II 110th CONGRESS 1st Session S. 1901 IN THE SENATE OF THE UNITED STATES July 30, 2007 Mr. Thune 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 Heirship Act of 2007.
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)
Definition of small fractional interest
In this section, the term small fractional interest means an undivided trust or restricted interest in a parcel of land within the reservation that— (1)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 (2)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 interest 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 is an enrolled member of the Tribe prior to entry of the final probate order. (2)
Requirements
(A)
No surviving spouse
In any case in which a surviving spouse of a decedent does not exist, the small fractional interest of the decedent shall pass only to an heir of the decedent who is an enrolled member of the Tribe before the date on which a final probate order relating to the estate is entered. (B)
Devises of small fractional interests
No devise of a small fractional interest shall be valid as to a devisee unless— (i)the devisee is eligible to receive the small fractional interest by devise under paragraph (1); and (ii)the devise is made in a will that has been approved by the Secretary of the Interior in accordance with section 2 of the Act of June 25, 1910 (36 Stat. 856, chapter 431). (C)
Descent of interest
A small fractional interest shall pass, in trust or restricted status— (i)(I)to the surviving child of the decedent, if the child is eligible to receive the interest by devise under paragraph (1); or (II)if 2 or more surviving children of the decedent are eligible to receive the interest, to the oldest of the children; (ii)(I)if the interest does not pass under clause (i), to the surviving grandchild of the decedent, if the grandchild is eligible to receive the interest by devise under paragraph (1); or (II)if 2 or more surviving grandchildren of the decedent are eligible to receive the interest, to the oldest of the grandchildren; (iii)(I)if the interest does not pass under clause (i) or (ii), to the surviving great-grandchild of the decedent, if the great-grandchild is eligible to receive the interest by devise under paragraph (1); or (II)if 2 or more surviving great-grandchildren of the decedent are eligible to receive the interest, to the oldest of the great-grandchildren; or (iv)if the interest does not pass under clause (i), (ii), or (iii), to the Tribe. (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.
.
3.
Notice to landowners; certification
(a)
Notice
Not later than 180 days after the date of enactment of this Act, the Secretary of the Interior (referred to in this Act as the Secretary) shall provide notice of the amendment made by section 2 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 Sisseton-Wahpeton Oyate of the Lake Traverse Reservation of North Dakota and South Dakota 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 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 Reservation. (b)
Certification
After providing notice under subsection (a), 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.
4.
Escheatments
(a)
Definition of escheatment
In this section, the term escheatment means an escheatment to the Sisseton-Wahpeton Oyate of an interest in land pursuant to section 5 of Public Law 98–513 (98 Stat. 2411). (b)
Purposes
The purposes of this section are— (1)to establish a process for providing compensation for escheatments; and (2)to ratify the escheatments. (c)
Ratification of escheatments
(1)
In general
Subject to the requirements of this section, each escheatment is ratified. (2)
Holding in trust
The title to each interest subject to an escheatment shall be held by the United States in trust for the Sisseton-Wahpeton Oyate. (d)
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— (1)an escheatment; or (2)the compensation provided for an escheatment. (e)
Compensation
(1)
In general
The Secretary shall provide compensation in an amount described in paragraph (2) to any individual that, absent an escheatment, would have inherited land or an interest in land. (2)
Amount
(A)
In general
In determining the amount of compensation to be provided under paragraph (1), the Secretary shall take into consideration— (i)any appraisal report prepared with respect to the probate of the estate of the decedent that owned the applicable land or interest in land on the day before the date on which the land or interest was subject to an escheatment; or (ii)if an appraisal described in clause (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. (B)
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. (3)
Review of determinations
(A)
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 chapters I and II of title 25, Code of Federal Regulations (or successor regulations). (B)
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
(I)
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 clause (i). (II)
Failure to meet deadline
If the deadline described in subclause (I) is not met with respect to a determination of the Secretary, the determination shall not be subject to judicial review. (4)
Exclusive remedy
Compensation provided under this subsection with respect to an escheatment shall be the exclusive remedy for the escheatment. (f)
Regulations
The Secretary shall promulgate such regulations as the Secretary determines to be necessary to carry out this section. (g)
Applicability
(1)
In general
This section shall apply to escheatments only if— (A)the amendment made by section 2 is determined to be invalid for any reason by a court of competent jurisdiction; and (B)all appeals of such a determination are exhausted. (2)
Effect of subsection
Nothing in this subsection invalidates the amendment made by section 2.
5.
Effective date
(a)
Effect on Interests
The amendment made by section 2 shall not affect any interest in the estate of a person who dies before the date that is 1 year after the date on which the Secretary publishes notice of the certification under section 3(b). (b)
Effect on Wills
The amendment made by section 2 shall not affect 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 section 3(b).