisions of
that subsection.
``(iii) Unauthorized renunciations and
disclaimers.--Unless renounced or disclaimed in
favor of a person or Indian tribe eligible to
receive the interest in accordance with the
provisions of this subparagraph, a renounced or
disclaimed interest shall pass as if the
renunciation or disclaimer had not been made.
``(C) Acceptance of interest.--A renunciation or
disclaimer of an interest filed in accordance with this
paragraph shall be considered accepted when implemented
in a final order by a decisionmaker, and shall
thereafter be irrevocable. No renunciation or
disclaimer of an interest shall be included in such
order unless the recipient of the interest has been
given notice of the renunciation or disclaimer and has
not refused to accept the interest. All disclaimers and
renunciations filed and implemented in probate orders
made effective prior to the date of enactment of the
American Indian Probate Reform Act of 2004 are hereby
ratified.
``(D) Rule of construction.--Nothing in this
paragraph shall be construed to allow the renunciation
of an interest that is subject to the provisions of
section 207(a)(2)(D) (25 U.S.C. 2206(a)(2)(D)) in favor of more than 1
person.
``(9) Consolidation agreements.--
``(A) In general.--During the pendency of probate,
the decisionmaker is authorized to approve written
consolidation agreements effecting exchanges or gifts
voluntarily entered into between the decedent's
eligible heirs or devisees, to consolidate interests in
any tract of land included in the decedent's trust
inventory. Such agreements may provide for the
conveyance of interests already owned by such heirs or
devisees in such tracts, without having to comply with
the Secretary's rules and requirements otherwise
applicable to conveyances by deed of trust or
restricted interests in land.
``(B) Effective.--An agreement approved under
subparagraph (A) shall be considered final when
implemented in an order by a decisionmaker. The final
probate order shall direct any changes necessary to the
Secretary's land records, to reflect and implement the
terms of the approved agreement.
``(C) Effect on purchase option at probate.--Any
interest in trust or restricted land that is subject to
a consolidation agreement under this paragraph or
section 207(e) (25 U.S.C. 2206(e)) shall not be
available for purchase under section 207(p) (25 U.S.C.
2206(p)) unless the decisionmaker determines that the
agreement should not be approved.''.
SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN LANDS.
Section 205 of the Indian Land Consolidation Act (25 U.S.C. 2204)
(as amended by section 6(a)(2)) is amended by adding at the end the
following:
``(d) 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.--Each partition action under this
subsection shall be conducted by the Secretary in accordance
with the following requirements:
``(A) Application.--Upon receipt of any payment or
bond required under subparagraph (B), 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
interest in the parcel of land who is eligible
to bid at the sale of the parcel pursuant to
subclause (II), (III), or (IV) of subparagraph
(I)(i);
provided that no such application shall be valid or
considered if it is received by the Secretary prior to
the date that is 1 year after the date on which notice
is published pursuant to section 8(a)(4) of the
American Indian Probate Reform Act of 2004.
``(B) Costs of serving notice and publication.--The
costs of serving and publishing notice under
subparagraph (F) shall be borne by the applicant. Upon
receiving written notice from the Secretary, the
applicant must pay to the Secretary an amount
determined by the Secretary to be the estimated costs
of such service of notice and publication, or furnish a
sufficient bond for such estimated costs within the
time stated in the notice, failing which, unless an
extension is granted by the Secretary, the Secretary
shall not be required to commence the partition process
under subparagraph (A) and may deny the application.
The Secretary shall have the discretion and authority
in any case to waive either the payment or the bond (or
any portion of such payment or bond) otherwise required
by this subparagraph, upon making a determination that
such waiver will further the policies of this Act.
``(C) 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.
``(D) Consent requirements.--
``(i) In general.--A parcel of land may be
partitioned under this subsection only if the
applicant obtains 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
``(aa) continuously
maintained a bona fide
residence on the parcel; or
``(bb) operated a bona fide
farm, ranch, or other business
on the parcel; and
``(III) the owners (including
parents of minor owners and legal
guardians of incompetent owners) of at
least 50 percent of the undivided
interests in the parcel, but only in
cases where the Secretary determines
that, based on the final appraisal
prepared pursuant to subparagraph (F),
any 1 owner's total undivided interest
in the parcel (not including the
interest of an Indian tribe or that of
the owner requesting the partition) has
a value in excess of $1,500.
Any consent required by this clause must be in
writing and acknowledged before a notary public
(or other official authorized to make
acknowledgments), and shall be approved by
Secretary unless the Secretary has reason to
believe that the consent was obtained as a
result of fraud or undue influence.
``(ii) Consent by the secretary on behalf
of certain individuals.--For the purposes of
clause (i)(III), the Secretary may consent on
behalf of--
``(I) undetermined heirs of trust
or restricted interests and owners of
such interests who are minors and legal
incompetents having no parents or legal
guardian; and
``(II) missing owners or owners of
trust or restricted interests whose
whereabouts are unknown, but only after
a search for such owners has
been completed in accordance with the provisions of this subsection.
``(E) Appraisal.--After the Secretary has
determined that the subject parcel is a parcel of
highly fractionated Indian land pursuant to
subparagraph (C), the Secretary shall cause to be made,
in accordance with the provisions of this Act for
establishing fair market value, an appraisal of the
fair market value of the subject parcel.
``(F) Notice to owners on completion of
appraisal.--Upon completion of the appraisal, the
Secretary shall give notice of the requested partition
and appraisal to all owners of undivided interests in
the parcel, in accordance with principles of due
process. Such notice shall include the following
requirements:
``(i) Written notice.--The Secretary shall
attempt to give each owner written notice of
the partition action stating the following:
``(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 as
evidenced by the Secretary's records as
of the date that owners are determined
in accordance with clause (ii).
``(IV) The results of the
appraisal.
``(V) The owner's right to receive
a copy of the appraisal upon written
request.
``(VI) The owner's right to comment
on or object to the proposed partition
and the appraisal.
``(VII) That the owner must timely
comment on or object in writing to the
proposed partition or the appraisal, in
order to receive notice of approval of
the appraisal and right to appeal.
``(VIII) The date by which the
owner's written comments or objections
must be received, which shall not be
less than 90 days after the date that
the notice is mailed under this clause
or last published under clause
(ii)(II).
``(IX) The address for requesting
copies of the appraisal and for
submitting written comments or
objections.
``(X) The name and telephone number
of the official to be contacted for
purposes of obtaining information
regarding the proceeding, including the
time and date of the auction of the
land or the date for submitting sealed
bids.
``(XI) Any other information the
Secretary deems to be appropriate.
``(ii) Manner of service.--
``(I) Service by certified mail.--
The Secretary shall use due diligence
to provide all owners of interests in
the subject parcel, as evidenced by the
Secretary's records at the time of the
determination under subparagraph (C),
with actual notice of the partition
proceedings by mailing a copy of the
written notice described in clause (i)
by certified mail, restricted delivery,
to each such owner at the owner's last
known address. For purposes of this
subsection, owners shall be determined
from the Secretary's land title records
as of the date of the determination
under subparagraph (C) or a date that
is not more than 90 days prior to the
date of mailing under this clause,
whichever is later. In the event the
written notice to an owner is returned
undelivered, the Secretary shall
attempt to obtain a current address for
such owner by conducting a reasonable
search (including a reasonable search
of records maintained by local, state,
Federal and tribal governments and
agencies) and by inquiring with the
Indian tribe with jurisdiction over the
subject parcel, and, if different from
that tribe, the Indian tribe of which
the owner is a member, and, if
successful in locating any such owner,
send written notice by certified mail
in accordance with this subclause.
``(II) Notice by publication.--The
Secretary shall give notice by
publication of the partition
proceedings to all owners that the
Secretary was unable to serve pursuant
to subclause (I), and to unknown heirs
and assigns by--
``(aa) publishing the
notice described in clause (i)
at least 2 times in a newspaper
of general circulation in the
county or counties where the
subject parcel of land is
located or, if there is an
Indian tribe with jurisdiction
over the parcel of land and
that tribe publishes a tribal
newspaper or newsletter at
least once every month, 1 time
in such newspaper of general
circulation and 1 time in such
tribal newspaper or newsletter;
``(bb) posting such notice
in a conspicuous place in the
tribal headquarters or
administration building (or
such other tribal building
determined by the Secretary to
be most appropriate for giving
public notice) of the Indian
tribe with jurisdiction over
the parcel of land, if any; and
``(cc) in addition to the
foregoing, in the Secretary's
discretion, publishing notice
in any other place or means
that the Secretary determines
to be appropriate.
``(G) Review of comments on appraisal.--
``(i) In general.--After reviewing and
considering comments or information timely
submitted by any owner of an interest in the
parcel in response to the notice required under
subparagraph (F), the Secretary may, consistent
with the provisions of this Act for
establishing fair market value--
``(I) order a new appraisal; or
``(II) approve the appraisal;
provided that if the Secretary orders a new appraisal
under subclause (I), notice of the new appraisal shall
be given as specified in clause (ii).
``(ii) Notice.--Notice shall be given--
``(I) in accordance with
subparagraph (H), where the new
appraisal results in a higher valuation
of the land; or
``(II) in accordance with
subparagraph (F)(ii), where the new
appraisal results in a lower valuation
of the land.
``(H) Notice to owners of approval of appraisal and
right to appeal.--Upon making the determination under
subparagraph (G), the Secretary shall provide to the
Indian tribe with jurisdiction over the subject land
and to all persons who submitted written comments on or
objections to the proposed partition or appraisal, a
written notice to be served on such tribe and persons
by certified mail. Such notice shall state--
``(i) the results of the appraisal;
``(ii) that the owner has the right to
review a copy of the appraisal upon request;
``(iii) that the land will be sold for not
less than the appraised value, subject to the
consent requirements under paragraph (2)(D);
``(iv) the time of the sale or for
submitting bids under subparagraph (I);
``(v) that the owner has the right, under
the Secretary's regulations governing
administrative appeals, to pursue an
administrative appeal from--
``(I) the determination that the
land may be partitioned by sale under
the provisions of this section; and
``(II) the Secretary's order
approving the appraisal;
``(vi) the date by which an administrative
appeal must be taken, a citation to the
provisions of the Secretary's regulations that
will govern the owner's appeal, and any other
information required by such regulations to be
given to parties affected by adverse decisions
of the Secretary;
``(vii) in cases where the Secretary
determines that any person's undivided trust or
restricted interest in the parcel exceeds
$1,500 pursuant to paragraph (2)(D)(iii), that
the Secretary has authority to consent to the
partition on behalf of undetermined heirs of
trust or restricted interests in the parcel and
owners of such interests whose whereabouts are
unknown; and
``(viii) any other information the
Secretary deems to be appropriate.
``(I) Sale to eligible purchaser.--
``(i) In general.--Subject to clauses (ii)
and (iii) and the consent requirements of
paragraph (2)(D), the Secretary shall, after
providing notice to owners under subparagraph
(H), including the time and place of sale or
for receiving sealed bids, at public auction or
by sealed bid (whichever of such methods of
sale the Secretary determines to be more
appropriate under the circumstances) sell the
parcel of land by competitive bid for not less
than the final appraised fair market value to
the highest bidder from among the following
eligible bidders:
``(I) The Indian tribe, if any,
with jurisdiction over the trust or
restricted interests in the parcel
being sold.
``(II) Any person who is a member,
or is eligible to be a member, of the
Indian tribe described in subclause
(I).
``(III) Any person who is a member,
or is eligible to be a member, of an
Indian tribe but not of the tribe
described in subclause (I), but only if
such person already owns an undivided
interest in the parcel at the time of
sale.
``(IV) Any lineal descendent of the
original allottee of the parcel who is
a member or is eligible to be a member
of an Indian tribe or, with respect to
a parcel located in the State of
California that is not within an Indian
tribe's reservation or not otherwise
subject to the jurisdiction of an
Indian tribe, who is a member, or
eligible to be a member, of an Indian
tribe or owns a trust or restricted
interest in the parcel.
``(ii) Right to match highest bid.--If the
highest bidder is a person who is only eligible
to bid under clause (i)(III), the Indian tribe
that has jurisdiction over the parcel, if any,
shall have the right to match the highest bid
and acquire the parcel, but only if--
``(I) prior to the date of the
sale, the governing body of such tribe
has adopted a tribal law or resolution
reserving its right to match the bids
of such nonmember bidders in partition
sales under this subsection and
delivered a copy of such law or
resolution to the Secretary; and
``(II) the parcel is not acquired
under clause (iii).
``(iii) Right to purchase.--Any person who
is a member, or eligible to be a member, of the
Indian tribe with jurisdiction over the trust
or restricted interests in the parcel being
sold and is, as of the time of sale under this
subparagraph, the owner of the largest
undivided interest in the parcel shall have a
right to purchase the parcel by tendering to
the Secretary an amount equal to the highest
sufficient bid submitted at the sale, less that
amount of the bid attributable to such owner's
share, but only if--
``(I) the owner submitted a
sufficient bid at the sale;
``(II) the owner's total undivided
interest in the parcel immediately
prior to the sale was--
``(aa) greater than the
undivided interest held by any
other co-owners, except where
there are 2 or more co-owners
whose interests are of equal
size but larger than the
interests of all other co-
owners and such owners of the
largest interests have agreed
in writing that 1 of them may
exercise the right of purchase
under this clause; and
``(bb) equal to or greater
than 20 percent of the entire
undivided ownership of the
parcel;
``(III) within 3 days following the
date of the auction or for receiving
sealed bids, and in accordance with the
regulations adopted to implement this
section, the owner delivers to the
Secretary a written notice of intent to
exercise the owner's rights under this
clause; and
``(IV) such owner tenders the
amount of the purchase price required
under this clause--
``(aa) not less than 30
days after the date of the
auction or time for receiving
sealed bids; and
``(bb) in accordance with
any requirements of the
regulations promulgated to
implement this section.
``(iv) Interest acquired.--A purchaser of a
parcel of land under this subparagraph shall
acquire title to the parcel in trust or
restricted status, free and clear of any and
all claims of title or ownership of all persons
or entities (not including the United States)
owning or claiming to own an interest in such
parcel prior to the time of sale.
``(J) Proceeds of sale.--
``(i) Subject to clauses (ii) and (iii),
the Secretary shall distribute the proceeds of
sale of a parcel of land under the provisions
of this section to the owners of interests in
such parcel in proportion to their respective
ownership interests.
``(ii) Proceeds attributable to the sale of
trust or restricted interests shall be
maintained in accounts as trust personalty.
``(iii) Proceeds attributable to the sale
of interests of owners whose whereabouts are
unknown, of undetermined heirs, and of other
persons whose ownership interests have not been
recorded shall be held by the Secretary until
such owners, heirs, or other persons have been
determined, at which time such proceeds shall
be distributed in accordance with clauses (i)
and (ii).
``(K) Lack of bids or consent.--
``(i) Lack of bids.--If no bidder described
in subparagraph (I) presents a bid that equals
or exceeds the final appraised value, the
Secretary may either--
``(I) purchase the parcel of land
for its appraised fair market value on
behalf of the Indian tribe with
jurisdiction over the land, subject to
the lien and procedures provided under
section 214(b) (25 U.S.C. 2213(b)); or
``(II) terminate the partition
process.
``(ii) Lack of consent.--If an applicant
fails to obtain any applicable consent required
under the provisions of subparagraph (D) by the
date established by the Secretary prior to the
proposed sale, the Secretary may either extend
the time for obtaining any such consent or deny
the request for partition.
``(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
order for ejectment or any other appropriate
remedy necessary for the partition of the land
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
against the United States or that the United
States is a necessary and indispensable party.
``(4) Grants and loans.--The Secretary may provide grants
and low interest loans to successful bidders at sales
authorized by this subsection, provided that--
``(A) the total amount of such assistance in any
such sale shall not exceed 20 percent of the appraised
value of the parcel of land sold; and
``(B) the grant or loan funds provided shall only
be applied toward the purchase price of the parcel of
land sold.
``(5) Regulations.--The Secretary is authorized to adopt
such regulations as may be necessary to implement the
provisions of this subsection. Such regulations shall include
provisions for giving notice of sales to prospective purchasers
eligible to submit bids at sales conducted under paragraph
(2)(I).''.
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 for certain purposes
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
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, enter into a lease of the
parcel for agricultural purposes for a term not to exceed 10
years.
``(2) Rule of construction.--No such lease shall be
effective until it has been executed by the owners of all
undivided trust or restricted interests in the parcel.
``(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. No such application shall be valid or
considered if it is received by the Secretary prior to the date
that is 1 year after the date on which notice is published
pursuant to section 8(a)(4) of the American Indian Probate
Reform Act of 2004.
``(2) Commencement of owner-managed status.--
Notwithstanding the approval of 1 or more applications pursuant
to paragraph (1), no trust or restricted interest in a parcel
of land shall acquire owner-managed status until applications
for all of the trust or restricted interests in such parcel of
land have been submitted to and approved by the Secretary
pursuant to this section.
``(e) Validity of Leases.--No lease of trust or restricted
interests in a parcel of land that is owner-managed under this section
shall be valid or enforceable against the owners of such interests, or
against the land, the interest or the United States, unless such
lease--
``(1) is consistent with, and entered into in accordance
with, the requirements of this section; or
``(2) has been approved by the Secretary in accordance with
other Federal laws applicable to the leasing of trust or
restricted land.
``(f) Lease Revenues.--The Secretary shall not be responsible for
the collection of, or accounting for, any lease revenues accruing to
any interests under a lease authorized by subsection (e), so long as
such interest is in owner-managed 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 pursuant to this section shall
continue to have jurisdiction over the interest to the same
extent and in all respects that such 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 referred to in
paragraph (1), 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 the 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 has 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--
``(A) the interest 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) the interest 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 transaction described in paragraph (1) of
subsection (c), interests that acquire 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 (including leases with terms of a duration in excess of
10 years) that would otherwise apply to such interests if the interests
had not acquired owner-managed status under this section.
``(k) Effect of Section.--Subject to subsections (c), (f), and (h),
nothing in this section diminishes or otherwise affects any authority
or responsibility of the Secretary with respect to an interest in trust
or restricted land.''.
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 207 (25 U.S.C. 2206), by adding a subsection
at the end as follows:
``(p) Purchase Option at Probate.--
``(1) In general.--The trust or restricted interests in a
parcel of land in the decedent's estate may be purchased at
probate in accordance with the provisions of this subsection.
``(2) Sale of interest at fair market value.--Subject to
paragraph (3), the Secretary is authorized to sell trust or
restricted interests in land subject to this subsection,
including the interest that a surviving spouse would otherwise
receive under section 207(a)(2) (A) or (D), at no less than
fair market value, as determined in accordance with the
provisions of this Act, to any of the following eligible
purchasers:
``(A) Any other eligible heir taking an interest in
the same parcel of land by intestate succession or the
decedent's other devisees of interests in the same
parcel who are eligible to receive a devise under
section 207(b)(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 to purchase; auction; consent requirements.--
No sale of an interest in probate shall occur under this
subsection unless--
``(A) an eligible purchaser described in paragraph
(2) submits a written request to purchase prior to the
distribution of the interest to heirs or devisees of
the decedent and in accordance with any regulations of
the Secretary; and
``(B) except as provided in paragraph (5), the
heirs or devisees of such interest, and the decedent's
surviving spouse, if any, receiving a life estate under
section 207(a)(2) (A) or (D) consent to the sale.
If the Secretary receives more than 1 request to purchase the
same interest, the Secretary shall sell the interest by public
auction or sealed bid (as determined by the Secretary) at not
less than the appraised fair market value to the eligible
purchaser submitting the highest bid.
``(4) Appraisal and notice.--Prior to the sale of an
interest pursuant to this subsection, the Secretary shall--
``(A) appraise the interest at its fair market
value in accordance with this Act;
``(B) provide eligible heirs, other devisees, and
the Indian tribe with jurisdiction over the interest
with written notice, sent by first class mail, that the
interest is available for purchase in accordance with
this subsection; and
``(C) if the Secretary receives more than 1 request
to purchase the interest by a person described in
subparagraph (B), provide notice of the manner (auction
or sealed bid), time and place of the sale, a
description, and the appraised fair market value, of
the interest to be sold--
``(i) to the heirs or other devisees and
the Indian tribe with jurisdiction over the
interest, by first class mail; and
``(ii) to all other eligible purchasers, by
posting written notice in at least 5
conspicuous places in the vicinity of the place
of hearing.
``(5) Small undivided interests in indian lands.--
``(A) In general.--Subject to subparagraph (B), the
consent of a person who is an heir otherwise required
under paragraph (3)(B) shall not be required for the
auction and sale of an interest at probate under this
subsection if--
``(i) the interest is passing by intestate
succession; and
``(ii) prior to the auction the Secretary
determines in the probate proceeding that the
interest passing to such heir represents less
than 5 percent of the entire undivided
ownership of the parcel of land as evidenced by
the Secretary's records as of the time the
determination is made.
``(B) Exception.--Notwithstanding subparagraph (A),
the consent of such heir shall be required for the sale
at probate of the heir's interest if, at the time of
the decedent's death, the heir was residing on the
parcel of land of which the interest to be sold was a
part.
``(6) Distribution of proceeds.--Proceeds from the sale of
interests under this subsection shall be distributed to the
heirs, devisees, or spouse whose interest was sold in
accordance with the values of their respective interests. The
proceeds attributable to an heir or devisee shall be held in an
account as trust personalty if the interest sold would have
otherwise passed to the heir or devisee in trust or restricted
status.'';
(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
to--
``(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(b)(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 a person or entity that is not
a member of the family of the owner of
the land.
``(ii) Recording of interest.--On request
by the 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) limits--
``(I) the ability of an owner of
land to which that clause applies to
mortgage the land; or
``(II) 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.''; and
(II) in subparagraph (B), by
striking ``subparagraph (A)'' and all
that follows through ``207(a)(6)(B) of
this title'' and inserting ``paragraph
(1)'';
(4) in section 207 (25 U.S.C. 2206), by striking subsection
(g);
(5) 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), by--
(i) adding in paragraph (1) ``or from an
heir during probate in accordance with section
207(p) (25 U.S.C. 2206(p))'' after ``owner,'';
and
(ii) 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
(iii) 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 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''; and
(E) by adding at the end of the section:
``(d) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section $75,000,000 for fiscal year
2005, $95,000,000 for fiscal year 2006, and $145,000,000 for each of
fiscal years 2007 through 2010.'';
(6) 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.--The Secretary may, in
consultation with tribal governments and other entities
described in section 213(b)(3), periodically remove liens
referred to in paragraph (1) from interests in land acquired by
the Secretary.'';
(7) in section 215 (25 U.S.C. 2214), in the last sentence,
by striking ``section 2212 of this title'' and inserting ``this
Act'';
(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 a trust or restricted
interest in 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 the
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 inserting ``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, or interest in, 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, or interest in, 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 parcel or interest is
offered for sale to an entity or person 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).'';
(10) in section 219(b)(1)(A) (25 U.S.C. 2218(b)(1)(A)), by
striking ``100'' and inserting ``90''; and
(11) in section 219, by adding at the end of the section:
``(g) Other Laws.--Nothing in this Act shall be construed to
supersede, repeal, or modify any general or specific statute
authorizing the grant or approval of any type of land use transaction
involving fractional interests in trust or restricted land.''.
(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 2004) of a
trust or restricted interest in land;
``(B) any person meeting the definition of Indian
under the Indian Reorganization Act (25 U.S.C. 479) and
the regulations promulgated thereunder; and
``(C) with respect to the inheritance and ownership
of trust or restricted land in the State of California
pursuant to section 207, any person described in
subparagraph (A) or (B) or any person who owns a trust
or restricted interest in a parcel of such land in that
State.'';
(2) by striking paragraph (4) and inserting the following:
``(4) `trust or restricted lands' means lands, title to
which is held by the United States in trust for an Indian tribe
or individual, or which is held by an Indian tribe or
individual subject to a restriction by the United States
against alienation; and `trust or restricted interest in land'
or `trust or restricted interest in a parcel of land' means an
interest in land, title to which is held in trust by the United
States for an Indian tribe or individual, or which is held by
an Indian tribe or individual subject to a restriction by the
United States against alienation.''; and
(3) 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, as evidenced by
the Secretary's records at the time of the determination--
``(A) 50 or more but less than 100 co-owners of
undivided trust or restricted interests, and no 1 of
such co-owners holds a total undivided trust or
restricted interest in the parcel that is greater than
10 percent of the entire undivided ownership of the
parcel; or
``(B) 100 or more co-owners of undivided trust or
restricted interests;
``(7) `land' means any real property, and includes within
its meaning for purposes of this Act improvements permanently
affixed to real property;
``(8) `person' or `individual' means a natural person;
``(9) `eligible heirs' means, for purposes of section 207
(25 U.S.C. 2206), any of a decedent's children, grandchildren,
great grandchildren, full siblings, half siblings by blood, and
parents who are--
``(A) Indian; or
``(B) lineal descendents within 2 degrees of
consanguinity of an Indian; or
``(C) owners of a trust or restricted interest in a
parcel of land for purposes of inheriting by descent,
renunciation, or consolidation agreement under section
207 (25 U.S.C. 2206), another trust or restricted
interest in such parcel from the decedent; and
``(10) `without regard to waste' means, with respect to a
life estate interest in land, that the holder of such estate is
entitled to the receipt of all income, including bonuses and
royalties, from such land to the exclusion of the
remaindermen.''.
(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)(2) of the Indian Land
Consolidation Act (25 U.S.C. 2206(f)(2)) 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''.
(3) Probate code development and legal assistance grants.--
Section 207(f)(3) of the Indian Land Consolidation Act (25
U.S.C. 2206(f)(3)) is amended by striking paragraph (3) and
inserting the following:
``(3) Probate code development and legal assistance
grants.--In carrying out this section, the Secretary may award
grants to--
``(A) Indian tribes, for purposes of tribal probate
code development and estate planning services to tribal
members;
``(B) organizations that provide legal assistance
services for Indian tribes, Indian organizations, and
individual owners of interests in trust or restricted
lands that are qualified as nonprofit organizations
under section 501(c)(3) of the Internal Revenue Code of
1986 and provide such services pursuant to Federal
poverty guidelines, for purposes of providing 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
``(C) in specific areas and reservations where
qualified nonprofit organizations referred to in
subparagraph (B) do not provide such legal assistance
to Indian tribes, Indian organizations, or individual
owners of trust or restricted land, to other providers
of such legal assistance;
that submit an application to the Secretary, in such form and
manner as the Secretary may prescribe.
``(4) Authorization for appropriations.--There is
authorized to be appropriated such sums as may be necessary to
carry out the provisions of paragraph (3).''.
(4) Notification to landowners.--Section 207 of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by adding at
the end the following:
``(l) Notification to Landowners.--After receiving written request
by any owner of a trust or restricted interest in land, the Secretary
shall provide to such landowner the following information with respect
to each tract of trust or restricted land in which the landowner has an
interest:
``(1) The location of the tract of land involved.
``(2) The identity of each other co-owner of interests in
the parcel of land.
``(3) The percentage of ownership of each owner of an
interest in the tract.
``(m) Pilot Project for the Management of Trust Assets of Indian
Families and Relatives.--
``(1) Development pilot project.--The Secretary shall
consult with tribes, individual landowner organizations, Indian
advocacy organizations, and other interested parties to--
``(A) develop a pilot project for the creation of
legal entities such as private or family trusts,
partnerships corporations, or other organizations to
improve, facilitate, and assist in the efficient
management of interests in trust or restricted lands or
funds owned by Indian family members and relatives; and
``(B) develop proposed rules, regulations, and
guidelines to implement the pilot project, including--
``(i) the criteria for establishing such
legal entities;
``(ii) reporting and other requirements
that the Secretary determines to be appropriate
for administering such entities; and
``(iii) provisions for suspending or
revoking the authority of an entity to engage
in activities relating to the management of
trust or restricted assets under the pilot
project in order to protect the interests of
the beneficial owners of such assets.
``(2) Primary purposes; limitation; approval of
transactions; payments by secretary.--
``(A) Purposes.--The primary purpose of any entity
organized under the pilot project shall be to improve,
facilitate, and assist in the management of interests
in trust or restricted land, held by 1 or more persons,
in furtherance of the purposes of this Act.
``(B) Limitation.--The organization or activities
of any entity under the pilot project 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 trust or restricted
interests in land to exercise any powers over such
interests greater than that held by the Secretary with
respect to such interests.
``(C) Secretarial approval of transactions.--Any
transaction involving the lease, use, mortgage or other
disposition of trust or restricted land or other trust
assets administered by or through an entity under the
pilot project shall be subject to approval by the
Secretary in accordance with applicable Federal law.
``(D) Payments.--The Secretary shall have the
authority to make payments of income and revenues
derived from trust or restricted land or other trust
assets administered by or through an entity
participating in the pilot project directly to the
entity, in accordance with requirements of the
regulations adopted pursuant to this subsection.
``(3) Limitations on pilot project.--
``(A) Number of organizations.--The number of
entities established under the pilot project authorized
by this subsection shall not exceed 30.
``(B) Regulations required.--No entity shall
commence activities under the pilot project authorized
by this subsection until the Secretary has adopted
final rules and regulations under paragraph (1)(B).
``(4) 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 and
regulations for the creation and management of
interests in trust and restricted lands under the pilot
project;
``(B) the feasibility of accurately monitoring the
performance of legal entities such as those involved in
the pilot project, and the effectiveness of such
entities as mechanisms to manage and protect trust
assets;
``(C) the impact that the use of entities such as
those in the pilot project may have with respect to the
accomplishment of the goals of the Indian Land
Consolidation Act (25 U.S.C. 2201 et seq.); and
``(D) any recommendations that the Secretary may
have regarding whether to adopt a permanent program as
a management and consolidation measure for interests in
trust or restricted lands.
``(n) Notice to Heirs.--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. Such efforts shall include--
``(1) a search of publicly available records and Federal
records, including telephone and address directories and
including electronic search services or directories;
``(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 $2,000,
engaging the services of an independent firm to conduct a
missing persons search.
``(o) Missing Heirs.--
``(1) For purposes of this subsection and subsection (m),
an heir may be presumed missing if--
``(A) such heir's whereabouts remain unknown 60
days after completion of notice efforts under
subsection (m); and
``(B) in the proceeding to determine a decedent's
heirs, the Secretary finds that the heir has had no
contact with other heirs of the decedent, if any, or
with the Department relating to trust or restricted
land or other trust assets at any time during the 6-
year period preceding the hearing to determine heirs.
``(2) Before the date for declaring an heir missing, any
person may request an extension of time to locate such heir.
The Secretary shall grant a reasonable extension of time for
good cause.
``(3) An heir shall be declared missing only after a review
of the efforts made in the heirship proceeding and a finding
has been made that this subsection has been complied with.
``(4) An heir determined to be missing pursuant to this
subsection shall be deemed to have predeceased the decedent for
purposes of descent and devise of trust or restricted land and
trust personalty within that decedent's estate.''.
SEC. 7. 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.) is
amended by adding at the end the following:
``SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHEREABOUTS OF INTEREST
OWNERS.
``On at least an annual basis, the Secretary shall include along
with other regular reports to owners of trust or restricted interests
in land and individual Indian money account owners a change of name and
address form by means of which the owner may confirm or update the
owner's name and address. The change of name and address form shall
include a section in which the owner may confirm and update the owner's
name and address.''.
SEC. 8. NOTICE; EFFECTIVE DATE.
(a) Notice.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Secretary shall notify Indian tribes
and owners of trust or restricted lands of the amendments made
by this Act.
(2) Specifications.--The notice required under paragraph
(1) shall be designed to inform Indian owners of trust or
restricted land of--
(A) the effect of this Act and the amendments made
by this Act, with emphasis on the effect of the
provisions of this Act and the amendments made by this
Act, on the testate disposition and intestate descent
of their interests in trust or restricted land;
(B) estate planning options available to the
owners, including any opportunities for receiving
estate planning assistance or advice;
(C) the use of negotiated sales, gift deeds, land
exchanges, and other transactions for consolidating the
ownership of land; and
(D) a toll-free telephone number to be used for
obtaining information regarding the provisions of this
Act and any trust assets of such owners.
(3) Requirements.--The Secretary shall provide the notice
required under paragraph (1)--
(A) by direct mail for those Indians with interests
in trust and restricted lands for which the Secretary
has an address for the interest holder;
(B) through the Federal Register;
(C) through local newspapers in areas with
significant Indian populations, reservation newspapers,
and newspapers that are directed at an Indian audience;
and
(D) through any other means determined appropriate
by the Secretary.
(4) Certification.--After providing notice under this
subsection, the Secretary shall--
(A) certify that the requirements of this
subsection have been met; and
(B) publish notice of that certification in the
Federal Register.
(b) Effective Date.--Section 207 of the Indian Land Consolidation
Act (25 U.S.C. 2206), except subsections (e) and (f) of that section,
shall not apply to the estate of an individual who dies before the date
that is 1 year after the date on which the Secretary makes the
certification required under subsection (a)(4).
SEC. 9. SEVERABILITY.
If any provision of this Act or of any amendment made by this Act,
or the application of any such provision to any person or circumstance,
is held to be invalid for any reason, the remainder of this Act and of
amendments made by this Act, and the application of the provisions and
of the amendments made by this Act to any other person or circumstance
shall not be affected by such holding, except that each of subclauses
(II), (III), and (IV) of section 205(d)(2)(I)(i) is deemed to be
inseverable from the other 2, such that if any 1 of those 3 subclauses
is held to be invalid for any reason, neither of the other 2 of such
subclauses shall be given effect.
SEC. 10. REGULATIONS.
The Secretary is authorized to adopt such regulations as may be
necessary to implement the provisions of this Act.
Calendar No. 515
108th CONGRESS
2d Session
S. 1721
[Report No. 108-264]
_______________________________________________________________________
A BILL
To amend the Indian Land Consolidation Act to improve provisions
relating to probate of trust and restricted land, and for other
purposes.
_______________________________________________________________________
May 13, 2004
Reported with an amendment