II 109th CONGRESS 1st Session S. 1481 IN THE SENATE OF THE UNITED STATES July 26, 2005 Mr. McCain introduced the following bill; which was read twice, considered, read the third time, and passed A BILL To amend the Indian Land Consolidation Act to provide for probate reform.

1.

Short title

This Act may be cited as the Indian Land Probate Reform Technical Corrections Act of 2005.

2.

Partition of highly fractionated Indian land

Section 205 of the Indian Land Consolidation Act (25 U.S.C. 2204) is amended— (1)by striking subsection (a) and inserting the following: (a)

Purchase of land

(1)

In general

Subject to subsection (b), any Indian tribe may purchase, at not less than fair market value and with the consent of the owners of the interests, part or all of the interests in— (A)any tract of trust or restricted land within the boundaries of the reservation of the tribe; or (B)land that is otherwise subject to the jurisdiction of the tribe. (2)

Required consent

(A)

In general

The Indian tribe may purchase all interests in a tract described in paragraph (1) with the consent of the owners of undivided interests equal to at least 50 percent of the undivided interest in the tract. (B)

Interest owned by tribe

Interests owned by an Indian tribe in a tract may be included in the computation of the percentage of ownership of the undivided interests in that tract for purposes of determining whether the consent requirement under subparagraph (A) has been met. ; (2)by redesignating subsection (d) as subsection (c); and (3)in subsection (c) (as redesignated by paragraph (2))— (A)in paragraph (2)— (i)in subparagraph (G)(ii)(I), by striking a higher valuation of the land and inserting a value of the land that is equal to or greater than that of the earlier appraisal; and (ii)in subparagraph (I)(iii)— (I)in subclause (III), by inserting (if any) after this section; and (II)in subclause (IV)— (aa)in item (aa), by striking less and inserting more; and (bb)in item (bb), by striking to implement this section and inserting under paragraph (5); and (B)in paragraph (5), in the second sentence, by striking shall and inserting may.

3.

Tribal probate codes

Section 206 of the Indian Land Consolidation Act (25 U.S.C. 2205) is amended— (1)in subsection (b)(3), by striking subparagraph (A) and inserting the following: (A)the date that is 1 year after the date on which the Secretary makes the certification required under section 8(a)(4) of the American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note; Public Law 108–374); or ; and (2)in subsection (c)— (A)in paragraph (1)(A), by striking section and all that follows through the Indian tribe and inserting section 207(b)(2)(A)(ii), the Indian tribe; and (B)in paragraph (2)(A)(i)(II)(bb), by inserting in writing after agrees.

4.

Descent and distribution

(a)

In general

Section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206) is amended— (1)by redesignating subsections (h) through (p) as subsections (g) through (o), respectively; (2)in subsection (g) (as redesignated by paragraph (1))— (A)in paragraph (2)— (i)by inserting specifically after pertains; and (ii)by striking subparagraph (B) and inserting the following: (B)the allotted land (or any interest relating to such land) of 1 or more specific Indian tribes expressly identified in Federal law, including any of the Federal laws governing the probate or determination of heirs associated with, or otherwise relating to, the land, interest in land, or other interests or assets that are owned by individuals in— (i)Five Civilized Tribes restricted fee status; or (ii)Osage Tribe restricted fee status. ; and (B)by adding at the end the following: (3)

Effect of subsection

Except to the extent that this Act otherwise affects the application of a Federal law described in paragraph (2), nothing in this subsection limits the application of this Act to trust or restricted land, interests in such land, or any other trust or restricted interests or assets. ; (3)in subsection (h) (as redesignated by paragraph (1))— (A)in paragraph (6), by striking (25 U.S.C. 2205); and (B)in paragraph (7), by inserting in trust or restricted status after testator; (4)in subsection (j) (as redesignated by paragraph (1))— (A)in paragraph (2)(A)— (i)in clause (ii)(I), by striking the date of enactment of this subparagraph and inserting the date that is 1 year after the date on which the Secretary publishes a notice of certification under section 8(a)(4) of the American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note; Public Law 108–374); and (ii)in clause (iii), by striking the provisions of section 207(a)(2)(A) and inserting subsection (a)(2)(A); (B)in paragraph (8)(D), by striking the provisions of section 207(a)(2)(D) (25 U.S.C. 2206(a)(2)(D)) and inserting subsection (a)(2)(D); and (C)in paragraph (9)(C)— (i)by striking section 207(e) (25 U.S.C. 2206(e)) and inserting subsection (e); and (ii)by striking section 207(p) (25 U.S.C. 2206(p)) and inserting subsection (o); and (5)in subsection (o) (as redesignated by paragraph (1))— (A)in paragraph (2)— (i)in the matter preceding subparagraph (A), by striking section 207(a)(2)(A) or (D) and inserting subparagraph (A) or (D) of subsection (a)(2); and (ii)in subparagraph (A), by striking section 207(b)(1)(A) and inserting subsection (b)(1)(A); (B)in paragraph (3)(B), by striking section 207(a)(2)(A) or (D) and inserting subparagraph (A) or (D) of subsection (a)(2); and (C)in paragraph (6)— (i)in the first sentence, by striking Proceeds and inserting the following: (A)

In general

Proceeds ; and (ii)by striking the second sentence and inserting the following: (B)

Holding in trust

Proceeds described in subparagraph (A) shall be deposited and held in an account as trust personalty if the interest sold would otherwise pass to— (i)the heir, by intestate succession under subsection (a); or (ii)the devisee in trust or restricted status under subsection (b)(1). . (b)

Nontestamentary disposition

Section 207(a)(2)(D)(iv)(I)(aa) of the Indian Land Consolidation Act (25 U.S.C. 2206(a)(2)(D)(iv)(I)(aa)) is amended— (1)by striking clause (iii) and inserting this subparagraph; and (2)in subitem (BB), by striking any co-owner and inserting not more than 1 co-owner. (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 the subsection heading and inserting the following: (c)

Joint tenancy; right of survivorship

. (d)

Estate planning assistance

Section 207(f)(3) of the Indian Land Consolidation Act (25 U.S.C. 2206(f)(3)) is amended in the matter preceding subparagraph (A) by inserting , including noncompetitive grants, after grants.

5.

Fractional interest acquisition program

Section 213 of the Indian Land Consolidation Act (25 U.S.C. 2212) is amended— (1)by striking the section heading and inserting the following:

213.

Fractional interest acquisition program

; and(2)in subsection (a)(1), by striking (25 U.S.C. 2206(p)).

6.

Establishing fair market value

Section 215 of the Indian Land Consolidation Act (25 U.S.C. 2214) is amended by striking the last sentence and inserting the following: Such a system may govern the amounts offered for the purchase of interests in trust or restricted land under this Act..

7.

Land ownership information

Section 217(e) of the Indian Land Consolidation Act (25 U.S.C. 2216(e)) is amended by striking be made available to and inserting be made available to—.

8.

Conforming amendments

(a)

Probate reform

The American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note; Public Law 108–374) is amended— (1)in section 4, by striking (as amended by section 6(a)(2)); and (2)in section 9, by striking section 205(d)(2)(I)(i) and inserting section 205(c)(2)(I)(i) of the Indian Land Consolidation Act (25 U.S.C. 2204(c)(2)(I)(i)). (b)

Transfer and exchange of land

Section 4 of the Act of June 18, 1934 (25 U.S.C. 464) is amended to read as follows:

4.

Transfer and exchange of restricted Indian land and shares of Indian tribes and corporations

(a)

Approval

Except as provided in this section, no sale, devise, gift, exchange, or other transfer of restricted Indian land or shares in the assets of an Indian tribe or corporation organized under this Act shall be made or approved. (b)

Transfer to Indian tribe

(1)

In general

Land or shares described in subsection (a) may be sold, devised, or otherwise transferred to the Indian tribe on the reservation of which the land is located, or in the corporation of which the shares are held or were derived (or a successor of such a corporation), with the approval of the Secretary of the Interior. (2)

Descent and devise

Land and shares transferred under paragraph (1) shall descend or be devised to any member of the Indian tribe or corporation (or an heir of such a member) in accordance with the Indian Land Consolidation Act (25 U.S.C. 2201 et seq.), including a tribal probate code approved under that Act (including regulations). (c)

Voluntary exchanges

The Secretary of the Interior may authorize a voluntary exchange of land or shares described in subsection (a) that the Secretary determines to be of equal value if the Secretary determines that the exchange is— (1)expedient; (2)beneficial for, or compatible with, achieving proper consolidation of Indian land; and (3)for the benefit of cooperative organizations.

.

9.

Effective date

The amendments made by this Act shall be effective as if included in the American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note; Public Law 108–374).