II 109th CONGRESS 2d Session S. 3885 IN THE SENATE OF THE UNITED STATES September 11, 2006 Mr. Johnson introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To amend Public Law 98–513 to provide for the inheritance of small fractional interests within the Lake Traverse Indian Reservation.

1.

Short title

This Act may be cited as the Lake Traverse Reservation Act Amendments of 2006.

2.

Amendments to Lake Traverse Heirship Act

Public Law 98–513 is amended by striking section 5 (98 Stat. 2413) and inserting the following:

5.

Inheritance of small fractional interest

(a)

Definitions

In this section: (1)

Escheatment

The term escheatment means an escheatment to the Tribe of an interest in land pursuant to this section. (2)

Secretary

The term Secretary means the Secretary of the Interior. (3)

Small fractional interest

The term small fractional interest means an undivided trust or restricted interest in a parcel of land within the reservation that— (A)represents less than 5 percent of the entire undivided ownership of the parcel of land (as reflected in the decedent’s estate inventory as of the date on which the decisionmaker enters the final decision determining heirs); and (B)does not exceed the equivalent of 21/2 acres if the interest were to be expressed in terms of its proportionate share of the total acreage of the parcel of land of which the parcel is a part. (b)

Intestate inheritance in general

Notwithstanding section 3, no small fractional interest shall pass by intestate succession under this Act or any other provision of law except as provided in subsection (c). (c)

Inheritance by Tribe

If a person dies possessed of a small fractional interest that has not been devised in accordance with subsection (d) to 1 or more eligible devisees described in that subsection, the small fractional interest shall pass to the Tribe, with title to the interest to be held by the United States in trust for the Tribe. (d)

Inheritance by testamentary devise

(1)

Eligible devisees

Notwithstanding any other provision of this Act, and subject to paragraph (2), a small fractional interest may be devised only to the following eligible devisees: (A)The tribe. (B)Any person who— (i)is a member of the Tribe; or (ii)is eligible to be a member of the Tribe, on the condition that, not later than 180 days after the date of receipt of notice of the probate hearing, the person provides proof of enrollment in the Tribe in accordance with the enrollment procedures of the Tribe. (2)

Requirements

No devise of a small fractional interest shall be valid as to a devisee unless— (A)the devisee is eligible to receive the interest by devise under paragraph (1); (B)the devisee is expressly identified in the devise by name; and (C)the devise is made in a will that has been approved by the Secretary in accordance with section 2 of the Act of June 25, 1910 (36 Stat. 856, chapter 431). (3)

Holding in trust

Any small fractional interest devised in accordance with this subsection shall pass to the devisee or devisees on the death of the testator, with title to be held by the United States in trust for the devisee or devisees. (e)

Notice

Not later than 180 days after the date of enactment of the Lake Traverse Reservation Act Amendments of 2006, the Secretary shall provide notice of the requirements of this section to owners of trust and restricted interests in land within the Lake Traverse Indian Reservation by— (1)posting written notice of the amendment at the administrative headquarters of the Tribe and at the Agency of the Bureau of Indian Affairs located in Agency Village, South Dakota; (2)publishing the notice not fewer than 4 times in newspapers of general circulation in all counties in which any part of the Lake Traverse Indian Reservation is located; and (3)sending the notice by first class mail to the last known addresses of Indians with interests in trust or restricted land within the Lake Traverse Indian Reservation. (f)

Certification

After providing notice under subsection (e), the Secretary shall— (1)certify that notice has been given in accordance with that subsection; and (2)publish notice of the certification in the Federal Register. (g)

Escheatments

(1)

Purposes

The purposes of this subsection are— (A)to establish a process for providing compensation for escheatments; and (B)to ratify the escheatments. (2)

Ratification of escheatments

(A)

In general

Subject to the requirements of this subsection, each escheatment is ratified. (B)

Holding in trust

The title to each interest subject to an escheatment shall be held by the United States in trust for the Tribe. (3)

Actions barred

Notwithstanding any other provision of law, except as provided in subsection (4)(C)(ii), no court shall have jurisdiction over a claim challenging— (A)an escheatment of any property interest pursuant to this section; or (B)the compensation provided for an escheatment. (4)

Compensation

(A)

In general

The Secretary shall provide compensation in an amount described in subparagraph (B) to any individual that, absent an escheatment, would have inherited land or an interest in land. (B)

Amount

(i)

In general

In determining the amount of compensation to be provided under subparagraph (A), the Secretary shall take into consideration— (I)any appraisal report prepared incident to the probate of the estate of the Indian decedent who last owned the applicable interest immediately prior to its escheat to the Tribe; or (II)if an appraisal report described in subclause (I) is not available, the appraised value of the land or interest in land as of the date of probate of the land or interest. (ii)

Interest

The amount of compensation provided under this subsection shall include interest calculated from the date of probate of the applicable land or interest in land in accordance with section 3116 of title 40, United States Code. (C)

Review of determinations

(i)

Administrative review

A determination by the Secretary of the amount of compensation provided under this subsection shall be subject to administrative review in accordance with regulations of the Secretary contained in part 2 of title 25, Code of Federal Regulations (or successor regulations). (ii)

Judicial review

(I)

In general

No court shall have jurisdiction to review a determination by the Secretary of the amount of compensation provided under this subsection until the date on which a final decision is made with respect to the administrative review of the determination. (II)

Deadline

(aa)

In general

An action seeking judicial review of a determination by the Secretary under this subsection shall be filed by not later than 1 year after the date described in subclause (I). (bb)

Failure to meet deadline

If the deadline described in item (aa) is not met with respect to a determination of the Secretary, the determination shall not be subject to judicial review. (D)

Exclusive remedy

Compensation provided under this subsection with respect to an escheatment shall be the exclusive remedy for the escheatment. (5)

Regulations

The Secretary may promulgate such regulations as the Secretary determines to be necessary to carry out this subsection. (6)

Applicability

(A)

In general

This section shall apply to escheatments only if— (i)a provision contained in any subsections (a) through (d) is determined to be invalid for any reason by a court of competent jurisdiction; and (ii)all appeals of such a determination are exhausted. (B)

Effect of subsection

Nothing in this subsection invalidates any provision contained in any subsections (a) through (d). (h)

Effect on Interests and wills

Nothing in this section shall affect any interest in the estate of a person who dies, or the validity or effect of any will executed, before the date that is 1 year after the date on which the Secretary publishes notice of the certification under subsection (f).

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