[Congressional Record Volume 149, Number 143 (Tuesday, October 14, 2003)]
[Senate]
[Pages S12535-S12546]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CAMPBELL:
S. 1721. A bill to amend the Indian Land Consolidation Act to improve
provisions relating to probate of trust and restricted land, and for
other purposes; to the Committee on Indian Affairs.
Mr. CAMPBELL. Mr. President, today I am pleased to introduce the
American Indian Probate Reform Act of 2003, which builds on the solid
foundation laid in Indian Land Consolidation Act Amendments of 2000,
P.L. 106-462, and S. 550, the Indian Probate Act of 2003, which I also
sponsored. The bill I am introducing today would bring a number of
greatly needed amendments to the Indian Land Consolidation Act
Amendments of 2000, including a revised uniform Federal probate code
applicable to trust and restricted Indian lands, and provisions that
will facilitate the consolidation of interests in highly fractionated
Indian lands.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1721
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Indian Probate
Reform Act of 2003''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Act of February 8, 1887 (commonly known as the
``Indian General Allotment Act'') (25 U.S.C. 331 et seq.),
which authorized the allotment of Indian reservations, did
not permit Indian allotment owners to provide for the
testamentary disposition of the land that was allotted to
them;
(2) that Act provided that allotments would descend
according to State law of intestate succession based on the
location of the allotment;
(3) the reliance of the Federal Government on the State law
of intestate succession with respect to the descent of
allotments has resulted in numerous problems affecting Indian
tribes, members of Indian tribes, and the Federal Government,
including
(A) the increasingly fractionated ownership of trust and
restricted land as that land is inherited by successive
generations of owners as tenants in common;
(B) the application of different rules of intestate
succession to each interest of a decedent in or to trust or
restricted land if that land is located within the boundaries
of more than 1 State, which application--
(i) makes probate planning unnecessarily difficult; and
(ii) impedes efforts to provide probate planning assistance
or advice;
(C) the absence of a uniform general probate code for trust
and restricted land, which makes it difficult for Indian
tribes to work cooperatively to develop tribal probate codes;
and
(D) the failure of Federal law to address or provide for
many of the essential elements of general probate law, either
directly or by reference, which--
(i) is unfair to the owners of trust and restricted land
(and heirs and devisees of owners); and
(ii) makes probate planning more difficult; and
(4) a uniform Federal probate code would likely--
(A) reduce the number of fractionated interests in trust or
restricted land;
(B) facilitate efforts to provide probate planning
assistance and advice;
(C) facilitate intertribal efforts to produce tribal
probate codes in accordance with section 206 of the Indian
Land Consolidation Act (25 U.S.C. 2205); and
(D) provide essential elements of general probate law that
are not applicable on the date of enactment of this Act to
interests in trust or restricted land.
SEC. 3. INDIAN PROBATE REFORM.
(a) Testamentary Disposition.--Section 207 of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by
striking subsection (a) and inserting the following:
``(a) Testamentary Disposition.--
``(1) General devise of an interest in trust or restricted
land.--
``(A) In general.--Subject to any applicable Federal law
relating to the devise or descent of trust or restricted
land, or a tribal probate code approved by the Secretary in
accordance with section 206, the owner of an interest in
trust or restricted land may devise such an interest to--
``(i) an Indian tribe with jurisdiction over the land; or
``(ii) any Indian; or
``(iii) any lineal descendant of the testator; or
``(iv) any person who owns a preexisting undivided trust or
restricted interest in the same parcel of land;
in trust or restricted status.
``(B) Rule of interpretation.--Any devise of an interest in
trust or restricted land or personal property to a devisee
listed in subparagraph (A) shall be considered to be a devise
of the interest in trust or restricted status, unless--
``(i) language in the will clearly evidences the testator's
intent that the interest is to vest in the devisee as a fee
interest without restrictions; or
``(ii) the interest devised is a life estate.
``(2) Devise of trust or restricted land as a life estate
or in fee.--
``(A) In general.--Except as provided under any applicable
Federal law, any interest in trust or restricted land that is
not devised in accordance with paragraph (1) may be devised
only--
``(i) as a life estate without regard to waste to any
person, with the remainder being devised only in accordance
with subparagraph (B) or paragraph (1); or
``(ii) except as provided in subparagraph (B), in fee to
any person.
``(B) Limitation.--Any interest in trust or restricted land
that is subject to section 4 of the Act of June 18, 1934 (25
U.S.C. 464), may be devised only in accordance with--
``(i) that section;
``(ii) subparagraph (A)(i); or
``(iii) paragraph (1).
``(3) General devise of an interest in trust or restricted
personal property.--
``(A) Trust or restricted personal property defined.--The
term `Trust or restricted personal property' as used in this
section includes--
``(i) all funds and securities of any kind which are held
in trust in an individual Indian money account or otherwise
supervised for the decedent by the Secretary; and
[[Page S12536]]
``(ii) absent clear evidence to the contrary, all personal
property permanently affixed to trust or restricted lands.
``(B) In general.--Subject to any applicable Federal law
relating to the devise or descent of such trust or restricted
personal property, or a tribal probate code approved by the
Secretary in accordance with section 206, the owner of an
interest in trust or restricted personal property may devise
such an interest to any person or entity.
``(C) Maintenance as trust or restricted personal
property.--Except as provided in paragraph (1)(B), where an
interest in trust or restricted personal property is devised
to a devisee listed in paragraph (1)(A), the Secretary shall
maintain and continue to manage such interests as trust or
restricted personal property .
``(D) Direct disbursement and distribution.--In the case of
a devise of an interest in trust or restricted personal
property to a devisee not listed in paragraph (1)(A), the
Secretary shall directly disburse and distribute such
personal property to the devisee.
``(4) Ineligible devisees of trust or restricted interest;
invalid wills.--Any interest in trust or restricted land or
personal property that is devised as a trust or restricted
interest to a devisee not listed in subparagraph (A) of
paragraph (1) shall descend to the devisee as a fee interest.
Any interest in trust or restricted land or personal property
that is not disposed of by a valid will shall descend in
accordance with the applicable law of intestate succession as
provided for in subsection (b).''.
(b) Nontestamentary Disposition.--Section 207 of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by
striking subsection (b) and inserting the following:
``(b) Nontestamentary Disposition.--
``(1) Rules of descent.--Subject to any applicable Federal
law relating to the devise or descent of trust or restricted
property, any interest in trust or restricted property,
including personal property, that is not disposed of by a
valid will--
``(A) shall descend according to a tribal probate code that
is approved in accordance with section 206; or
``(B) in the case of an interest in trust or restricted
property to which such a code does not apply, shall descend
in accordance with--
``(i) paragraphs (2) through (4); and
``(ii) other applicable Federal law.
``(2) Rules governing descent of estate.--
``(A) Surviving spouse.--If there is a surviving spouse of
the decedent, such spouse shall receive trust and restricted
property in the estate as follows:
``(i) If the decedent is survived by an heir described in
subparagraph (B) (i), (ii), (iii), or (iv), the surviving
spouse shall receive \1/3\ of the trust or restricted
personal property of the decedent and a life estate without
regard to waste in the interests in trust or restricted lands
of the decedent.
``(ii) If there are no heirs described in subparagraph (B)
(i), (ii), (iii), or (iv), the surviving spouse shall receive
all of the trust or restricted personal property of the
decedent and a life estate without regard to waste in the
trust or restricted lands.
``(iii) The remainder shall pass as set forth in
subparagraph (B).
``(B) Indian heirs.--Where there is no surviving spouse of
the decedent, or there is a remainder pursuant to
subparagraph (A), the estate or remainder of the decedent
shall, subject to subparagraph (A), pass as follows:
``(i) To the Indian children of the decedent (or if 1 or
more of those Indian children do not survive the decedent,
the Indian children of the deceased child of the decedent, by
right of representation, if such Indian children of the child
survive the decedent) in equal shares.
``(ii) If the property does not pass under clause (i), to
the surviving Indian great-grandchildren of the decedent in
equal shares.
``(iii) If the property does not pass under clause (i) or
(ii), to the surviving Indian brothers and sisters who are
full siblings of the decedent or who are half-siblings by
blood and not by marriage, in equal shares.
``(iv) If the property does not pass under clause (i),
(ii), or (iii), to the Indian parent or parents of the
decedent in equal shares.
``(v) If the property does not pass under clause (i), (ii),
(iii), or (iv), to the Indian tribe with jurisdiction over
the interests in trust or restricted lands;
except that notwithstanding clause (v), an Indian co-owner
(including the Indian tribe referred to in clause (v)) of a
parcel of trust or restricted land may acquire an interest
that would otherwise descend under that clause by paying into
the estate of the decedent, before the close of the probate
of the estate, the fair market value of the interest in the
land; if more than 1 Indian co-owner offers to pay for such
interest, the highest bidder shall acquire the interest.
``(C) No indian tribe.--If there is no Indian tribe with
jurisdiction over the interests in trust or restricted lands
that would otherwise descend under subparagraph (B)(v), then
such interests shall be divided equally among co-owners of
trust or restricted interests in the parcel; if there are no
such co-owners, then the Secretary shall accumulate and hold
such interests in trust or restricted status for the Indian
tribe or tribes from which the decedent descended.
``(3) Right of representation.--
``(A) In general.--Subject to subparagraph (B)--
``(i) the interests passing to children and grandchildren
of a decedent under paragraph (2) shall be divided into as
many equal shares as there are surviving children of the
decedent, deceased children who have died before the decedent
without issue, and deceased children who have died before the
decedent and have left grandchildren who survive the
decedent; and
``(ii) 1 share shall pass to each surviving child of the
decedent and 1 share shall pass equally divided among the
surviving children of a deceased child.
``(B) Exception for heirs of equal consanguinity.--
Notwithstanding subparagraph (A), when the persons entitled
to take under subparagraph (B)(i) of paragraph (2) are all in
the same degree of consanguinity to the decedent, they shall
take in equal shares.
``(4) Special rule relating to survival.--In the case of
intestate succession under this subsection, if an individual
fails to survive the decedent by at least 120 hours, as
established by clear and convincing evidence--
``(A) the individual shall be deemed to have predeceased
the decedent for the purpose of intestate succession; and
``(B) the heirs of the decedent shall be determined in
accordance with this section.
``(5) Status of inherited interests.--A trust or restricted
interest in land or personal property that descends under the
provisions of this subsection (not including any interest in
land or personal property passing to a surviving spouse under
paragraph (2)(A)) shall continue to have the same trust or
restricted status in the hands of the heir as such interest
had immediately prior to the decedent's death.''.
(c) Section 207(c) of the Indian Land Consolidation Act (25
U.S.C. 2206 (c)) is amended by striking all that follows the
heading, ``Joint Tenancy; Right of Survivorship'', and
inserting the following: ``If a testator devises interests in
the same parcel of trust or restricted lands to more than 1
person, in the absence of express language in the devise to
the contrary, the devise shall be presumed to create joint
tenancy with the right of survivorship in the interests
involved.''.
(d) Rule of Construction.--Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by adding at
the end the following:
``(h) Applicable Federal Law.--
``(1) In general.--Any references in subsections (a) and
(b) to applicable Federal law include--
``(A) Public Law 91-627 (84 Stat. 1874);
``(B) Public Law 92-377 (86 Stat. 530);
``(C) Public Law 92-443 (86 Stat. 744);
``(D) Public Law 96-274 (94 Stat. 537); and
``(E) Public Law 98-513 (98 Stat. 2411).
``(2) No effect on laws.--Nothing in this section amends or
otherwise affects the application of any law described in
paragraph (1), or any other Federal law that provides for the
devise and descent of any trust or restricted land located on
a specific Indian reservation or for the devise and descent
of the allotted lands of a specific tribe or specific tribes.
``(i) Rules of Interpretation.--In the absence of a
contrary intent, and except as otherwise provided under this
Act or a tribal probate code approved by the Secretary
pursuant to section 206, wills shall be construed as to trust
and restricted land and personal property in accordance with
the following rules:
``(1) Construction that will passes all property.--A will
shall be construed to apply to all trust and restricted land
and personal property which the testator owned at his death,
including any such land or property acquired after the
execution of his will.
``(2) Class gifts.--
``(A) Terms of relationship that do not differentiate
relationships by blood from those by affinity, such as
`uncles', `aunts', `nieces' or `nephews', are construed to
exclude relatives by affinity. Terms of relationship that do
not differentiate relationships by the half blood from those
by the whole blood, such as `brothers', `sisters', `nieces',
or `nephews', are construed to include both types of
relationships.
``(B) Meaning of `heirs' and `next of kin,' etc; time of
ascertaining class.--A devise of trust or restricted land or
trust funds to the testator's or another designated person's
`heirs', `next of kin', `relatives', or `family' shall mean
those persons, including the spouse, who would be entitled to
take under the provisions of this Act for nontestamentary
disposition. The class is to be ascertained as of the date of
the testator's death.
``(C) Time for ascertaining class.--In construing a devise
to a class other than a class described in subparagraph (B),
the class shall be ascertained as of the time the devise is
to take effect in enjoyment. The surviving issue of any
member of the class who is then dead shall take by right of
representation the share which their deceased ancestor would
have taken.
``(3) Meaning of `die without issue' and similar phrases.--
In any devise under this chapter, the words `die without
issue', `die without leaving issue', `have no issue', or
words of a similar import shall be construed to mean that an
individual had no lineal descendants in his lifetime or at
his death, and not that there will be no lineal descendants
at some future time.
``(4) Persons born out of wedlock.--In construing
provisions of this chapter relating to lapsed and void
devises, and in construing a devise to a person or persons
described by relationship to the testator or to
[[Page S12537]]
another, a person born out of wedlock shall be considered the
child of the natural mother and also of the natural father.
``(5) Lapsed and void devises and legacies; shares not in
residue.--Where a devise of property that is not part of the
residuary estate fails or becomes void because--
``(A) the beneficiary has predeceased the testator;
``(B) the devise has been revoked by the testator; or
``(C) the devise has been disclaimed by the beneficiary;
the property shall, if not otherwise expressly provided for
under this Act or a tribal probate code, pass under the
residuary clause, if any, contained in the will.
``(6) Lapsed and void devises and legacies; shares in
residue.--When a devise as described in paragraph (7) shall
be included in a residuary clause of the will and shall not
be available to the issue of the devisee, and if the
disposition shall not be otherwise expressly provided for by
a tribal probate code, it shall pass to the other residuary
devisees, if any, in proportion to their respective shares or
interests in the residue.
``(7) Family cemetery plot.--If a family cemetery plot
owned by the testator at his decease is not mentioned in the
decedent's will, the ownership of the plot shall descend to
his heirs as if he had died intestate.
``(8) After-born heirs.--A child in gestation at the time
of decedent's death will be treated as having survived the
decedent if the child lives at least 120 hours after its
birth.
``(9) Advancements of trust or restricted personal property
during lifetime; effect on distribution of estate.--
``(A) The trust or restricted personal property of a
decedent who dies intestate as to all or a portion of his or
her estate, given during the decedent's lifetime to an heir
of the decedent, shall be treated as an advancement against
the heir's inheritance, but only if the decedent declared in
a contemporaneous writing, or the heir acknowledged in
writing, that the gift is an advancement or is to be taken
into account in computing the division and distribution of
the decedent's intestate estate.
``(B) For the purposes of this section, trust or restricted
personal property advanced during the decedent's lifetime is
valued as of the time the heir came into possession or
enjoyment of the property or as of the time of the decedent's
death, whichever occurs first.
``(C) If the recipient of the property predeceases the
decedent, the property is not treated as an advancement or
taken into account in computing the division and distribution
of the decedent's intestate estate unless the decedent's
contemporaneous writing provides otherwise.
``(10) Heirs related to decedent through 2 lines; single
share.--A person who is related to the decedent through 2
lines of relationship is entitled to only a single share
based on the relationship that would entitle the person to
the larger share.
``(j) Heirship by Killing.--
``(1) `Heir by killing' defined.--As used in this
subsection, `heir by killing' means any person who
participates, either as a principal or as an accessory before
the fact, in the willful and unlawful killing of the
decedent.
``(2) No acquisition of property by killing.--Subject to
any applicable Federal law relating to the devise or descent
of trust or restricted property, no heir by killing shall in
any way acquire any interests in trust or restricted property
as the result of the death of the decedent, but such property
shall pass in accordance with this subsection.
``(3) Descent, distribution, and right of survivorship.--
The heir by killing shall be deemed to have predeceased the
decedent as to decedent's interests in trust or restricted
property which would have passed from the decedent or his
estate to the heir by killing--
``(A) under intestate succession under this chapter;
``(B) under a tribal probate code, unless otherwise
provided for;
``(C) as the surviving spouse;
``(D) by devise;
``(E) as a reversion or a vested remainder;
``(F) as a survivorship interest; and
``(G) as a contingent remainder or executory or other
future interest.
``(4) Joint tenants, joint owners, and joint obligees.--
``(A) Any trust or restricted land or personal property
held by only the heir by killing and the decedent as joint
tenants, joint owners, or joint obligees shall pass upon the
death of the decedent to his or her estate, as if the heir by
killing had predeceased the decedent.
``(B) As to trust or restricted property held jointly by 3
or more persons, including both the heir by killing and the
decedent, any income which would have accrued to the heir by
killing as a result of the death of the decedent shall pass
to the estate of the decedent as if the heir by killing had
predeceased the decedent and any surviving joint tenants.
``(C) Notwithstanding any other provision of this
subsection, the decedent's interest in trust or restricted
property that is held in a joint tenancy with the right of
survivorship shall be severed from the joint tenancy as
though the property held in the joint tenancy were to be
severed and distributed equally among the joint tenants and
the decedent's interest shall pass to his estate; the
remainder of the interests shall remain in joint tenancy with
right of survivorship among the surviving joint tenants.
``(5) Life estate for the life of another.--If the estate
is held by a third person whose possession expires upon the
death of the decedent, it shall remain in such person's hands
for the period of the life expectancy of the decedent.
``(6) Preadjudication rule.--
``(A) In general.--If a person has been charged, whether by
indictment, information, or otherwise by the United States, a
tribe, or any State, with voluntary manslaughter or homicide
in connection with a decedent's death, then any and all trust
or restricted land or personal property that would otherwise
pass to that person from the decedent's estate shall not pass
or be distributed by the Secretary until the charges have
been resolved in accordance with the provisions of this
paragraph.
``(B) Dismissal or withdrawal.--Upon dismissal or
withdrawal of the charge, or upon a verdict of not guilty,
such land and funds shall pass as if no charge had been filed
or made.
``(C) Conviction.--Upon conviction of such person, the
trust and restricted land and personal property in the estate
shall pass in accordance with this subsection.
``(7) Broad construction; policy of subsection.--This
subsection shall not be considered penal in nature, but shall
be construed broadly in order to effect the policy that no
person shall be allowed to profit by his own wrong, wherever
committed.
``(k) General Rules Governing Probate.--
``(1) Scope.--The provisions of this subsection shall apply
only to estates that are subject to probate under the
provisions of subsections (a) and (b).
``(2) Pretermitted spouses and children.--
``(A) Spouses.--
``(i) In general.--Except as provided in clause (ii), if
the surviving spouse of a testator married the testator after
the testator executed the will of the testator, the surviving
spouse shall receive the intestate share in trust or
restricted land that the spouse would have received if the
testator had died intestate.
``(ii) Exception.--Clause (i) shall not apply to an
interest in trust or restricted land where--
``(I) the will of a testator is executed before the date of
enactment of this subparagraph;
``(II)(aa) the spouse of a testator is a non-Indian; and
``(bb) the testator devised the interests in trust or
restricted land of the testator to 1 or more Indians;
``(III) it appears, based on an examination of the will or
other evidence, that the will was made in contemplation of
the marriage of the testator to the surviving spouse;
``(IV) the will expresses the intention that the will is to
be effective notwithstanding any subsequent marriage; or
``(V)(aa) the testator provided for the spouse by a
transfer of funds or property outside the will; and
``(bb) an intent that the transfer be in lieu of a
testamentary provision is demonstrated by statements of the
testator or through a reasonable inference based on the
amount of the transfer or other evidence.
``(iii) Spouses married at the time of the will.--Should
the surviving spouse of the testator be omitted from the will
of the testator, the surviving spouse shall be treated, for
purposes of trust or restricted land or personal property in
the testator's estate, as though there was no will under the
provisions of section 207(b)(2)(A) if--
``(I) the testator and surviving spouse were continuously
married without legal separation for the 10-year period
preceding the decedent's death;
``(II) the testator and surviving spouse have a surviving
child who is the child of the testator;
``(III) the surviving spouse has made substantial payments
on or improvements to the trust or restricted land in such
estate; or
``(IV) the surviving spouse is under a binding obligation
to continue making loan payments for the trust or restricted
land for a substantial period of time;
except that if there is evidence that the testator adequately
provided for the surviving spouse and any minor children by a
transfer of funds or property outside of the will, this
clause shall not apply.
``(iv) Defined terms.--The terms `substantial payments or
improvements' and `substantial period of time' as used in
subparagraph (A)(iii) (III) and (IV) shall have the meanings
given to them in the regulations adopted by the Secretary
under the provisions of this Act.
``(B) Children.--
``(i) In general.--If a testator executed the will of the
testator before the birth or adoption of 1 or more children
of the testator, and the omission of the children from the
will is a product of inadvertence rather than an intentional
omission, the children shall share in the intestate interests
of the decedent in trust or restricted land as if the
decedent had died intestate.
``(ii) Adopted heirs.--Any person recognized as an heir by
virtue of adoption under the Act of July 8, 1940 (25 U.S.C.
372a), shall be treated as the child of a decedent under this
subsection.
``(iii) Adopted-out children.--
``(I) In general.--For purposes of this Act, an adopted
person shall not be considered the child or issue of his
natural parents, except in distributing the estate of a
natural
[[Page S12538]]
kin, other than the natural parent, who has maintained a
family relationship with the adopted person. If a natural
parent shall have married the adopting parent, the adopted
person for purposes of inheritance by, from and through him
shall also be considered the issue of such natural parent.
``(II) Eligible heir pursuant to other federal law or
tribal law.--Notwithstanding the provisions of subparagraph
(B)(iii)(I), other Federal laws and laws of the Indian tribe
with jurisdiction over the trust or restricted land may
otherwise define the inheritance rights of adopted-out
children.
``(3) Divorce.--
``(A) Surviving spouse.--
``(i) In general.--An individual who is divorced from a
decedent, or whose marriage to the decedent has been
annulled, shall not be considered to be a surviving spouse
unless, by virtue of a subsequent marriage, the individual is
married to the decedent at the time of death of the decedent.
``(ii) Separation.--A decree of separation that does not
dissolve a marriage, and terminate the status of husband and
wife, shall not be considered a divorce for the purpose of
this subsection.
``(iii) No effect on adjudications.--Nothing in clause (i)
prevents an entity responsible for adjudicating an interest
in trust or restricted land from giving effect to a property
right settlement if 1 of the parties to the settlement dies
before the issuance of a final decree dissolving the marriage
of the parties to the property settlement.
``(B) Effect of subsequent divorce on a will or devise.--
``(i) In general.--If, after executing a will, a testator
is divorced or the marriage of the testator is annulled, as
of the effective date of the divorce or annulment, any
disposition of interests in trust or restricted land made by
the will to the former spouse of the testator shall be
considered to be revoked unless the will expressly provides
otherwise.
``(ii) Property.--Property that is prevented from passing
to a former spouse of a decedent under clause (i) shall pass
as if the former spouse failed to survive the decedent.
``(iii) Provisions of wills.--Any provision of a will that
is considered to be revoked solely by operation of this
subparagraph shall be revived by the remarriage of a testator
to the former spouse of the testator.
``(4) Notice.--
``(A) In general.--To the maximum extent practicable, the
Secretary shall notify each owner of trust and restricted
land of the provisions of this Act.
``(B) Combined notices.--The notice under subparagraph (A)
may, at the discretion of the Secretary, be provided with the
notice required under section 207(g).''.
SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN LANDS.
Section 205 of the Indian Land Consolidation Act (25 U.S.C.
2204) is amended by adding at the end the following:
``(c) Partition of Highly Fractionated Indian Lands.--
``(1) Applicability.--This subsection shall be applicable
only to parcels of land (including surface and subsurface
interests, except with respect to a subsurface interest that
has been severed from the surface interest, in which case
this subsection shall apply only to the surface interest)
which the Secretary has determined, pursuant to paragraph
(2)(B), to be parcels of highly fractionated Indian land.
``(2) Requirements.--Subject to section 223 of this Act,
but notwithstanding any other provision of law, the Secretary
shall ensure that each partition action meets the following
requirements:
``(A) Request.--The Secretary shall commence a process for
partitioning a parcel of land by sale in accordance with the
provisions of this subsection upon receipt of an application
by--
``(i) the Indian tribe with jurisdiction over the subject
land that owns an undivided interest in the parcel of land;
or
``(ii) any person owning an undivided trust or restricted
interest in the parcel of land.
``(B) Determination.--Upon receipt of an application
pursuant to subparagraph (A), the Secretary shall determine
whether the subject parcel meets the requirements set forth
in section 202(6) (25 U.S.C. 2201(6)) to be classified as a
parcel of highly fractionated Indian land.
``(C) Consent requirements.--A parcel of land may be
partitioned under this subsection only with the written
consent of--
``(i) the Indian tribe with jurisdiction over the subject
land if such Indian tribe owns an undivided interest in the
parcel;
``(ii) any owner who, for the 3-year period immediately
preceding the date on which the Secretary receives the
application, has--
``(I) continuously maintained a bona fide residence on the
parcel; or
``(II) continuously operated a bona fide farm, ranch, or
other business on the parcel; and
``(iii) the owners of at least 50 percent of the undivided
interests in the parcel if, based on the final appraisal
prepared pursuant to subparagraph (F), the Secretary
determines that any person's undivided trust or restricted
interest in the parcel has a value in excess of $1,000,
except that the Secretary may consent on behalf of
undetermined heirs, minors, and legal incompetents having no
legal guardian, and missing owners or owners whose
whereabouts are unknown but only after a search for such
owners has been completed in accordance with the provisions
of this subsection.
``(D) Preliminary appraisal.--After the Secretary has
determined that the subject parcel is a parcel of highly
fractionated Indian land pursuant to subparagraph (B), the
Secretary shall cause a preliminary appraisal of the subject
parcel to be made.
``(E) Notice to owners on completion of preliminary
appraisal.--Upon completion of the preliminary appraisal, the
Secretary shall give written notice of the requested
partition and preliminary appraisal to all owners of
undivided interests in the parcel, in accordance with the
following requirements:
``(i) Contents of notice.--The notice required by this
subsection shall state--
``(I) that a proceeding to partition the parcel of land by
sale has been commenced;
``(II) the legal description of the subject parcel;
``(III) the owner's ownership interest in the subject
parcel;
``(IV) the results of the preliminary appraisal;
``(V) the owner's right to request a copy of the
preliminary appraisal;
``(VI) the owner's right to comment on the proposed
partition and the preliminary appraisal;
``(VII) the date by which the owner's comments must be
received, which shall not be less than 60 days after the date
that the notice is mailed or published under paragraph (2);
and
``(VIII) the address for requesting copies of the
preliminary appraisal and for submitting written comments.
``(ii) Manner of service.--
``(I) Service by mail.--The Secretary shall attempt to
provide all owners of interests in the subject parcel with
actual notice of the partition proceeding by mailing a copy
of the written notice described in clause (i) by first class
mail to each such owner at the owner's last known address. In
the event the written notice to an owner is returned
undelivered, the Secretary shall, in accordance with
regulations adopted to implement the provisions of this
section, attempt to obtain a current address for such owner
by inquiring with--
``(aa) the owner's relatives, if any are known;
``(bb) the Indian tribe of which the owner is a member; and
``(cc) the Indian tribe with jurisdiction over the subject
parcel.
``(II) Service by publication.--In the event that the
Secretary is unable to serve the notice by mail pursuant to
subclause (II), the notice shall be served by publishing the
notice 2 times in a newspaper of general circulation in the
county or counties where the subject parcel of land is
located.
``(F) Final appraisal.--After reviewing and considering
comments or information submitted by any owner of an interest
in the parcel in response to the notice required under
subparagraph (E), the Secretary may--
``(i) modify the preliminary appraisal and, as modified,
determine it to be the final appraisal for the parcel; or
``(ii) determine that preliminary appraisal should be the
final appraisal for the parcel, without modifications.
``(G) Notice to owners on determination of final
appraisal.--Upon making the determination under subparagraph
(F) the Secretary shall provide to each owner of the parcel
of land and the Indian tribe with jurisdiction over the
subject land, written notice served in accordance with
subparagraph (E)(ii) stating--
``(i) the results of the final appraisal;
``(ii) the owner's right to review a copy of the appraisal
upon request; and
``(iii) that the land will be sold in accordance with
subparagraph (G) for not less than the final appraised value
subject to the consent requirements under paragraph (2)(C).
``(H) Sale.--Subject to the requirements of paragraph
(2)(C), the Secretary shall--
``(i) provide every owner of the parcel of land and the
Indian tribe with jurisdiction over the subject land with
notice that--
``(I) the decision to partition by sale is final; and
``(II) each owner has the right to appeal the determination
of the Secretary to partition the parcel of land by sale,
including the right to appeal the final appraisal;
``(ii) after providing public notice of the sale pursuant
to regulations adopted by the Secretary to implement this
subsection, offer to sell the land by competitive bid for not
less than the final appraised value to the highest bidder
from among the following eligible bidders:
``(I) any owner of a trust or restricted interest in the
parcel being sold;
``(II) the Indian tribe, if any, with jurisdiction over the
parcel being sold; and
``(III) any member of the Indian tribe described in
subclause (II); and
``(iii) if no bidder described in clause (ii) presents a
bid that equals or exceeds the appraised value, provide
notice to the owners of the parcel of land and terminate the
partition process.
``(I) Decision not to sell.--If the required owners do not
consent to the partition by sale of the parcel of land, in
accordance with paragraph (2)(C), by a date established by
the Secretary, the Secretary shall provide each Indian tribe
with jurisdiction over the subject land and each owner notice
of that fact.
``(3) Enforcement.--
``(A) In general.--If a partition is approved under this
subsection and an owner of an interest in the parcel of land
refuses to surrender possession in accordance with the
partition decision, or refuses to execute any
[[Page S12539]]
conveyance necessary to implement the partition, then any
affected owner or the United States may--
``(i) commence a civil action in the United States district
court for the district in which the parcel of land is
located; and
``(ii) request that the court issue an appropriate order
for the partition of the land in kind or by sale.
``(B) Federal role.--With respect to any civil action
brought under subparagraph (A)--
``(i) the United States--
``(I) shall receive notice of the civil action; and
``(II) may be a party to the civil action; and
``(ii) the civil action shall not be dismissed, and no
relief requested shall be denied, on the ground that the
civil action is 1 against the United States or that the
United States is an indispensable party.
``(4) Regulations.--The Secretary is authorized to adopt
such regulations as may be necessary to implement the
provisions of this subsection.''.
SEC. 5. OWNER-MANAGED INTERESTS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)
is amended by adding at the end the following:
``SEC. 221. OWNER-MANAGED INTERESTS.
``(a) Purpose.--The purpose of this section is to provide a
means for the co-owners of trust or restricted interests in a
parcel of land to enter into surface leases of such parcel
without approval of the Secretary.
``(b) Mineral Interests.--Nothing in this section shall be
construed to limit or otherwise affect the application of any
Federal law requiring the Secretary to approve mineral leases
or other agreements for the development of the mineral
interest in trust or restricted land.
``(c) Owner Management.--
``(1) In general.--Notwithstanding any provision of Federal
law requiring the Secretary to approve individual Indian
leases or mortgages of individual Indian trust or restricted
land, where the owners of all of the undivided trust or
restricted interests in a parcel of land have submitted
applications to the Secretary pursuant to subsection (a), and
the Secretary has approved such applications under subsection
(d), such owners may, without further approval by the
Secretary, do either of the following with respect to their
interest in such parcel:
``(A) Enter into a lease of the parcel for any purpose
authorized by section 1 of the Act of August 9, 1955 (25
U.S.C. 415(a)), for an initial term not to exceed 25 years.
``(B) Renew any lease described in paragraph (1) for 1
renewal term not to exceed 25 years.
``(2) Rule of construction.--No such lease or renewal of a
lease shall be effective until the owners of all undivided
trust or restricted interests in the parcel have executed
such lease or renewal.
``(d) Approval of Applications for Owner Management.--
``(1) In general.--Subject to the provisions of paragraph
(2), the Secretary shall approve an application for owner
management submitted by a qualified applicant pursuant to
this section unless the Secretary has reason to believe that
the applicant is submitting the application as the result of
fraud or undue influence.
``(2) Commencement of owner-management status.--
Notwithstanding the approval of 1 or more applications
pursuant to paragraph (1), no interest in a parcel of trust
or restricted land shall have owner-management status until
applications for all of the trust or restricted interests in
such parcel have been submitted and approved by the Secretary
pursuant to this section and in accordance with regulations
adopted pursuant to subsection (l).
``(e) Validity of Leases.--A lease of trust or restricted
interests in a parcel of land that is owner-managed under
this section that violates any requirement or limitation set
forth in subsection (c) shall be null and void and
unenforceable against the owners of such interests, or
against the land, the interest or the United States.
``(f) Lease Revenues.--The Secretary shall not be
responsible for the collection of, or accounting for, any
lease revenues accruing to any interests subject to this
section while such interest is in owner-management status
under the provisions of this section.
``(g) Jurisdiction.--
``(1) Jurisdiction unaffected by status.--The Indian tribe
with jurisdiction over an interest in trust or restricted
land that becomes owner-managed in accordance with this
section shall continue to have jurisdiction over the interest
in trust or restricted land to the same extent and in all
respects the tribe had prior to the interest acquiring owner
managed status.
``(2) Persons using land.--Any person holding, leasing, or
otherwise using such interest in land shall be considered to
consent to the jurisdiction of the Indian tribe with
jurisdiction over the interest, including such tribe's laws
and regulations, if any, relating to the use, and any effects
associated with the use, of the interest.
``(h) Continuation of Owner-Managed Status; Revocation.--
``(1) In general.--Subject to the provisions of paragraph
(2), after the applications of the owners of all of the trust
or restricted interests in a parcel of land have been
approved by the Secretary pursuant to subsection (d), each
such interest shall continue in owner-managed status under
this section notwithstanding any subsequent conveyance of the
interest in trust or restricted status to another person or
the subsequent descent of the interest in trust or restricted
status by testate or intestate succession to 1 or more heirs.
``(2) Revocation.--Owner-managed status of an interest may
be revoked upon written request of owners (including the
parents or legal guardians of minors or incompetent owners)
of all trust or restricted interests in the parcel, submitted
to the Secretary in accordance with regulations adopted under
subsection (l). The revocation shall become effective as of
the date on which the last of all such requests have been
delivered to the Secretary.
``(3) Effect of revocation.--Revocation of owner-managed
status under paragraph (2) shall not affect the validity of
any lease made in accordance with the provisions of this
section prior to the effective date of the revocation,
provided that, after such revocation becomes effective, the
Secretary shall be responsible for the collection of, and
accounting for, all future lease revenues accruing to the
trust or restricted interests in the parcel from and after
such effective date.
``(i) Defined Terms.--
``(1) For purposes of subsection (d)(1), the term
`qualified applicant' means--
``(A) a person over the age of 18 who owns a trust or
restricted interest in a parcel of land; and
``(B) the parent or legal guardian of a minor or
incompetent person who owns a trust or restricted interest in
a parcel of land.
``(2) For purposes of this section, the term `owner-managed
status' means, with respect to a trust or restricted
interest, that the interest--
``(A) is a trust or restricted interest in a parcel of land
for which applications covering all trust or restricted
interests in such parcel have been submitted to and approved
by the Secretary pursuant to subsection (d);
``(B) may be leased without approval of the Secretary
pursuant to, and in a manner that is consistent with the
requirements of, this section; and
``(C) no revocation has occurred under subsection (h)(2).
``(j) Secretarial Approval of Other Transactions.--Except
with respect to the specific lease transactions described in
paragraphs (1) and (2) of subsection (c), interests held in
owner-managed status under the provisions of this section
shall continue to be subject to all Federal laws requiring
the Secretary to approve transactions involving trust or
restricted land that would otherwise apply to such interests.
``(k) Effect of Section.--Subject to subsections (c), (f),
and (h), nothing in this section limits or otherwise affects
any authority or responsibility of the Secretary with respect
to an interest in trust or restricted land.
``(l) Regulations.--The Secretary shall promulgate such
regulations as are necessary to carry out this section.''.
SEC. 6. ADDITIONAL AMENDMENTS.
(a) In General.--The Indian Land Consolidation Act (25
U.S.C. 2201 et seq.) is amended--
(1) in the second sentence of section 205(a) (25 U.S.C.
2204(a)), by striking ``over 50 per centum of the undivided
interests'' and inserting ``undivided interests equal to at
least 50 percent of the undivided interest'';
``(2) in section 205 (25 U.S.C. 2204), by adding subsection
(c) as follows:
``(c) Purchase Option at Probate.--
``(1) In general.--Subject to section 207(b)(2)(A) of this
Act (25 U.S.C. 2206(b)(2)(A)), interests in a parcel of trust
or restricted land in the decedent's estate may be purchased
at probate in accordance with the provisions of this
subsection.
``(2) Sale of interest at minimum fair market value.--
Subject to paragraph (3), the Secretary is authorized to sell
trust or restricted interests subject to this subsection at
no less than fair market value to the highest bidder from
among the following eligible bidders:
``(A) The heirs taking by intestate succession or the
devisees listed in section 207(a)(1)(A).
``(B) All persons who own undivided trust or restricted
interests in the same parcel of land involved in the probate
proceeding.
``(C) The Indian tribe with jurisdiction over the interest,
or the Secretary on behalf of such Indian tribe.
``(3) Request for auction.--No auction and sale of an
interest in probate shall occur under this subsection
unless--
``(A) except as provided in paragraph (6), the heirs or
devises of such interest consent to the sale; and
``(B) a person or the Indian tribe eligible to bid on the
interest under paragraph (2) submits a request for the
auction prior to the distribution of the interest to heirs or
devisees of the decedent and in accordance with any
regulations of the Secretary.
``(4) Appraisal and notice.--Prior to the sale of an
interest pursuant to this subsection, the Secretary shall--
(A) appraise the interest; and
(B) publish notice of the time and place of the auction (or
the time and place for submitting sealed bids), a
description, and the appraised value, of the interest to be
sold.
``(5) Rights of surviving spouse.--Nothing in this
subsection shall be construed to diminish or otherwise affect
the rights of a surviving spouse under section 207(b)(2)(A).
[[Page S12540]]
``(6) Highly fractionated indian lands.--Notwithstanding
paragraph (3)(A), the consent of an heir shall not be
required for the auction and sale of an interest at probate
under this subsection if--
``(A) the interest is passing by intestate succession; and
``(B) prior to the auction the Secretary determines that
the interest involved is an interest in a parcel of highly
fractionated Indian land.
``(7) Regulations.--The Secretary shall promulgate
regulations to implement the provisions of this
subsection.'';
(3) in section 206 (25 U.S.C. 2205)--
(A) in subsection (a), by striking paragraph (3) and
inserting the following:
``(3) Tribal probate codes.--Except as provided in any
applicable Federal law, the Secretary shall not approve a
tribal probate code, or an amendment to such a code, that
prohibits the devise of an interest in trust or restricted
land by--
``(A) an Indian lineal descendant of the original allottee;
or
``(B) an Indian who is not a member of the Indian tribe
with jurisdiction over such an interest;
unless the code provides for--
``(i) the renouncing of interests to eligible devisees in
accordance with the code;
``(ii) the opportunity for a devisee who is the spouse or
lineal descendant of a testator to reserve a life estate
without regard to waste; and
``(iii) payment of fair market value in the manner
prescribed under subsection (c)(2).''; and
(B) in subsection (c)--
(i) in paragraph (1)--
(I) by striking the paragraph heading and inserting the
following:
``(1) Authority.--
``(A) In general.--'';
(II) in the first sentence of subparagraph (A) (as
redesignated by clause (i)), by striking ``section
207(a)(6)(A) of this title'' and inserting ``section
207(a)(2)(A)(ii) of this title''; and
(III) by striking the last sentence and inserting the
following:
``(B) Transfer.--The Secretary shall transfer payments
received under subparagraph (A) to any person or persons who
would have received an interest in land if the interest had
not been acquired by the Indian tribe in accordance with this
paragraph.''; and
(ii) in paragraph (2)--
(I) in subparagraph (A)--
(aa) by striking the subparagraph heading and all that
follows through ``Paragraph (1) shall not apply'' and
inserting the following:
``(A) Inapplicability to certain interests.--
``(i) In general.--Paragraph (1) shall not apply'';
(bb) in clause (i) (as redesignated by item (aa)), by
striking ``if, while'' and inserting the following: ``if--
``(I) while'';
(cc) by striking the period at the end and inserting ``;
or''; and
(dd) by adding at the end the following:
``(II)--
``(aa) the interest is part of a family farm that is
devised to a member of the family of the decedent; and
``(bb) the devisee agrees that the Indian tribe with
jurisdiction over the land will have the opportunity to
acquire the interest for fair market value if the interest is
offered for sale to an entity that is not a member of the
family of the owner of the land.
``(ii) Recording of interest.--On request by an Indian
tribe described in clause (i)(II)(bb), a restriction relating
to the acquisition by the Indian tribe of an interest in a
family farm involved shall be recorded as part of the deed
relating to the interest involved.
``(iii) Mortgage and foreclosure.--Nothing in clause
(i)(II) prevents or limits the ability of an owner of land to
which that clause applies to mortgage the land or limit the
right of the entity holding such a mortgage to foreclose or
otherwise enforce such a mortgage agreement in accordance
with applicable law.
``(iv) Definition of `member of the family'.--In this
paragraph, the term `member of the family', with respect to a
decedent or landowner, means--
``(I) a lineal descendant of a decedent or landowner;
``(II) a lineal descendant of the grandparent of a decedent
or landowner;
``(III) the spouse of a descendant or landowner described
in subclause (I) or (II); and
``(IV) the spouse of a decedent or landowner.'';
(4) in subparagraph (B), by striking ``subparagraph (A)''
and all that follows through ``207(a)(6)(B) of this title''
and inserting ``paragraph (1)'';
(5) in section 207 (25 U.S.C. 2206), subsection (g)(5), by
striking ``this section'' and inserting ``subsections (a) and
(b)'';
(6) in section 213 (25 U.S.C. 2212)--
(A) by striking the section heading and inserting the
following:
``SEC. 2212. FRACTIONAL INTEREST ACQUISITION PROGRAM.'';
(B) in subsection (a)--
(i) by striking ``(2) Authority of Secretary.--'' and all
that follows through ``the Secretary shall submit'' and
inserting the following:
``(2) Authority of secretary.--The Secretary shall
submit''; and
(ii) by striking ``whether the program to acquire
fractional interests should be extended or altered to make
resources'' and inserting ``how the fractional interest
acquisition program should be enhanced to increase the
resources made'';
(C) in subsection (b), by striking paragraph (4) and
inserting the following:
``(4) shall minimize the administrative costs associated
with the land acquisition program through the use of policies
and procedures designed to accommodate the voluntary sale of
interests under the pilot program under this section,
notwithstanding the existence of any otherwise applicable
policy, procedure, or regulation, through the elimination of
duplicate--
``(A) conveyance documents;
``(B) administrative proceedings; and
``(C) transactions.''.
(D) in subsection (c)--
(i) in paragraph (1)--
(I) in subparagraph (A), by striking ``at least 5 percent
of the'' and inserting in its place ``an'';
(II) in subparagraph (A), by inserting ``in such parcel''
following ``the Secretary shall convey an interest'';
(III) in subparagraph (A), by striking ``landowner upon
payment'' and all that follows and inserting the following:
``landowner--
``(i) on payment by the Indian landowner of the amount paid
for the interest by the Secretary; or
``(ii) if--
``(I) the Indian referred to in this subparagraph provides
assurances that the purchase price will be paid by pledging
revenue from any source, including trust resources; and
``(II) the Secretary determines that the purchase price
will be paid in a timely and efficient manner.''; and
(IV) in subparagraph (B), by inserting before the period at
the end the following: ``unless the interest is subject to a
foreclosure of a mortgage in accordance with the Act of March
29, 1956 (25 U.S.C. 483a)''; and
(ii) in paragraph (3), by striking ``10 percent or more of
the undivided interests'' and inserting ``an undivided
interest'';
(7) in section 214 (25 U.S.C. 2213), by striking subsection
(b) and inserting the following:
``(b) Application of Revenue From Acquired Interests to
Land Consolidation Program.--
``(1) In general.--The Secretary shall have a lien on any
revenue accruing to an interest described in subsection (a)
until the Secretary provides for the removal of the lien
under paragraph (3), (4), or (5).
``(2) Requirements.--
``(A) In general.--Until the Secretary removes a lien from
an interest in land under paragraph (1)--
``(i) any lease, resource sale contract, right-of-way, or
other document evidencing a transaction affecting the
interest shall contain a clause providing that all revenue
derived from the interest shall be paid to the Secretary; and
``(ii) any revenue derived from any interest acquired by
the Secretary in accordance with section 213 shall be
deposited in the fund created under section 216.
``(B) Approval of transactions.--Notwithstanding section 16
of the Act of June 18, 1934 (commonly known as the `Indian
Reorganization Act') (25 U.S.C. 476), or any other provision
of law, until the Secretary removes a lien from an interest
in land under paragraph (1), the Secretary may approve a
transaction covered under this section on behalf of an Indian
tribe.
``(3) Removal of liens after findings.--The Secretary may
remove a lien referred to in paragraph (1) if the Secretary
makes a finding that--
``(A) the costs of administering the interest from which
revenue accrues under the lien will equal or exceed the
projected revenues for the parcel of land involved;
``(B) in the discretion of the Secretary, it will take an
unreasonable period of time for the parcel of land to
generate revenue that equals the purchase price paid for the
interest; or
``(C) a subsequent decrease in the value of land or
commodities associated with the parcel of land make it likely
that the interest will be unable to generate revenue that
equals the purchase price paid for the interest in a
reasonable time.
``(4) Removal of liens upon payment into the acquisition
fund.--The Secretary shall remove a lien referred to in
paragraph (1) upon payment of an amount equal to the purchase
price of that interest in land into the Acquisition Fund
created under section 2215 of this title, except where the
tribe with jurisdiction over such interest in land authorizes
the Secretary to continue the lien in order to generate
additional acquisition funds.
``(5) Other removal of liens.--In accordance with
regulations to be promulgated by the Secretary, and in
consultation with tribal governments and other entities
described in section 213(b)(3), the Secretary shall
periodically remove liens referred to in paragraph (1) from
interests in land acquired by the Secretary.'';
(8) in section 216 (25 U.S.C. 2215)--
(A) in subsection (a), by striking paragraph (2) and
inserting the following:
``(2) collect all revenues received from the lease, permit,
or sale of resources from interests acquired under section
213 or paid by Indian landowners under section 213.''; and
(B) in subsection (b)--
(i) in paragraph (1)--
[[Page S12541]]
(I) in the matter preceding subparagraph (A), by striking
``Subject to paragraph (2), all'' and inserting ``All'';
(II) in subparagraph (A), by striking ``and'' at the end;
(III) in subparagraph (B), by striking the period at the
end and inserting ``; and''; and
(IV) by adding at the end the following:
``(C) be used to acquire undivided interests on the
reservation from which the income was derived.''; and
(ii) by striking paragraph (2) and inserting the following:
``(2) Use of funds.--The Secretary may use the revenue
deposited in the Acquisition Fund under paragraph (1) to
acquire some or all of the undivided interests in any parcels
of land in accordance with section 205.'';
(9) in section 217 (25 U.S.C. 2216)--
(A) in subsection (b)(1) by striking subparagraph (B) and
inserting a new subparagraph (B) as follows--
``(B) Waiver of requirement.--The requirement for an
estimate of value under subparagraph (A) may be waived in
writing by an owner of an interest in trust or restricted
land either selling, exchanging, or conveying by gift deed
for no or nominal consideration such interest--
``(i) to an Indian person who is the owner's spouse,
brother, sister, lineal ancestor, lineal descendant, or
collateral heir; or
``(ii) to an Indian co-owner or to a tribe with
jurisdiction over the subject parcel of land, where the
grantor owns a fractional interest that represents 5 percent
or less of the parcel.''.
(B) in subsection (e), by striking the matter preceding
paragraph (1), and inserting ``Notwithstanding any other
provision of law, the names and mailing addresses of the
owners of any interest in trust or restricted lands, and
information on the location of the parcel and the percentage
of undivided interest owned by each individual shall, upon
written request, be made available to--'';
(C) in subsection (e)(1), by striking ``Indian'';
(D) in subsection (e)(3), by striking ``prospective
applicants for the leasing, use, or consolidation of'' and
insert ``any person that is leasing, using, or consolidating,
or is applying to lease, use, or consolidate,''; and
(E) by striking subsection (f) and inserting the following:
``(f) Purchase of Land by Indian Tribe.--
``(1) In general.--Except as provided in paragraph (2),
before the Secretary approves an application to terminate the
trust status or remove the restrictions on alienation from a
parcel of trust or restricted land, the Indian tribe with
jurisdiction over the parcel shall have the opportunity--
``(A) to match any offer contained in the application; or
``(B) in a case in which there is no purchase price
offered, to acquire the interest in the parcel by paying the
fair market value of the interest.
``(2) Exception for family farms.--
``(A) In general.--Paragraph (1) shall not apply to a
parcel of trust or restricted land that is part of a family
farm that is conveyed to a member of the family of a
landowner (as defined in section 206(c)(2)(A)(iv)) if the
conveyance requires that in the event that the interest is
offered for sale to an entity that is not a member of the
family of the landowner, the Indian tribe with jurisdiction
over the land shall be afforded the opportunity to purchase
the interest pursuant to paragraph (1).
``(B) Applicability of other provision.--Section
206(c)(2)(A) shall apply with respect to the recording and
mortgaging of any trust or restricted land referred to in
subparagraph (A).''; and
(10) in section 219(b)(1)(A) (25 U.S.C. 2218(b)(1)(A)), by
striking ``100'' and inserting ``90''.
(b) Definitions.--Section 202 of the Indian Land
Consolidation Act (25 U.S.C. 2201) is amended--
(1) by striking paragraph (2) and inserting the following:
``(2) `Indian' means--
``(A) any person who is a member of any Indian tribe, is
eligible to become a member of any Indian tribe, or is an
owner (as of the date of enactment of the American Indian
Probate Reform Act of 2003) of an interest in trust or
restricted land;
``(B) any person meeting the definition of Indian under the
Indian Reorganization Act (25 U.S.C. 479) and the regulations
promulgated thereunder;
``(C) any person not included in subparagraph (A) or (B)
who is a lineal descendant within 3 degrees of a person
described in subparagraph (A);
``(D) an owner of a trust or restricted interest in a
parcel of land for purposes of inheriting another trust or
restricted interest in such parcel; and
``(E) with respect to the ownership, devise, or descent of
trust or restricted land in the State of California, any
person who meets the definition of `Indians of California'
contained in the first section of the Act of May 18, 1928 (25
U.S.C. 651), until otherwise provided by Congress in
accordance with section 809(b) of the Indian Health Care
Improvement Act (25 U.S.C. 1679)(b)).''; and
(2) by adding at the end the following:
``(6) `Parcel of highly fractionated Indian land' means a
parcel of land that the Secretary, pursuant to authority
under a provision of this Act, determines to have at the time
of the determination--
``(A)(i) 100 or more but less than 200 co-owners of
undivided trust or restricted interests; and
``(ii) no undivided trust or restricted interest owned by
any 1 person which represents more than 2 percent of the
total undivided ownership of the parcel; or
``(B)(i) 200 or more but less than 350 co-owners of
undivided trust or restricted interests; and
``(ii) no undivided trust or restricted interest owned by
any 1 person which represents more than 5 percent of the
total undivided ownership of the parcel; or
``(C) 350 or more co-owners of undivided trust or
restricted interests.
``(7) `Person' means a natural person.''.
(c) Issuance of Patents.--Section 5 of the Act of February
8, 1887 (25 U.S.C. 348), is amended by striking the second
proviso and inserting the following: `Provided, That the
rules of intestate succession under the Indian Land
Consolidation Act (25 U.S.C. 2201 et seq.) (including a
tribal probate code approved under that Act or regulations
promulgated under that Act) shall apply to that land for
which patents have been executed and delivered:''.
(d) Transfers of Restricted Indian Land.--Section 4 of the
Act of June 18, 1934 (25 U.S.C. 464), is amended in the first
proviso by--
(1) striking ``, in accordance with'' and all that follows
through ``or in which the subject matter of the corporation
is located,'';
(2) striking ``, except as provided by the Indian Land
Consolidation Act'' and all that follows through the colon;
and
(3) inserting ``in accordance with the Indian Land
Consolidation Act (25 U.S.C. 2201 et seq.) (including a
tribal probate code approved under that Act or regulations
promulgated under that Act):''.
(e) Estate Planning.--
(1) Conduct of activities.--Section 207(f)(1) of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by
striking paragraph (1) and inserting the following--
``(1) In general.--
``(A) The activities conducted under this subsection shall
be conducted in accordance with any applicable--
``(i) tribal probate code; or
``(ii) tribal land consolidation plan.
``(B) The Secretary shall provide estate planning
assistance in accordance with this subsection, to the extent
amounts are appropriated for such purpose.''.
(2) Requirements.--Section 207(f) of the Indian Land
Consolidation Act (25 U.S.C. 2206(f)) is amended by striking
``and'' at the end of subparagraph (A), redesignating
subparagraph (B) as subparagraph (D), and adding the
following--
``(B) dramatically increase the use of wills and other
methods of devise among Indian landowners;
``(C) substantially reduce the quantity and complexity of
Indian estates that pass intestate through the probate
process, while protecting the rights and interests of Indian
landowners; and''; and
(3) by striking ``(3) Contracts.--'' and inserting the
following--
``(3) Indian civil legal assistance grants.--In carrying
out this section, the Secretary shall award grants to
nonprofit entities, as defined under section 501(c)(3) of the
Internal Revenue Code of 1986, which provide legal assistance
services for Indian tribes, individual owners of interests in
trust or restricted lands, or Indian organizations pursuant
to Federal poverty guidelines which submit an application to
the Secretary, in such form and manner as the Secretary may
prescribe, for the provision of civil legal assistance to
such Indian tribes, individual owners, and Indian
organizations for the development of tribal probate codes,
for estate planning services or for other purposes consistent
with the services they provide to Indians and Indian
tribes.''; and
(4) by adding at the end of section 207 (25 U.S.C. 2206)
the following:
``(k) Notification to Landowners.--
``(1) In general.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall provide to each
Indian landowner a report that lists, with respect to each
tract of trust or restricted land in which the Indian
landowner has an interest--
``(A) the location of the tract of land involved;
``(B) the identity of each other co-owner of interests in
the parcel of land; and
``(C) the percentage of ownership of each owner of an
interest in the tract.
``(2) Statutory construction.--Nothing in this subsection
shall preclude any individual Indian from obtaining from the
Secretary, upon the request of that individual, any
information specified in paragraph (1) before the expiration
of the 2-year period specified in paragraph (1).
``(3) Requirements for notification.--Each notification
made under paragraph (1) shall include information concerning
estate planning and land consolidation options under the
provisions of this Act and other applicable Federal law,
including information concerning--
``(A) the preparation and execution of wills;
``(B) negotiated sales;
``(C) gift deeds;
``(D) exchanges; and
``(E) life estates without regard to waste.
``(4) Prohibition.--No individual Indian may be denied
access to information relating to land in which that
individual has an interest described in this section on the
basis of section 552a of title 5, United States Code
(commonly referred to as the `Privacy Act').
[[Page S12542]]
``(l) Private and Family Trusts Pilot Project.--
``(1) Development pilot project.--
``(A) The Secretary shall consult with tribes, individual
landowner organizations, Indian advocacy organizations, and
other interested parties to--
``(i) develop a pilot project for the creation and
management of private and family trusts for interests in
trust or restricted lands; and
``(ii) develop proposed rules, regulations, and guidelines
to implement the pilot project.
``(B) The pilot project shall commence on the date of
enactment of the American Indian Probate Reform Act of 2003
and shall continue for 3 years after the date of enactment of
this subsection.
``(2) Characteristics of private and family trusts.--For
purposes of this subsection and any proposed rules,
regulations, or guidelines developed under this subsection--
``(A) the terms `private trust' and `family trust' shall
both mean trusts created pursuant to this subsection for the
management and administration of interests in trust or
restricted land, held by 1 or more persons, which comprise
the corpus of a trust, by a private trustee subject to the
approval of the Secretary;
``(B) private and family trusts shall be created and
managed in furtherance of the purposes of the Indian Land
Consolidation Act (25 U.S.C. 2201 et seq.); and
``(C) private and family trusts shall not be construed to
impair, impede, replace, abrogate, or modify in any respect
the trust duties or responsibilities of the Secretary, nor
shall anything in this subsection or in any rules,
regulations, or guidelines developed under this subsection
enable any private or family trustee of interests in trust or
restricted lands to exercise any powers over such interests
greater than that held by the Secretary with respect to such
interests.
``(3) Report to congress.--Prior to the expiration of the
pilot project provided for under this subsection, the
Secretary shall submit a report to Congress stating--
``(A) a description of the Secretary's consultation with
Indian tribes, individual landowner associations, Indian
advocacy organizations, and other parties consulted with
regarding the development of rules, regulations, and/or
guidelines for the creation and management of private and
family trusts over interests in trust and restricted lands;
``(B) the feasibility of accurately tracking such private
and family trusts;
``(C) the impact that private and family trusts would have
with respect to the accomplishment of the goals of the Indian
Land Consolidation Act (25 U.S.C. 2201 et seq.); and
``(D) a final recommendation regarding whether to adopt the
creation of a permanent private and family trust program as a
management and consolidation measure for interests in trust
or restricted lands.''.
SEC. 7. UNCLAIMED AND ABANDONED PROPERTY.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)
(as amended by section 5) is amended by adding at the end the
following:
``SEC. 222. UNCLAIMED AND ABANDONED PROPERTY.
``(a) Interests Presumed Abandoned.--An undivided trust or
restricted interest in a parcel of land owned by a person
shall be presumed abandoned and subject to the provisions of
this section if the Secretary makes a determination that--
``(1) a period of 6 consecutive years next preceding such
determination has passed during which the person owning such
interest has not made any indication or expression of
interest in the trust or restricted interest as set forth in
subsection (b);
``(2) the person owning the trust or restricted interest
was, at all times during the 6-year period described in
paragraph (1), over the age of 18; and
``(3) as of the expiration of the 6-year period described
in paragraph (1), such parcel was a parcel of highly
fractionated Indian land.
``(b) Indicators of Owner Interest.--For purposes of
subsection (a), an indication or expression of an owner's
interest in the property shall mean the owner or any person
acting on behalf of the owner--
``(1) making a deposit to, withdrawal from, or inquiry into
an individual Indian money account associated with such
interest;
``(2) negotiating a Treasury check derived from such
interest or account;
``(3) providing the Secretary with a valid address; or
``(4) communicating with the Secretary regarding such
interest or account.
``(c) Related Property.--At the time that property is
presumed to be abandoned under this section, any other
property right accrued or accruing to the owner as a result
of the interest, including funds in an associated individual
Indian money account, that has not previously been presumed
abandoned under this section, also shall be presumed
abandoned.
``(d) Annual List of Property; Notice to Owners.--No later
than the first day of November of each year, the Secretary
shall prepare and distribute a list of names of persons
owning property presumed abandoned under this section during
the preceding fiscal year and provide notice to such persons
in accordance with the following requirements:
``(1) Contents of annual list.--The list shall set forth--
``(A) the names of all persons owning interests in land and
property presumed to be abandoned under this section;
``(B) with respect to each person named on the list, the
reservation, if any, and the county and State in which the
person's interest in land is located;
``(C) the reservation, if any, the city or town, county and
State of the person's last known address; and
``(D) the name, address, and telephone number of the
official or officials within the Department of the Interior
to contact for purposes of identifying persons or lands
included on the list.
``(2) Distribution of list.--The list shall be distributed
to all regional offices and agencies of the Bureau of Indian
Affairs and to all reservations where land described on this
list is located and shall cause the list to be published in
the Federal Register within 15 days after the list is
prepared.
``(3) Notice by mail.--In addition to publishing and
distributing the list described in paragraph (1), the
Secretary shall attempt to provide the persons owning such
trust or restricted interests with actual written notice that
the interest and any associated funds or property is presumed
abandoned under the provisions of this section. Such notice
shall be sent by first class mail to the owner at the owner's
last known address and shall include the following:
``(A) A legal description of the parcel of which the
interest is a part.
``(B) A description of the owner's interest.
``(C) A statement that the owner has not indicated or
expressed an interest in the trust or restricted interest for
a period of 6 consecutive years and that such interest, and
any funds in an associated individual Indian money account,
is presumed abandoned.
``(D) A statement that the interest will be appraised and
sold for its appraised value unless the owner responds to the
notice within 60 days after the notice is mailed or
published.
``(E) A statement that in the event the owner fails to
respond and the notice and the property is sold, the proceeds
of such sale and any funds in any associated individual
Indian money account will be deposited in an unclaimed
property account.
``(4) Search for whereabouts of owner.--If the notice
described in paragraph (3) is returned undelivered, the
Secretary shall attempt to locate the owner by--
``(A) searching publicly available records and Federal
records, including telephone and address directories and
using electronic search methods;
``(B) inquiring with--
``(i) the owner's relatives, if any are known;
``(ii) any Indian tribe of which the owner is a member; and
``(iii) the Indian tribe, if any, with jurisdiction over
the interest; and
``(C) if the value of the interest and any funds in an
associated individual Indian money account exceeds $1,000,
engaging an independent search firm to perform a missing
person search.
``(5) Notice by publication.--In the event that the
Secretary is unable to locate the owner pursuant to paragraph
(4), the Secretary shall publish a notice not later than
November 30 following the fiscal year in which the property
was presumed to be abandoned under this section. The notice
shall include the same information required for the notice
described in paragraph (3) and shall be--
``(A) published in a newspaper of general circulation on or
near the apparent owner's home reservation and near the last
known address of the owner; and
``(B) in a form that is likely to attract the attention of
the apparent owner of the property.
``(e) Conversion of Abandoned Interests.--If, after 2 years
from the date the notice is published under subsection
(d)(3), any such real property or interest therein remains
unclaimed, the Secretary shall appraise such property in a
manner consistent with section 215 of the Indian Land
Consolidation Act (25 U.S.C. 2214) and shall purchase the
property at its appraised value, or sell the property to an
Indian tribe with jurisdiction over such property or a person
who owns an undivided trust or restricted interest in such
property, by competitive bid for not less than the appraised
value. The Secretary shall then transfer any monetary
interest that the Secretary holds for the previous apparent
owner to the unclaimed property account described in
subsection (f).
``(f) Unclaimed Property Account.--
``(1) Except as otherwise provided by this section, the
Secretary shall promptly deposit in a special unclaimed
property account all funds received under this section. The
Secretary shall pay all claims under subsection (g) from this
account. The Secretary shall record the name and last known
address of each person appearing to be entitled to the
property.
``(2) The Secretary is authorized to use interest earned on
the special unclaimed property account to pay--
``(A) the administrative costs of conversion of real
property under subsection (g); and
``(B) costs of mailing and publication in connection with
abandoned property.
``(3) The Secretary shall retain a sufficient balance in
the account at all times from which to pay claims duly
allowed. All other funds shall be available to the Secretary
to use for the purposes of land consolidation pursuant to 25
U.S.C. 2212.
``(g) Claims.--
[[Page S12543]]
``(1) Filing of claim.--An individual, or the heirs of an
individual, may file a claim to recover property or the
proceeds of the conversion of the property on a form
prescribed by the Secretary.
``(2) Allowance or denial of claim.--Not more than 180 days
after a claim is filed, the Secretary shall allow or deny the
claim and give written notice of the decision to the
claimant. If the claim is denied, the Secretary shall inform
the claimant of the reasons for the denial and specify what
additional evidence is required before the claim will be
allowed. The claimant may then file a new claim with the
Secretary or maintain an action under this subsection.
``(3) Payment of allowed claim.--Not more than 60 days
after a claim is allowed, the property or the net proceeds of
the conversion of the property shall be delivered or paid by
the Secretary to the claimant, together with any interest, or
other increment to which the claimant is entitled under this
section.
``(4) Judicial review.--An individual aggrieved by a
decision of the Secretary under this subsection or whose
claim has not been acted upon within 180 days may, after
exhausting administrative remedies, seek--
``(A) judicial review or other appropriate relief against
the Secretary in a United States district court, which may
include an order quieting beneficial title in the name of
petitioner whose property was sold by the Secretary in
violation of this section; and
``(B) recover reasonable attorneys fees if he is the
prevailing party.
``(h) Voluntary Abandonment.--Any person who is an owner of
an interest subject to this section may, with the Secretary's
approval, voluntarily abandon that interest to the benefit of
the tribe with jurisdiction over the parcel of land or a co-
owner of a trust or restricted interest in the same parcel of
land in accordance with regulations adopted pursuant to
subsection (j).
``(i) Transfer of Abandoned Interests in Land.--
``(1) Any interest in land acquired under subsection (e) or
(h) over which an Indian tribe has jurisdiction shall be held
in trust by the Secretary for the benefit of that tribe,
provided that the tribe may decline any such property in its
discretion, and provided that if the tribe declines or does
not currently own any interest within that parcel a co-owner
with a majority interest shall have the first right of
purchase of the property at the appraised price.
``(2) Any interest in real property acquired under
subsection (e) or (h) that is not subject to the jurisdiction
of an Indian tribe shall be held in trust by the Secretary
for all of the other co-owners of undivided trust or
restricted interests in the parcel in proportion to their
respective interests in the property, provided that any owner
may decline to accept such interest, in which case that
interest shall be allocated proportionately among such other
co-owners who do not decline.
``(3) The Indian tribe or other subsequent owner described
in paragraph (2) takes such interest free of all claims by
the owner who abandoned the interest and of all persons
claiming through or under such owner.
``(j) Regulations.--The Secretary is authorized to adopt
such regulations as may be necessary to implement the
provisions of this section.''.
SEC. 8. MISSING HEIRS.
Section 207 of the Indian Land Consolidation Act (25 U.S.C.
2206) is amended by adding the following:
``(m) Notice.--Prior to holding a hearing to determine the
heirs to trust or restricted property, or making a decision
determining such heirs, the Secretary shall seek to provide
actual written notice of the proceedings to all heirs,
including notice of the provisions of this subsection and of
section 207(n) of this Act. Such efforts shall include--
``(1) a search of publicly available records and Federal
records, including telephone and address directories and
including electronic search methods;
``(2) an inquiry with family members and co-heirs of the
property;
``(3) an inquiry with the tribal government of which the
owner is a member, and the tribal government with
jurisdiction over the property, if any; and
``(4) if the property is of a value greater than $1,000, an
independent firm shall be contracted to conduct a missing
persons search.
``(n) Missing Heirs.--
``(1) For purposes of this subsection and subsection (m),
an heir will be presumed missing if his whereabouts remain
unknown 60 days after completion of notice efforts under
subsection (m) and they have had no contact with other heirs
or the Department for 6 years prior to a hearing or decision
to ascertain heirs.
``(2) Before the date for declaring an heir missing, any
person may request an extension of time to locate an heir. An
extension may be granted for good cause.
``(3) An heir shall be declared missing only after a review
of the efforts made and a finding that this section has been
complied with.
``(4) A missing heir shall be presumed to have predeceased
the decedent for purposes of descent and devise.''.
SEC. 9. ANNUAL NOTICE AND FILING REQUIREMENT FOR OWNERS OF
INTERESTS IN TRUST OR RESTRICTED LANDS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)
(as amended by section 7) is amended by adding at the end the
following:
``SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHEREABOUTS OF
INTEREST OWNERS.
``(a) In General.--On an annual basis, the Secretary shall
send a notice, response form, and a change of name and
address form to each owner of an interest in trust or
restricted land. The notice shall inform owners of their
interest and obligation to provide the Secretary with a
notice of any change in their name or address immediately
upon such change. The response form should include a section
in which the owner may confirm or update his name and
address. The change of name and address form may be used by
the owner at any time when his name or address changes
subsequent to his annual filing of the response form.
``(b) Owner Response.--The owner of an interest in trust or
restricted land shall file the response form upon receipt to
confirm or update his name and address on an annual basis.
``(c) No Response; Initiation of Search.--In the event that
an owner does not file the response form or provide the
Secretary with a confirmation or update of his name and
address through other means, the Secretary shall initiate a
search in order to ascertain the whereabouts and status of
the owner.''.
SEC. 10. EFFECTIVE DATE.
The amendments made by this Act shall not apply to the
estate of an individual who dies before the later of--
(1) the date that is 1 year after the date of enactment of
this Act; or
(2) the date specified in section 207(g)(5) of the Indian
Land Consolidation Act (25 U.S.C. 2206(g)(5)).
______
By Mr. DOMENICI:
S. 1727. A bill to authorize additional appropriations for the
Reclamation Safety of Dams Act of 1978; to the Committee on Energy and
Natural Resources.
Mr. DOMENICI. Mr. President, I rise today to introduce crucial
legislation regarding the safety of America's Dams. Ensuring the safety
of the Bureau of Reclamation's dams must be a national priority. One of
the surest ways to protect the integrity of this existing
infrastructure is to ensure that adequate funding is accessible to
properly maintain and rehabilitate these great structures.
The Bureau of Reclamation has existing authority that would allow
them to expend approximately $974 million dollars on Safety of Dam
Projects; but only $109 million dollars of this authorization remains
uncommitted. By the end of fiscal year 2002, over 61 dam modifications
had been completed under existing authority. Over the next several
years, at least 46 projects have been identified as critical.
Unfortunately, these projects alone represent an additional
authorization need of close to $540 million. Thus, a huge gap exists
and it is something we must correct. The bill that I am introducing
today, would raise the current ceiling on the Safety of Dams Program to
meet the additional $540 million needed and by so doing to meet the
needs already identified by Reclamation in 11 of the 17 Reclamation
States.
Let me take a few moments to highlight exactly what it is I am
talking about. The United States Bureau of Reclamation currently has
reservoirs impounded by 457 dams and dikes. Of these structures, 362
dams and dikes would likely cause loss of life if they were to fail.
These 362 structures, located at 252 different project facilities, form
the core of Reclamation's Dam Safety Program.
Approximately 50 percent of Reclamation's dams were built between
1900 and 1950. Additionally, an estimated 90 percent of the dams were
built before currently used state-of-the-art design and construction
practices. A strong dam safety program must be maintained to identify
potential adverse performance within Reclamation's inventory of aging
dams and to carry out corrective actions expeditiously when
unreasonable public risk is identified.
I plan to take action on this measure during this Congress and I urge
my colleagues to join with me in ensuring the safety and reliability of
these dams. I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1727
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ADDITIONAL AUTHORIZATION OF APPROPRIATIONS FOR THE
RECLAMATION SAFETY OF DAMS ACT OF 1978.
(a) Reimbursement of Certain Modification Costs.--Section
4(c) of the Reclamation Safety of Dams Act of 1978 (43 U.S.C.
508(c)) is amended by striking ``(c) With respect to''
[[Page S12544]]
and all that follows through ``2001'' and inserting the
following:
``(c) Reimbursement of Certain Modification Costs.--With
respect to the additional amounts authorized to be
appropriated by section 5''.
(b) Authorization of Appropriations.--Section 5 of the
Reclamation Safety of Dams Act of 1978 (43 U.S.C. 509) is
amended in the first sentence--
(1) by striking ``and effective October 1, 2001'' and
inserting ``effective October 1, 2001'';
(2) by inserting ``and, effective October 1, 2003, not to
exceed an additional $540,000,000 (October 1, 2003, price
levels),'' after ``(October 1, 2001, price levels),''; and
(3) by striking ``$750,000'' and inserting ``$1,250,000
(October 1, 2003, price levels), as adjusted to reflect any
ordinary fluctuations in construction costs indicated by
applicable engineering cost indexes,''.
______
By Mr. GRAHAM of Florida (for himself and Ms. Snowe):
S. 1729. A bill to establish an informatics grant program for
hospitals and skilled nursing facilities in order to encourage health
care providers to make major information technology advances; to the
Committee on Finance.
Mr. GRAHAM of Florida. Mr. President, I am very pleased to introduce
the Medication Errors Reduction Act of 2003 with my friend and
colleague Senator Olympia Snowe.
In recent years we've heard much about the consequences of medication
errors. What we haven't heard as much about are the root causes for the
medication errors, or the solutions that are available to us to reduce
errors, save lives, prevent injuries, and reduce costs. Simply put, our
legislation is necessary because as a nation we face a serious patient-
safety problem. The good news is that we have a solution to the
problem: we have the technological ability to dramatically reduce
medication errors and thus save lives.
The bad news is that the start-up costs and a lack of awareness have
to this point been preventing us from reaping the benefits of the new
technologies. The solution is right in front of us, but has been just
out of reach.
The legislation we are introducing today would bring the solution
within our reach. It would address the causes of medication errors--
which are systems breakdowns--and the solutions--use of clinical
computerized information systems that can save lives.
We are here today to lend a helping hand, not to point a finger. We
all share the goal of improving patient safety, and our bill will do
that in a very simple, straightforward manner. The legislation
establishes a voluntary grant program to encourage hospitals and
skilled nursing facilities to become the pioneers of new, life-saving
technologies. It does that by assisting with the often prohibitive
start-up costs associated with purchasing and implementing information
systems--systems that are designed to reduce medication errors and
improve patient safety.
I want to stress the goal of this legislation: to help build a safer
medication-delivery system. The great successes of our health care
system are largely due to our highly committed and talented doctors,
nurses, pharmacists, hospitals, nursing homes and other health care
providers. The problem we are addressing today is not theirs, but is a
problem with the system they rely on to provide inpatient care.
The Institute of Medicine report that kicked off much of this
discussion 4 years ago tells us that we must address the ``systems
problems'' and design systems that will prevent errors--just as cars
are designed so that drivers cannot start them while in reverse helps
prevent automobile accidents.
The systems we want to fund would improve the medication-delivery
system at many stages.
We leave it up to the hospitals and nursing homes to determine
exactly what types of technology would best fit their institutions and
their needs. The grants could be used to purchase or improve computer
software and hardware, purchase or lease communications capabilities,
or provide education and training staff on computer patient safety
programs.
The grants could be used to improve patient safety at every stage of
the medication delivery process. For example, a hospital or nursing
home could use the funds to implement 1. electronic prescribing systems
that can intercept errors at the time medications are ordered, 2.
electronic medical records to alert doctors to possible drug
interactions and complications related to the patient's medical
history, 3. automated pharmacy dispensing to make sure the nurse
receives the correct medication in the correct dosage for the correct
patient, and 4. bedside verification--using bar codes on patient
wristbands and the medications to ensure that the right medication is
administered to the right patient at the right time.
We could only have dreamed about clinical computerized information
systems when the Medicare program was implemented. Today, we have them
at our disposal. The sooner we get them into our hospitals and nursing
homes, the sooner we start saving lives.
The Medication Errors Reduction Act is supported by the Florida
Hospital Association, National Rural Health Association, National
Association of Children's Hospitals, Healthcare Leadership Council,
AFSCME, Federation of American Hospitals, Catholic Health Association
of the United States, Association of American Medical Colleges,
Premier, Inc., the American Society of Heath-System Pharmacists,
McKesson Corporation, IBM, VHA, Inc., Vanderbilt University Medical
Center, New York Presbyterian Hospital, Aetna, Siemens,
AmerisourceBergen Corporation, American Health Packaging, AutoMed,
Choice Systems, Inc., Pharmacy Healthcare Solutions, Telepharmacy
Solutions, Verizon, Becton Dickinson, American Health Care Association,
AFL-CIO, Cardinal Health, and the eHealth Initiative.
I ask their letters of support to be included for the Record. With
their help, this bill will become law and we will be well on our way to
improving patient safety.
There being no objection, the material was ordered to be printed in
the Record, as follows:
October 13, 2003.
Hon. Robert Graham,
U.S. Senate,
Hon. Olympia Snowe,
U.S. Senate,
Hon. Amo Houghton,
House of Representatives,
Hon. Earl Pomeroy,
House of Representatives,
Washington, DC.
Dear Senators Graham and Snowe and Representatives Houghton
and Pomery: Long engaged in efforts to improve patient
safety, the undersigned organizations strongly support the
``Medication Errors Reduction Act of 2003.'' This critical
legislation would fund efforts to improve our nation's
clinical safety systems. Since the release of the 1999
Institute of Medicine report, to Err is Human, we have
collectively embraced a more vigorous commitment to the
advancement of patient safety in our healthcare system.
Concern over improving the quality of our nation's health
care extends far beyond the provider community. The business
community, consumers, and Labor have an equally vested
interest. While the issues surrounding the improvement of
patient safety are numerous and complex, we agree that the
facilitated deployment of new technologies to certain
providers would be of immense benefit. Further, we believe
that clinical healthcare informatics systems designed to
reduce the incidence of adverse events and complications
stemming from medication errors great promise.
New and evolving technologies like computer physician
order-entry (CPOE), bedside verification, and automated
pharmacy dispensing could prove particularly beneficial to
many healthcare providers. Still, sizable barriers to
acquisition and deployment exist. The inability to finance
such systems in perhaps the most insurmountable--but the
easiest to address, as well. This legislation would permit
providers and their patients to reap the rewards of these
critical patient safety improvement technology tools.
Again, we thank you for having introduced the ``Medication
Errors Reduction Act of 2003,'' and look forward to working
with you toward enactment.
Sincerely,
Premier, Inc.;
IBM;
VHA, Inc.;
Vanderbilt University Medical Center;
New York Presbyterian Hospital;
Aetna;
McKession Corporation;
Siemens;
AmerisourceBergen Corporation;
American Health Packaging;
AutoMed;
Choice Systems, Inc.;
Pharmacy Healthcare Solutions;
Telepharmacy Solutions;
National Rural Health Association;
National Association of Children's Hospitals;
Verizon;
Becton Dickenson;
Federation of American Hospitals;
American Health Care Association;
AFL-CIO;
Cardinal Health;
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American Society of Health-System Pharmacists;
Healthcare Leadership Council;
eHealth Initiative;
Catholic Health Association of the United States;
Association of American Medical Colleges; and
AFSCME.
____
Premier Advocacy,
September 12, 2003.
Hon. Robert Graham,
U.S. Senate,
Hon. Olympia Snowe,
U.S. Senate,
Hon. Amo Houghton,
House of Representatives,
Hon. Earl Pomeroy,
House of Representatives,
Washington, DC.
Dear Senators Graham and Snowe and Representatives Houghton
and Pomeroy:
On behalf of the more than 1,500 leading not-for-profit
hospitals and health systems allied in Premier, Inc., and the
millions of patients whose healthcare needs they serve, we
extend our vigorous support for the Medication Errors
Reduction Act of 2003.
This innovative legislation would provide grants to
hospitals and nursing facilities to offset the prohibitively
high costs of developing and implementing new patient safety
and information technologies to reduce medical errors and
adverse events. As such, the measure would undoubtedly
contribute to the sustained improvement of quality health
care in America.
The legislation's establishment of a ten-year, $1 billion
grant program would effectively mitigate the most formidable
barrier to hospitals' implementation of new, life-saving
technologies--namely, cost. In this way, the efforts of early
adopters of new technologies are simultaneously rewarded and
facilitated.
As you know, Premier is a long-standing champion of patient
safety and quality improvement. At present, we are hosting a
series of collaborative meetings designed to help members
implement and adopt computerized physician order entry
(CPOE). Participation by hospital executives, including CIOs,
CMOs and CEOs, as well as their CPOE project leaders,
facilitate and energize the exchange of knowledge and
experience, which are invaluable to the advancement of CPOE
adoption. In addition, Premier has long championed industry
adoption of the bar code for drug, biological, and
appropriate medical device labeling to reduce the incidence
of adverse events, and improve patient safety overall.
Premier and its member hospitals believe that the
Medication Errors Reduction Act represents a significant step
on the path to improved patient care. We applaud your
efforts, and look forward to working with you toward passage
of this critical legislation.
Sincerely,
Herb Kuhn,
Corporate Vice President.
____
McKesson Corporation,
San Francisco, CA, September 12, 2003.
Hon. Bob Graham,
U.S. Senate,
Hon. Olympia Snowe,
U.S. Senate, Washington, DC.
Dear Senators Graham and Snowe: On behalf of McKesson
Corporation, I would like to thank you for authorizing the
Medication Errors Reduction Act of 2003. We strongly support
this legislation and applaud your leadership in identifying
ways to help reduce medication errors and improve the quality
of health care in our nation.
As the world's largest healthcare services company,
McKesson provides automation, information systems, and
pharmacy services that enable medication management accuracy.
We have pioneered advances in medication management
technology by providing hospitals, retail pharmacies and
other clinical settings with unique robotic pharmaceutical
dispensing and bedside bar-coding technologies to ensure that
the right drug, in the appropriate dosage, is administered to
the right patient via the right route at the right time. In
addition, McKesson provides computerized physician order
systems, pharmacy information systems, and clinical
consulting services designed to improve the quality and
delivery of health care.
As early as 1993, the University of Wisconsin Hospitals and
Clinics (UWHC) embraced McKesson's automation and bar code
solutions for pharmaceutical distribution. Building on this
system, they have implemented point-of-care bar code scanning
at the bedside. In partnership with McKesson on clinical
programs and adverse drug event tracking, UWHC has
demonstrated a significant reduction in medication errors,
enhanced efficiency, increased clinician satisfaction, and
improved medication documentation. As an example of these
successes,they have achieved an 89 percent reduction in
medication administration errors due to point-of-care bar
code scanning, as well as a reduction in dispensing errors
from 1.43 percent to 0.13 percent. UWHC also realized a
return on investment in two years.
We commend you for recognizing the need for economic
incentives to accelerate the adoption of innovative
technology so critically needed in today's health care
environment. By providing grants to hospitals and skilled
nursing facilities, your legislation will facilitate the
widespread use of technology designed to prevent medication
errors and enhance patient safety. We stand ready to work
with you and your staff to support passage of this
legislation.
Sincerely,
Ann Richardson Berkey,
Vice President, Public Affairs.
____
American Society of
Health-System Pharmacists,
Bethesda, MD, September 17, 2003.
Hon. Robert Graham,
U.S. Senate, Washington, DC.
Hon. Olympia Snowe,
U.S. Senate, Washington, DC.
Hon. Amo Houghton,
House of Representatives,
Washington, DC.
Hon. Earl Pomeroy,
House of Representatives,
Washington, DC.
Dear Senators Graham and Snowe and Representatives Houghton
and Pomeroy: The American Society of Health-System
Pharmacists (ASHP), the 30,000-member national professional
association that represents pharmacists who practice in
hospitals, health maintenance organizations, long-term care
facilities, home care, and other components of health care
systems, would like to commend you on introduction of the
``Medication Errors Reduction Act of 2003.''
The Institute of Medicine (IOM) report, To Err is Human:
Building a Safer Health System, pointed out as many as 98,000
patients die annually as the result of medical errors, 7,000
of which are the direct result of medication-related
complications. Handwritten clinical data, incomplete,
outdated, or improperly implemented information technology
within our nation's health system contributes to the high
number of adverse events or health care complications due to
medication use.
Research demonstrates that information technology
enhancements, when appropriately implemented, enhance the
appropriate, accurate, and timely distribution of
medications, and improve the quality of patient care.
The voluntary grant program for which your legislation
provides would allow early adopters of new technology to meet
the high price tag associated with this technology as well as
the necessary and important expense of properly educating and
training staff on the correct use of the information system.
ASHP hopes to foster a fail-safe medication process. Your
legislation helps move toward that goal and we look forward
to a continued partnership to make this a reality. For more
information, please contact Kathleen M. Cantwell, Director,
Federal Legislative Affairs and Government Affairs Counsel,
at 301/657-3000, ext. 1326.
Sincerely,
Henri R. Manasse, Jr.,
Executive Vice President and
Chief Executive Officer.
____
Florida Hospital Association,
October 14, 2003.
Hon. Bob Graham,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Graham: On behalf of the more than 230 members
of the Florida Hospital Association, I want to commend you
for introducing legislation to provide financial assistance
to help hospitals take patient safety to the next level. Your
bill, the ``Medication Errors Reduction Act of 2003,''
represents a significant step toward assisting hospitals in
Florida and throughout the country in their continuous
efforts to improve their clinical safety systems.
Your initiative recognizes that our commitment to patient
safety requires more financial resources than are currently
available to hospitals, which continue to experience
extraordinary financial pressures. You are a realist--
matching resources in support of a great need.
The FHA will encourage other members of the Florida
Congressional Delegation to support your bill--a measure that
targets our desire to improve patient safety. It will be
important for the bill to retain its clear focus, and not
become weighted down with extraneous legislative baggage that
could change its focus.
Thank you for moving so swiftly to help us protect patients
while protecting the integrity of the Hospital Trust Fund.
Sincerely yours,
Wayne NeSmith,
President.
Ms. SNOWE. Mr. President, I rise today to join my colleague, Senator
Bob Graham of Florida, in reintroducing the Medication Errors Reduction
Act, which will serve to improve the quality of health care delivered
in hospitals and skilled nursing facilities by reducing medical errors.
The lack of quality assurances in America's health care system has been
documented many times. We believe this bill is the first step in the
process to correct this troubling circumstance and to ensure that the
American health system is the world's safest.
We first began development of this legislation in 2001, following the
release of the Institute of Medicine's (IOM) report ``To Err Is Human:
Building a Safer Health System.'' We were prompted by the startling
revelations contained in the report that showed up
[[Page S12546]]
to 98,000 people per year lose their lives because of a medical error
and the annual financial impact that results from these mistakes is
believed to be as high as $29 billion.
As you might imagine, a medical error can be many things, but the
Institute defines it as ``the failure of a planned action to be
completed as intended or the use of a wrong plan to achieve an aim.''
The Institute sites among the problems that commonly occur during the
course of providing health care--adverse drug events and improper
transfusions, surgical injuries and wrong-site surgery, suicides,
restraint-related injuries or death, falls, burns, pressure ulcers and
mistaken patient identities. All of these can have tragic endings, but
all are preventable.
In developing the solution, we looked to incentives that would prompt
hospitals and skilled nursing facilities to utilize technology to
identify inaccuracies and prevent medical errors before they happen.
Senator Graham and I developed a proposal that provides Federal
matching funds to hospitals and skilled nursing facilities that
integrate into their medical systems technology that can prevent
medical errors. Technology exists, as never before, that can help
identify errors before they happen, and save lives. But this technology
is rendered useless if it is not being utilized. That is why the
Federal Government must step forward and provide the necessary
incentives to prompt innovation.
In taking this step, we believe it is imperative that the Federal
Government invest time and funding in not just identifying the
solution, but to provide the means to implement the solution. It is the
role of the Federal Government to lead, and I believe that providing
grant funding to hospitals and skilled nursing facilities to integrate
technology into their health care delivery systems will in fact provide
the necessary leadership to see this idea become a reality.
More specifically, the grants provided by this legislation can be
used to purchase or improve computer software and hardware, and provide
education and training to staff on computer patient safety programs.
They also may be used to improve patient safety at every stage of the
medication delivery process through: electronic prescribing systems
that can intercept errors at the time medications are ordered;
electronic medical records to alert doctors to possible drug
interactions and complications related to the patient's medical
history; automated pharmacy dispensing to make sure the nurse receives
the correct medication in the correct dosage for the correct patient;
and bedside verification--using bar codes on patient wristbands and the
medications to ensure that the right medication is administered to the
right patient at the right time.
Further, we direct the funding to hospitals that serve predominately
patients who receive insurance coverage through Medicare, Medicaid and
S-CHIP. And to ensure that all hospitals, especially those in rural
communities that have smaller operating margins, can afford to utilize
this innovative new program, we set aside 20 percent of the funding for
rural hospitals. I believe this is an important and necessary step to
protect our rural communities and provide families with the highest
quality care.
I hope my colleagues will join us in support of this legislation so
we soon will be able to reduce the number of Americans who are harmed
by medical errors.
______
By Ms. SNOWE (for herself, Mrs. Murray, Mr. Biden, and Mrs.
Feinstein):
S. 1730. A bill to require that health plans provide coverage for a
minimum hospital stay for mastectomies, lumpectomies, and lymph node
dissection for the treatment of breast cancer and coverage for
secondary consultations; to the Committee on Health, Education, Labor,
and Pensions.
Ms. SNOWE. Mr. President, I rise today to reintroduce the Women's
Health and Cancer Rights Act. I am pleased to be joined by my friends,
Senator Murray of Washington and Senator Biden of Delaware, and Senator
Feinstein of California, as original cosponsors of this bill.
This bill has a two-fold purpose. First, it will ensure that
appropriate medical care determines how long a woman stays in the
hospital after undergoing a mastectomy--not a predetermined amount of
time legislated by Congress. This provision says that inpatient
coverage with respect to the treatment of mastectomy, lumpectomy, or
lymph node dissection--regardless of whether the patient's plan is
regulated by ERISA or State regulations--will be provided for a period
of time as is determined by the attending physician, in consultation
with the patient, to be medically necessary and appropriate. Second,
this bill allows any person facing a cancer diagnosis of any type to
get a second opinion on their course of treatment.
A diagnosis of breast cancer is something that every woman dreads.
But for an estimated 192,020 American women, this is the year their
worst fears will be realized. One thousand new cases of breast cancer
will be diagnosed among the women in Maine, and 200 women in my home
State will die from this tragic disease. The fact is, one in nine women
will develop breast cancer during their lifetime, and for women between
the ages of 35 and 54, there is no other disease which will claim more
lives.
It's not hard to understand why the words ``you have breast cancer''
are some of the most frightening words in the English language. For the
woman who hears them, everything changes from that moment forward. No
wonder, then, that it is a diagnosis not only accompanied by fear, but
also by uncertainty. What will become of me? What will they have to do
to me? What will I have to endure? What's the next step?
For many women, the answer to that last question is a mastectomy or
lumpectomy. Despite the medical and scientific advances that have been
made, despite the advances in early detection technology that more and
more often negate the need for radical surgery, it still remains a fact
of life at the beginning of the 21st century these procedures can be
the most prudent option in attacking and eradicating cancer found in a
woman's breast.
These are the kind of decisions that come with a breast cancer
diagnosis. These are the kind of questions women must answer, and they
must do so under some of the most stressful and frightening
circumstances imaginable. The last question a woman should have to
worry about at a time like this is whether or not their health
insurance plan will pay for appropriate care after a mastectomy or
lumpectomy, or that she won't be able to remain in a doctor's immediate
care for as long as she needs to be. A woman diagnosed with breast
cancer in many ways already feels as though she has lost control of her
life. She should not feel as though she has also lost control of her
course of treatment.
The evidence for the need for this bill--especially when it comes to
so-called ``drive through mastectomies'', is more than just
allegorical. Indeed, the facts speak for themselves--between 1986 and
1995, the average length of stay for a mastectomy dropped from about
six days to about two to three days. Thousands of women across the
country are undergoing radical mastectomies on an outpatient basis and
are being forced out of the hospital before either they or their doctor
think it's reasonable or prudent.
This decision must be returned to physicians and their patients, and
all Americans who face the possibility of a cancer diagnosis must be
able to make informed decisions about appropriate and necessary medical
care.
I urge my colleagues to join me in supporting this bill and work
towards passing it this year.
____________________