[Congressional Record (Bound Edition), Volume 148 (2002), Part 17]
[Senate]
[Pages 23411-23417]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   INDIAN PROBATE REFORM ACT OF 2002

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
proceed to Calendar No. 766, S. 1340.
  The PRESIDING OFFICER. The clerk will state the bill by title.
  The legislative clerk read as follows:

       A bill (S. 1340) to amend the Indian Land Consolidation Act 
     to provide for probate reform with respect to trust and 
     restricted lands.

  There being no objection, the Senate proceeded to consider the bill 
which was reported by the Committee on Indian Affairs with an 
amendment, as follows:
  [Strike the part shown in black brackets and insert the part shown in 
Italic.]

                                S. 1340

       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 ``Indian Probate Reform Act 
     of 2001''.

     [SEC. 2. AMENDMENTS TO THE INDIAN LAND CONSOLIDATION ACT.

       [(a) In General.--The Indian Land Consolidation Act (25 
     U.S.C. 2201 et seq.) is amended by adding at the end the 
     following:

                  [``Subtitle B--Indian Probate Reform

     [``SEC. 231. FINDINGS.

       [``Congress makes the following findings:
       [``(1) The General Allotment Act of 1887 (commonly known as 
     the ``Dawes Act''), which authorized the allotment of Indian 
     reservations, did not allow Indian allotment owners to 
     provide for the testamentary disposition of the land that was 
     allotted to such owners.
       [``(2) The Dawes Act provided that allotments would descend 
     according to State law of intestate succession based on the 
     location of the allotment.
       [``(3) The Federal Government's reliance on the State law 
     of intestate succession with respect to the descendency of 
     allotments has resulted in numerous problems to Indian 
     tribes, their members, and the Federal Government. These 
     problems include--
       [``(A) the increasing fractionated ownership of trust and 
     restricted land as these lands are inherited by successive 
     generations of owners as tenants in common;
       [``(B) the application of different rules of intestate 
     succession to each of a decedent's interests in trust and 
     restricted land if such land is located within the boundaries 
     of different States which makes probate planning 
     unnecessarily difficult and 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 is unfair to the owners of 
     trust and restricted land and their heirs and devisees and 
     which makes probate planning more difficult.
       [``(4) Based on the problems identified in paragraph (3), a 
     uniform Federal probate code would likely--
       [``(A) reduce the number of unnecessary fractionated 
     interests in trust or restricted land;
       [``(B) facilitate efforts to provide probate planning 
     assistance and advice;
       [``(C) facilitate inter-tribal efforts to produce tribal 
     probate codes pursuant to section 206; and
       [``(D) provide essential elements of general probate law 
     that are not applicable on the date of enactment of this 
     subtitle to interests in trust or restricted land.

     [``SEC. 232. RULES RELATING TO INTESTATE INTERESTS AND 
                   PROBATE.

       [``(a) In General.--Any interest in trust or restricted 
     land that is not disposed of by a valid will shall--
       [``(1) descend according to a tribal probate code that is 
     approved pursuant to section 206; or
       [``(2) in the case of an interest in trust or restricted 
     land to which such a code does not apply, be considered an 
     `intestate interest' and descend pursuant to subsection (b), 
     this Act, and other applicable Federal law.
       [``(b) Intestate Succession.--An interest in trust or 
     restricted land described in subsection (a)(2) (intestate 
     interest) shall descend as provided for in this subsection in 
     the following order:
       [``(1) Surviving indian spouse.--
       [``(A) Sole heir.--A surviving Indian spouse of the 
     decedent shall receive all of the decedent's intestate 
     interests if no Indian child or grandchild of the decedent 
     survives the decedent.
       [``(B) Other heirs.--A surviving Indian spouse of the 
     decedent shall receive a one-half interest in each of the 
     decedent's intestate interests if the decedent is also 
     survived by Indian children or grandchildren.
       [``(C) Heirs of the first or second degree other than 
     surviving indian spouse.--The one-half interest in each of 
     the decedent's intestate interests that do not descend to the 
     surviving Indian spouse under subparagraph (B) shall descend 
     in the following order:
       [``(i) To the Indian children of the decedent in equal 
     shares, or to the Indian grandchildren of the decedent, if 
     any, in equal shares by right of representation if 1 or more 
     of the Indian children of the decedent do not survive the 
     decedent.
       [``(ii) If the decedent is not survived by Indian children 
     or grandchildren, to the surviving Indian parent of the 
     decedent, or to both of the surviving Indian parents of the 
     decedent as joint tenants with the right of survivorship.
       [``(iii) If the decedent is not survived by any person who 
     is eligible to inherit under clause (i) or (ii), to the 
     surviving Indian brothers and sisters of the decedent.
       [``(iv) If the decedent is not survived by any person who 
     is eligible to inherit under clause (i), (ii), or (iii), the 
     intestate interests shall descend, or may be acquired, as 
     provided for in section 207(a)(3)(B), 207(a)(4), or 
     207(a)(5).
       [``(2) No surviving indian spouse.--If the decedent is not 
     survived by an Indian spouse, the intestate interests of the 
     decedent shall descend to the individuals described in 
     subparagraphs (A) through (D) who survive the decedent in the 
     following order:
       [``(A) To the Indian children of the decedent in equal 
     shares, or to the Indian grandchildren of the decedent, if 
     any, in equal shares by right of representation if 1 or more 
     of the Indian children of the decedent do not survive the 
     decedent.
       [``(B) If the decedent is not survived by Indian children 
     or grandchildren, to the surviving Indian parent of the 
     decedent, or to both of the surviving Indian parents of the 
     decedent as joint tenants with the right of survivorship.
       [``(C) If the decedent is not survived by any person who is 
     eligible to inherit under subparagraph (A) or (B), to the 
     surviving Indian brothers and sisters of the decedent.

[[Page 23412]]

       [``(D) If the decent is not survived by any person who is 
     eligible to inherit under subparagraph (A), (B), or (C), the 
     intestate interests shall descend, or may be acquired, as 
     provided for in section 207(a)(3)(B), 207(a)(4), or 
     207(a)(5).
       [``(3) Surviving non-indian spouse.--
       [``(A) No descendants.--A surviving non-Indian spouse of 
     the decedent shall receive a life estate in each of the 
     intestate interests of the decedent pursuant to section 
     207(b)(2) if the decedent is not survived by any children or 
     grandchildren.
       [``(B) Descendants.--A surviving non-Indian spouse of the 
     decedent shall receive a life estate in one-half of the 
     intestate interests of the decedent pursuant to section 
     207(b)(2) if the decedent is survived by at least one of the 
     children or grandchildren of the decedent.
       [``(C) Descendants other than surviving non-indian 
     spouse.--The one-half life estate interest in each of the 
     decedent's intestate interests that do not descend to the 
     surviving non-Indian spouse under subparagraph (B) shall 
     descend to the children of the decedent in equal shares, or 
     to the grandchildren of the decedent, if any, in equal shares 
     by right of representation if 1 or more of the children of 
     the decedent do not survive the decedent.
       [``(4) No surviving spouse or indian heirs.--If the 
     decedent is not survived by a spouse, a life estate in the 
     intestate interests of the decedent shall descend in the 
     following order:
       [``(A) To the children of the decedent in equal shares, or 
     to the grandchildren of the decedent, if any, in equal shares 
     by right of representation if 1 or more of the children of 
     the decedent do not survive the decedent.
       [``(B) If the decedent has no surviving children or 
     grandchildren, to the surviving parents of the decedent.
       [``(5) Remainder interest from life estates.--The remainder 
     interest from a life estate established under paragraphs (3) 
     and (4) shall descend in the following order:
       [``(A) To the Indian children of the decedent in equal 
     shares, or to the Indian grandchildren of the decedent, if 
     any, in equal shares by right of representation if 1 or more 
     of the children of the decedent do not survive the decedent.
       [``(B) If there are no surviving Indian children or 
     grandchildren of the decedent, to the surviving Indian parent 
     of the decedent or to both of the surviving Indian parents of 
     the decedent as joint tenant with the right of survivorship.
       [``(C) If there is no surviving Indian child, grandchild, 
     or parent, to the surviving Indian brothers or sisters of the 
     decedent in equal shares.
       [``(D) If there is no surviving Indian descendant or 
     parent, brother or sister, the intestate interests of the 
     decedent shall descend, or may be acquired, as provided for 
     in section 207(a)(3)(B), 207(a)(4), or 207(a)(5).
       [``(c) Special Rule Relating to Survival.--For purposes of 
     this section, an individual who fails to survive a decedent 
     by at least 120 hours is deemed to have predeceased the 
     decedent for purposes of intestate succession, and the heirs 
     of the decedent shall be determined accordingly. If it is not 
     established by clear and convincing evidence that an 
     individual who would otherwise be an heir survived the 
     decedent by at least 120 hours, such individual shall be 
     deemed to have failed to survive for the required time-period 
     for purposes of the preceding sentence.
       [``(d) Pretermitted Spouses and Children.--
       [``(1) Spouses.--For purposes of this section, if the 
     surviving spouse of a testator married the testator after the 
     testator executed his or her will, the surviving spouse shall 
     receive the intestate share in trust or restricted land that 
     such spouse would have otherwise received if the testator had 
     died intestate. The preceding sentence shall not apply to an 
     interest in trust or restricted lands where--
       [``(A) the will is executed before the date specified in 
     section 234(a);
       [``(B) the testator's spouse is a non-Indian and the 
     testator has devised his or her interests in trust or 
     restricted land to an Indian or Indians;
       [``(C) it appears from the will or other evidence that the 
     will was made in contemplation of the testator's marriage to 
     the surviving spouse;
       [``(D) the will expresses the intention that it is to be 
     effective notwithstanding any subsequent marriage; or
       [``(E) the testator provided for the spouse by a transfer 
     of funds or property outside of the will and an intent that 
     the transfer be in lieu of a testamentary provision is 
     demonstrated by the testator's statements or is reasonably 
     inferred from the amount of the transfer or other evidence.
       [``(2) Children.--For purposes of this section, if a 
     testator executed his or her will prior to the birth of 1 or 
     more children of the testator and the omission is the product 
     of inadvertence rather than an intentional omission, such 
     children shall share in the decedent's intestate interests in 
     trust or restricted lands as if the decedent had died 
     intestate. Any person recognized as an heir by virtue of 
     adoption under the Act of July 8, 1940 (54 Stat 746) shall be 
     treated as a decedent's child under this section.
       [``(e) Divorce.--
       [``(1) Surviving spouse.--
       [``(A) In general.--For purposes of this section, an 
     individual who is divorced from the 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, such individual is married to the 
     decedent at the time of death. A decree of separation that 
     does not terminate the status of husband and wife shall not 
     be considered a divorce for purposes of this subsection.
       [``(B) Rule of construction.--Nothing in subparagraph (A) 
     shall be construed to prevent an entity responsible for 
     adjudicating interests in trust or restricted land from 
     giving force and effect to a property right settlement if one 
     of the parties to the settlement dies before the issuance of 
     a final decree dissolving the marriage of the parties to the 
     property settlement.
       [``(2) Effect of subsequent divorce on a will or devise.--
     If after executing a will the testator is divorced or the 
     marriage of the testator is annulled, upon 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 shall be deemed to be revoked unless the will 
     expressly provides otherwise. Property that is prevented from 
     passing to a former spouse based on the preceding sentence 
     shall pass as if the former spouse failed to survive the 
     decedent. Any provision of a will that is revoked solely by 
     operation of this paragraph shall be revived by the 
     testator's remarriage to the former spouse.
       [``(f) Notice.--To the extent practicable, the Secretary 
     shall notify the owners of trust and restricted land of the 
     provisions of this title. Such notice may, at the discretion 
     of the Secretary, be provided together with the notice 
     required under section 207(g).

     [``SEC. 233. COLLECTION OF PAST-DUE AND OVER-DUE CHILD 
                   SUPPORT

       [``The Secretary shall establish procedures to provide for 
     the collection of past-due or over-due support obligations 
     entered by a tribal court or any other court of competent 
     jurisdiction from the revenue derived from an interests in 
     trust or restricted land.

     [``SEC. 234. EFFECTIVE DATE.

       [``(a) In General.--The provisions of this title shall not 
     apply to the estate of an individual who dies prior to the 
     later of--
       [``(1) the date that is 1 year after the date of enactment 
     of this subtitle; or
       [``(2) the date specified in section 207(g)(5).''.
       [(b) Other Amendments.--The Indian Land Consolidation Act 
     (25 U.S.C. 2201 et seq.) is amended--
       [(1) by inserting after section 202, the following:

              [``Subtitle A--General Land Consolidation'';

       [(2) in section 206 (25 U.S.C. 2205)--
       [(A) in subsection (a)(3)--
       [(i) by striking ``The Secretary'' and inserting the 
     following:
       [``(A) In general.--The Secretary''; and
       [(ii) by adding at the end the following:
       [``(B) Tribal probate codes.--A tribal probate code shall 
     not prevent the devise of an interest in trust or restricted 
     land to non-members of the tribe unless the code--
       [``(i) provides for the renouncing of interests, 
     reservation of life estates, and payment of fair market value 
     in the manner prescribed under subsection (c)(2); and
       [``(ii) does not prohibit the devise of an interest in an 
     allotment to an Indian person if such allotment was 
     originally allotted to the lineal ancestor of the devisee.''; 
     and
       [(B) in subsection (c)(2)--
       [(i) in subparagraph (A)--

       [(I) by striking ``In general.--Paragraph'' and inserting 
     the following:

       [``(A) Nonapplicability to certain interests.--
       [``(i) In general.--Paragraph'';

       [(II) by striking ``if, while'' and inserting the 
     following: ``if--
       [``(I) while'';
       [(III) by striking the period and inserting ``; or'';
       [(IV) by adding at the end thereof the following:
       [``(II) the interest is part of a family farm that is 
     devised to a member of the decedent's family if the devisee 
     agrees that the Indian tribe that exercises 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) Rule of construction.--Nothing in clause (i)(II) 
     shall be construed to prevent or limit the ability of an 
     owner of land to which such clause applies to mortgage such 
     land or to limit the right of the entity holding such a 
     mortgage to foreclose or otherwise enforce such a mortgage 
     agreement pursuant to applicable law.''; and
       [(ii) in subparagraph (B), by striking ``207(a)(6)(B)'' and 
     inserting ``207(a)(6)'';
       [(3) in section 207 (25 U.S.C. 2206)--
       [(A) in subsection (a)(6), by striking subparagraph (A) and 
     inserting the following:
       [``(A) Devise to others.--
       [``(i) In general.--Notwithstanding paragraph (2), an owner 
     of trust or restricted land--

       [``(I) who does not have an Indian spouse or an Indian 
     lineal descendant may devise his

[[Page 23413]]

     or her interests in such land to his or her spouse, lineal 
     descendant, heirs of the first or second degree, or 
     collateral heirs of the first or second degree;
       [``(II) who does not have a spouse or an Indian lineal 
     descendent may devise his or her interests in such land to 
     his or her lineal descendant, heirs of the first or second 
     degree, or collateral heirs of the first or second degree; or
       [``(III) who does not have a spouse or lineal descendant 
     may devise his or her interests in such land to his or her 
     heirs of the first or second degree, or collateral heirs of 
     the first or second degree.

       [``(ii) Rule of construction.--Any devise of an interest in 
     trust or restricted land under clause (i) to a non-Indian 
     will be construed to devise a life estate unless the devise 
     explicitly states that the testator intends for the devisee 
     to take the interest in fee.
       [``(B) Unexercised rights of redemption.--
       [``(i) In general.--This subparagraph (B) shall only apply 
     to interests in trust or restricted land that are held in 
     trust or restricted status as of the date of enactment of the 
     Indian Probate Reform Act of 2001, and interests in any 
     parcel of land, at least a portion of which is in trust or 
     restricted status as of such date of enactment, that is 
     subject to a tax sale, tax foreclosure proceeding, or similar 
     proceeding.
       [``(ii) Exercise of right.--If the owner of such an 
     interest referred to in clause (i) fails or refuses to 
     exercise any right of redemption that is available to that 
     owner under applicable law, the Indian tribe that exercises 
     jurisdiction over the trust or restricted land referred to in 
     such clause may exercise such right of redemption.
       [``(iii) Penalties and assessments.--To the extent 
     permitted under the Constitution of the United States, an 
     Indian tribe acquiring an interest under clause (i) may 
     acquire such an interest without being required to pay--

       [``(I) penalties; or
       [``(II) past due assessments that exceed the fair market 
     value of the interest.''; and

       [(B) in subsection (g)(5), by striking ``this section'' and 
     inserting ``subsections (a) and (b)''; and
       [(4) in section 217 (25 U.S.C. 2216)--
       [(A) 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
       [(B) in subsection (f)--
       [(i) by striking ``After the expiration of the limitation 
     period provided for in subsection (b)(2) and prior'' and 
     inserting ``Prior''; and
       [(ii) by striking ``sold, exchanged, or otherwise conveyed 
     under this section''.
       [(c) Issuance of Patents.--Section 5 of the Act of February 
     8, 1887 (24 Stat. 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, or a tribal probate code approved under 
     such Act and regulations, shall apply thereto after such 
     patents have been executed and delivered:''.]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Indian Probate Reform Act of 
     2002''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) The General Allotment Act of 1887 (commonly known as 
     the `Dawes Act'), which authorized the allotment of Indian 
     reservations, did not allow Indian allotment owners to 
     provide for the testamentary disposition of the land that was 
     allotted to those owners.
       (2) The Dawes Act provided that allotments would descend 
     according to State law of intestate succession based on the 
     location of the allotment.
       (3) The Federal Government's reliance on the State law of 
     intestate succession with respect to the descendency of 
     allotments has resulted in numerous problems affecting Indian 
     tribes, their members, and the Federal Government. Those 
     problems include--
       (A) the increasing 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 of a decedent's interests in trust and 
     restricted land if that land is located within the boundaries 
     of more than 1 State, which application makes probate 
     planning unnecessarily difficult and 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 is unfair to the owners of 
     trust and restricted land and their heirs and devisees and 
     which makes probate planning more difficult.
       (4) Based on the problems identified in paragraph (3), a 
     uniform Federal probate code would likely--
       (A) reduce the number of unnecessary fractionated interests 
     in trust or restricted land;
       (B) facilitate efforts to provide probate planning 
     assistance and advice;
       (C) facilitate inter-tribal efforts to produce tribal 
     probate codes pursuant to 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 subtitle 
     to interests in trust or restricted land.

     SEC. 3. INDIAN PROBATE REFORM.

       (a) Testamentary Disposition.--Subsection (a) of section 
     207 of the Indian Land Consolidation Act (25 U.S.C. 2206(a)) 
     is amended to read as follows:
       ``(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 
     property, or a tribal probate code enacted pursuant to 
     section 206, the owner of an interest in trust or restricted 
     land may devise such an interest to the Indian tribe with 
     jurisdiction over the land so devised, or to any Indian in 
     trust or restricted status or as a passive trust interest (as 
     provided for in section 207A).
       ``(B) Status.--The devise of an interest in trust or 
     restricted land to an Indian under subparagraph (A) shall not 
     alter the status of such an interest as a trust or restricted 
     interest unless the testator provides that the interest is to 
     be held as a passive trust interest.
       ``(2) Devise of trust or restricted land in passive trust 
     or fee status.--
       ``(A) In general.--Any interest in trust or restricted land 
     that is not devised pursuant to paragraph (1) may only be 
     devised--
       ``(i) as a life estate to any non-Indian person (the 
     remainder interest may only be devised pursuant to clause 
     (ii), subparagraph (C), or paragraph (1)(A));
       ``(ii)(I) to the testator's lineal descendant or heir of 
     the 1st or 2nd degree as a passive trust interest (to be 
     known as an `eligible passive trust devisee'); or
       ``(II) if the testator does not have an heir of the 1st or 
     2nd degree or a lineal descendant, to any lineal descendant 
     of a testator's grandparent as a passive trust interest (to 
     be known as an `eligible passive trust devisee'); or
       ``(iii) in fee status as provided for in subparagraph (C).
       ``(B) Presumed devise of passive trust interest.--Any 
     devise to an eligible passive trust devisee, including the 
     devise of a remainder interest from the devise of a life 
     estate under subparagraph (A)(ii), that does not indicate 
     whether the interest is devised as a passive trust interest 
     or a fee interest shall be construed to devise a passive 
     trust interest.
       ``(C) Devise of a fee interest.--Subject to subparagraph 
     (D), any interest in trust or restricted land that is not 
     devised pursuant to paragraph (1), or devised to an eligible 
     passive trust devisee pursuant to subparagraph (A), may be 
     devised to a non-Indian in fee status.
       ``(D) 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 only be devised pursuant to such section 4, 
     subparagraph (A) of this paragraph, or paragraph (1) of this 
     subsection.
       ``(3) Devise of a passive trust interest.--
       ``(A) In general.--The holder of an interest in trust or 
     restricted land that is held as a passive trust interest may 
     devise the interest as a passive trust interest only to--
       ``(i) any Indian or the Indian tribe that exercises 
     jurisdiction over the interest;
       ``(ii) the holder's lineal descendants or heirs of the 
     first or second degree;
       ``(iii) any living descendant of the decedent from whom the 
     holder acquired the interest by devise or descent; and
       ``(iv) any person who owns a pre-existing interest or a 
     passive trust interest in the same parcel of land if the pre-
     existing interest is held in trust or restricted status or in 
     passive trust status.
       ``(B) Ineligible devisees and intestate succession.--A 
     passive trust interest that is devised to a person who is not 
     eligible under subparagraph (A) or that is not disposed of by 
     a valid will shall pass pursuant to the applicable law of 
     intestate succession as provided for in subsection (b).''.
       (b) Intestate Succession.--Subsection (b) of section 207 of 
     the Indian Land Consolidation Act (25 U.S.C. 2206(b)) is 
     amended to read as follows:
       ``(b) Intestate Succession.--
       ``(1) Rules of descent.--
       ``(A) In general.--Subject to any applicable Federal law 
     relating to the devise or descent of trust or restricted 
     property, any interest in trust or restricted land that is 
     not disposed of by a valid will shall--
       ``(i) descend according to a tribal probate code that is 
     approved pursuant to section 206; or
       ``(ii) in the case of an interest in trust or restricted 
     land to which such a code does not apply, be considered an 
     `intestate interest' and descend pursuant to paragraph (2), 
     this Act, and other applicable Federal law.
       ``(B) Classifications.--For purposes of applying this 
     subsection, intestate interests referred to in subparagraph 
     (A)(ii) shall be classified as either--
       ``(i) a devise or inheritance interest (an interest 
     acquired by a decedent through devise or inheritance); or
       ``(ii) an acquired interest (an interest acquired by a 
     decedent by any means other than devise or inheritance and an 
     interest acquired by a decedent through devise or 
     inheritance)--

       ``(I) if the decedent--

       ``(aa) acquired additional undivided interests in the same 
     parcel as the interest, by a means other than devise or 
     inheritance; or

[[Page 23414]]

       ``(bb) acquired land adjoining the parcel of land that 
     includes the interest; or

       ``(II) if the parcel of land that includes the interest 
     includes the decedent's spouse's residence.

       ``(2) Intestate succession.--An interest in trust or 
     restricted land described in paragraph (1)(A)(ii) (an 
     intestate interest) shall descend as provided for in this 
     paragraph:
       ``(A) Surviving indian spouse.--If a decedent is survived 
     by an Indian spouse and the decedent's estate includes--
       ``(i) one or more acquired interests, the decedent's spouse 
     shall receive all such acquired interests;
       ``(ii) one or more devise or inheritance Interests, and--

       ``(I) the decedent is not survived by an Indian heir of the 
     first or second degree, the decedent's spouse shall receive 
     all such devise or inheritance interests; or
       ``(II) the decedent is survived by an Indian heir of the 
     first or second degree, the decedent's devise or inheritance 
     interest shall descend pursuant to paragraph (3)(A).

       ``(B) Surviving non-indian spouse.--If a decedent is 
     survived by a non-Indian spouse and the decedent's estate 
     includes--
       ``(i) one or more acquired interests, the decedent's spouse 
     shall receive a life estate in such acquired interest, and if 
     the decedent is--

       ``(I) survived by an Indian heir of the 1st or 2nd degree, 
     the remainder interests shall descend pursuant to paragraph 
     (3)(A); or
       ``(II) not survived by an Indian heir of the 1st or 2nd 
     degree, the remainder interest shall descend pursuant to 
     paragraph (3)(C); or

       ``(ii) one or more devise or inheritance interests, and the 
     decedent is--

       ``(I) survived by an Indian heir of the 1st or 2nd degree, 
     such devise or inheritance interests shall descend pursuant 
     to paragraph (3)(A); or
       ``(II) not survived by an Indian heir of the 1st or 2nd 
     degree, such devise or inheritance interest shall descend 
     pursuant to paragraph (3)(C).

       ``(C) No surviving spouse.--If the decedent is not survived 
     by a spouse, and the decedent's estate includes one or more 
     acquired interests or one or more devise or inheritance 
     interests and the decedent is--
       ``(i) survived by an Indian heir of the 1st or 2nd degree, 
     the acquired interests or devise or inheritance interests 
     shall descend pursuant to paragraph (3)(A);
       ``(ii) not survived by an Indian heir of the 1st or 2nd 
     degree, the acquired interests or devise or inheritance 
     interests shall descend pursuant to paragraph (3)(C).
       ``(3) Rules applicable to intestate succession.--
       ``(A) Indian heirs.--For purposes of this subsection, 
     Indian heirs of the 1st or 2nd degree shall inherit in the 
     following order:
       ``(i) The Indian children of the decedent, in equal shares, 
     or if one or more of those Indian children do not survive the 
     decedent, such Indian children of the decedent's deceased 
     child shall inherit by right of representation;
       ``(ii) If the decedent has no Indian children or 
     grandchildren (that take by representation under clause (i)), 
     to the decedent's Indian brothers and sisters in equal 
     shares.
       ``(iii) If the decedent has no Indian brothers or sisters, 
     to the decedent's Indian parent or parents.
       ``(B) Right of representation.--For purpose of this 
     subsection, in any case involving the determination of a 
     right of representation--
       ``(i) each interest in trust land shall be equally divided 
     into a number of shares that equals the sum of--

       ``(I) the number of surviving heirs in the nearest degree 
     of kinship; and
       ``(II) the number of deceased persons in that same degree, 
     if any, who left issue who survive the decedent;

       ``(ii) each surviving heir described in clause (i)(I) shall 
     receive 1 share; and
       ``(iii)(I) each deceased person described in clause (i)(II) 
     shall receive 1 share; and
       ``(II) that share shall be divided equally among the 
     surviving issue of the deceased person.
       ``(C) No indian heirs.--
       ``(i) In general.--For purposes of this subsection, if a 
     decedent does not have an Indian heir of the 1st or 2nd 
     degree, an interest shall descend to an Indian collateral 
     heir who is a co-owner of an interest owned by the decedent 
     if any.
       ``(ii) Multiple collateral heirs.--If--

       ``(I) more than one Indian collateral heir owns an interest 
     in an interest referred to in clause (i), the interest shall 
     descend to the collateral heir that owns the largest 
     undivided interest in the parcel; or
       ``(II) two or more collateral heirs own equal shares in an 
     interest referred to in clause (i), the interest passing 
     pursuant to this subsection shall be divided equally between 
     those collateral heirs that own equal shares.

       ``(iii) No ownership.--If none of the decedent's collateral 
     heirs own an interest in the interest referred to in clause 
     (i), the interest shall descend to the Indian tribe that 
     exercises jurisdiction over the parcel of trust or restricted 
     lands involved, subject to clause (iv).
       ``(iv) Acquisition of interest.--Notwithstanding clause 
     (iii), an Indian co-owner of a parcel of trust or restricted 
     land may acquire an interest subject to such clause by paying 
     into the decedent's estate, before the close of the probate 
     of the decedent's estate, the fair market value of the 
     interest in such land. If more than 1 Indian co-owner 
     (including the Indian tribe referred to in clause (iii)) 
     offers to pay for such an interest, the highest bidder shall 
     acquire the interest.
       ``(v) Definition.--In this subparagraph, the term 
     `collateral heir' means the decedent's aunt, uncle, niece, 
     nephew, and first cousin.
       ``(4) Special rule relating to survival.--For purposes of 
     this section, an individual who fails to survive a decedent 
     by at least 120 hours is deemed to have predeceased the 
     decedent for the purposes of intestate succession, and the 
     heirs of the decedent shall be determined accordingly. If it 
     is not established by clear and convincing evidence that an 
     individual who would otherwise be an heir survived the 
     decedent by at least 120 hours, the individual shall be 
     deemed to have failed to survive for the required time-period 
     for the purposes of the preceding sentence.
       ``(5) Pretermitted spouses and children.--
       ``(A) Spouses.--For the purposes of this section, if the 
     surviving spouse of a testator married the testator after the 
     testator executed his or her will, the surviving spouse shall 
     receive the intestate share in trust or restricted land that 
     the spouse would have otherwise received if the testator had 
     died intestate. The preceding sentence shall not apply to an 
     interest in trust or restricted land where--
       ``(i) the will is executed before the date of enactment of 
     this subsection;
       ``(ii) the testator's spouse is a non-Indian and the 
     testator has devised his or her interests in trust or 
     restricted land to an Indian or Indians;
       ``(iii) it appears from the will or other evidence that the 
     will was made in contemplation of the testator's marriage to 
     the surviving spouse;
       ``(iv) the will expresses the intention that it is to be 
     effective notwithstanding any subsequent marriage; or
       ``(v) the testator provided for the spouse by a transfer of 
     funds or property outside of the will and an intent that the 
     transfer be in lieu of a testamentary provision is 
     demonstrated by the testator's statements or is reasonably 
     inferred from the amount of the transfer or other evidence.
       ``(B) Children.--For the purposes of this section, if a 
     testator executed his or her will prior to the birth or 
     adoption of 1 or more children of the testator and the 
     omission is the product of inadvertence rather than an 
     intentional omission, those children shall share in the 
     decedent's intestate interests in trust or restricted land as 
     if the decedent had died intestate. Any person recognized as 
     an heir by virtue of adoption under the Act of July 8, 1940 
     (54 Stat 746), shall be treated as a decedent's child under 
     this section.
       ``(6) Divorce.--
       ``(A) Surviving spouse.--
       ``(i) In general.--For the purposes of this section, an 
     individual who is divorced from the 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. A decree of separation that 
     does not terminate the status of husband and wife shall not 
     be considered a divorce for the purposes of this subsection.
       ``(ii) Rule of construction.--Nothing in clause (i) shall 
     be construed to prevent an entity responsible for 
     adjudicating interests in trust or restricted land from 
     giving force and effect to a property right settlement if one 
     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.--If 
     after executing a will the testator is divorced or the 
     marriage of the testator is annulled, upon 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 shall be deemed to be revoked unless the will 
     expressly provides otherwise. Property that is prevented from 
     passing to a former spouse based on the preceding sentence 
     shall pass as if the former spouse failed to survive the 
     decedent. Any provision of a will that is revoked solely by 
     operation of this paragraph shall be revived by the 
     testator's remarriage to the former spouse.
       ``(7) Notice.--To the extent practicable, the Secretary 
     shall notify the owners of trust and restricted land of the 
     provisions of this Act. The notice may, at the discretion of 
     the Secretary, be provided together with the notice required 
     under section 207(g).''.
       (c) 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) Rule of Construction.--For purposes of subsections 
     (a) and (b), any reference to `applicable Federal law' shall 
     be construed to include Public Law 91-627 (84 Stat. 1874, 
     amending section 7 of the Act of August 9, 1946), Public Law 
     92-377 (86 Stat. 530), and Public Law 92-443 (86 Stat. 744). 
     Nothing in this section shall be construed to amend or alter 
     such Public Laws or any other Federal law that provides for 
     the devise and descent of any trust or restricted lands 
     located on a specific Indian reservation.''.
       (d) Passive Trust Status for Trust or Restricted Land.--The 
     Indian Land Consolidation Act is amended by inserting after 
     section 207 (25 U.S.C. 2206) the following:

     ``SEC. 207A. PASSIVE TRUST STATUS FOR TRUST OR RESTRICTED 
                   LAND.

       ``(a) Passive Trust.--The owner of an interest in trust or 
     restricted land may submit an application to the Secretary 
     requesting that such interest be held in passive trust 
     interest status. Such application may authorize the Secretary 
     to amend or alter any existing lease or agreement with 
     respect to the interest that is the subject of the 
     application.

[[Page 23415]]

       ``(b) Approval.--Upon the approval of an application by the 
     Secretary under subsection (a), an interest in trust or 
     restricted land shall be held as a passive trust interest in 
     accordance with this section.
       ``(c) Requirements.--Except as provided in this section, an 
     interest in trust or restricted land that is held as a 
     passive trust interest under this section--
       ``(1) shall continue to be covered under any applicable 
     tax-exempt status and continue to be subject to any 
     restrictions on alienation until such interest is patented in 
     fee status;
       ``(2) may, without the approval of the Secretary, be--
       ``(A) leased;
       ``(B) mortgaged pursuant to the Act of March 29, 1956 (25 
     U.S.C. 483a); or
       ``(C) sold or conveyed to an Indian, the Indian tribe that 
     exercises jurisdiction over the interest, or a co-owner of an 
     interest in the same parcel of land if the co-owner owns a 
     pre-existing trust, restricted interest, or a passive trust 
     interest in the parcel; and
       ``(3) may be subject to an ordinance or resolution enacted 
     under subsection (d).
       ``(d) Ordinance or Resolution for Removal of Status.--
       ``(1) In general.--The governing body of the Indian tribe 
     that exercises jurisdiction over an interest in trust or 
     restricted land that is held as a passive trust interest in 
     accordance with this section may enact an ordinance or 
     resolution to allow the owner of such an interest to apply to 
     the Secretary for the removal of the trust or restricted 
     status of such portion of such lands that are subject to the 
     tribe's jurisdiction.
       ``(2) Review by secretary.--The Secretary shall review and 
     may approve an ordinance or resolution enacted by an Indian 
     tribe pursuant to paragraph (1) if the Secretary determines 
     that the ordinance or resolution is consistent with this Act 
     and will not increase fractionated ownership of Indian land.
       ``(e) Revenues or Royalties.--
       ``(1) In general.--Except as provided in paragraph (2), the 
     Secretary shall not be responsible for the collection of or 
     accounting for any lease revenues or royalties accruing to an 
     interest held as a passive trust interest by any person under 
     this section.
       ``(2) Exception.--Paragraph (1) shall not apply to an 
     interest described in such paragraph if the Secretary 
     approves an application to have such interest be taken into 
     active trust status on behalf of an Indian or an Indian tribe 
     pursuant to regulations enacted by the Secretary.
       ``(3) Rule of construction.--Nothing in this subsection 
     shall be construed to alter the authority or responsibility 
     of the Secretary, if any, with respect to an interest in 
     trust or restricted land held in active trust status, 
     including an undivided interest within the same parcel of 
     land as an undivided passive trust interest.
       ``(f) Jurisdiction over Passive Trust Interest.--An Indian 
     tribe that exercises jurisdiction over an interest in trust 
     or restricted land that is devised or held as a passive trust 
     interest under this section shall continue to exercise 
     jurisdiction over the land that is held as a passive trust 
     interest and any person holding, leasing, or otherwise using 
     such land shall be deemed to have consented to the 
     jurisdiction of such a tribe with respect to the use of such 
     land, including any impacts associated with any use of such 
     lands.
       ``(g) Probate of Passive Trust Interests.--An interest in 
     trust or restricted land that is held as a passive trust 
     interest under this section shall be subject to probate by 
     the Secretary pursuant to this Act and other laws applicable 
     to the probate of trust or restricted land. Any interested 
     party may file an application to commence the probate of an 
     interest in trust or restricted land held as a passive trust 
     interest.
       ``(h) Regulations.--The Secretary shall promulgate 
     regulations to implement this section.''.
       (e) Partition.--Section 205 of the Indian Land 
     Consolidation Act (25 U.S.C. 2204) is amended by adding at 
     the end the following:
       ``(c) Partition.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, in accordance with this subsection and subject to 
     paragraphs (2), (3), and (4)--
       ``(A) an Indian tribe may apply to the Secretary for the 
     partition of a parcel of land that is--
       ``(i) located within the reservation of the Indian tribe; 
     or
       ``(ii) otherwise under the jurisdiction of the Indian 
     tribe; and
       ``(B) the Secretary may commence a process for partitioning 
     a parcel of land as provided for in paragraphs (2)(B) and 
     (6)(B), if--
       ``(i) an Indian tribe owns an undivided interest in the 
     parcel of land and such tribe consents to the partition;
       ``(ii)(I) the tribe referred to in clause (i) meets the 
     ownership requirement of clauses (i) or (ii) of paragraph 
     (2)(B); or
       ``(II) the Secretary determines that it is reasonable to 
     believe that the partition would be in accordance with 
     paragraph (2)(B)(iii); and
       ``(iii) the tribe referred to in paragraph (3), if any, 
     consents to the partition.

     For purposes of this subsection, the term `eligible Indian 
     tribe' means an Indian tribe described in subparagraph (A) 
     and (B)(i).
       ``(2) Tribal ownership.--A parcel of land may be 
     partitioned under this subsection if, with respect to the 
     eligible Indian tribe involved--
       ``(A) the tribe owns an undivided interest in the parcel of 
     land; and
       ``(B)(i) the tribe owns 50 percent or more of the undivided 
     interest in the parcel;
       ``(ii) the tribe is the owner of the largest quantity of 
     undivided interest in the parcel; or
       ``(iii) the owners of undivided interests equal to at least 
     50 percent of the undivided interests in the parcel 
     (including any undivided interest owned by the tribe) consent 
     or do not object to the partition.
       ``(3) Tribal consent.--A parcel of land that is located 
     within the reservation of an Indian tribe or otherwise under 
     the jurisdiction of an Indian tribe shall be partitioned 
     under this subsection only if the Indian tribe does not 
     object to the partition.
       ``(4) Applicability.--This subsection shall not apply to 
     any parcel of land that is the bona fide residence of any 
     person unless the person consents to the partition in 
     writing.
       ``(5) Partition in kind.--
       ``(A) In general.--The Secretary shall commence the 
     partition process described in subparagraph (B) if--
       ``(i) an eligible Indian tribe applies to partition a 
     parcel of land under this paragraph; and
       ``(ii)(I) the Secretary determines that the Indian tribe 
     meets the applicable ownership requirements of clause (i) or 
     (ii) of paragraph (2)(B); or
       ``(II) the Secretary determines that it is reasonable to 
     believe that the partition would be in accordance with 
     paragraph (2)(B)(iii).
       ``(B) Partition process.--In carrying out any partition, 
     the Secretary shall--
       ``(i) provide, to each owner of any undivided interest in 
     the parcel to be partitioned, through publication or other 
     appropriate means, notice of the proposed partition;
       ``(ii) make available to any interested party a copy of any 
     proposed partition plan submitted by an Indian tribe or 
     proposed by the Secretary; and
       ``(iii) review--

       ``(I) any proposed partition plan submitted by any owner of 
     an undivided interest in the parcel; and
       ``(II) any comments or objections concerning a partition, 
     or any proposed plan of partition, submitted by any owner or 
     any other interested party.

       ``(C) Determination not to partition.--If the Secretary 
     determines that a parcel of land cannot be partitioned in a 
     manner that is fair and equitable to the owners of the 
     parcel, the Secretary shall inform each owner of the parcel 
     of--
       ``(i) the determination of the Secretary; and
       ``(ii) the right of the owner to appeal the determination.
       ``(D) Partition with consent of qualified indian tribe.--If 
     the Secretary determines that a parcel of land may be 
     partitioned in a manner that is fair and equitable to the 
     owners of the parcel, and the Indian tribe meets the 
     applicable ownership requirements under clause (i) or (ii) of 
     paragraph (2)(B), the Secretary shall--
       ``(i) approve a plan of partition;
       ``(ii) provide notice to the owners of the parcel of the 
     determination of the Secretary;
       ``(iii) make a copy of the plan of partition available to 
     each owner of the parcel; and
       ``(iv) inform each owner of the right to appeal the 
     determination of the Secretary to partition the parcel in 
     accordance with the plan.
       ``(E) Partition with consent; implied consent.--If the 
     Secretary determines that a parcel may be partitioned in a 
     manner that is fair and equitable to the owners of the 
     parcel, but the Indian tribe involved does not meet the 
     applicable ownership requirements under clause (i) or (ii) of 
     paragraph (2)(B), the Secretary shall--
       ``(i)(I) make a plan of partition available to the owners 
     of the parcel; and
       ``(II) inform the owners that the parcel will be 
     partitioned in accordance with the plan if the owners of 50 
     percent or more of undivided ownership interest in the parcel 
     either--

       ``(aa) consent to the partition; or
       ``(bb) do not object to the partition by such deadline as 
     may be established by the Secretary;

       ``(ii) if the owners of 50 percent or more of undivided 
     ownership interest in the parcel consent to the partition or 
     do not object by a deadline established by the Secretary 
     under clause (i)(II)(bb), inform the owners of the parcel 
     that--

       ``(I) the plan for partition is final; and
       ``(II) the owners have the right to appeal the 
     determination of the Secretary to partition the parcel; and

       ``(iii) if the owners of 50 percent or more of the 
     undivided ownership interest in the parcel object to the 
     partition, inform the Indian tribe of the objection.
       ``(F) Successive partition plans.--In carrying out 
     subparagraph (E) in accordance with paragraph (2)(B)(iii), 
     the Secretary may, in accordance with subparagraph (E)--
       ``(i) approve 1 or more successive plans of partition; and
       ``(ii) make those plans available to the owners of the 
     parcel.
       ``(G) Plan of partition--A plan of partition approved by 
     the Secretary in accordance with subparagraph (D) or (E)--
       ``(i) may determine that 1 or more of the undivided 
     interests in a parcel are not susceptible to a partition in 
     kind;
       ``(ii) may provide for the sale or exchange of those 
     undivided interests to--

       ``(I) 1 or more of the owners of undivided interests in the 
     parcel; or
       ``(II) the Secretary in accordance with section 213; and

       ``(iii) shall provide that the sale of any undivided 
     interest referred to in clause (ii) shall be

[[Page 23416]]

     for not less than the fair market value of the interest.
       ``(6) Partition by sale.--
       ``(A) In general.--The Secretary shall commence the 
     partition process described in subparagraph (B) if--
       ``(i) an eligible Indian tribe applies to partition a 
     parcel of land under this subsection; and
       ``(ii)(I) the Secretary determines that the Indian tribe 
     meets the applicable ownership requirements of clause (i) or 
     (ii) of paragraph (2)(B); or
       ``(II) the Secretary determines that it is reasonable to 
     believe that the partition would be in accordance with 
     paragraph (2)(B)(iii).
       ``(B) Partition process.--In carrying out any partition of 
     a parcel, the Secretary--
       ``(i) shall conduct a preliminary appraisal of the parcel;
       ``(ii) shall provide, to the owners of the parcel, through 
     publication or other appropriate means--

       ``(I) notice of the application of the Indian tribe to 
     partition the parcel; and
       ``(II) access to the preliminary appraisal conducted in 
     accordance with clause (i);

       ``(iii) shall inform each owner of the parcel of the right 
     to submit to the Secretary comments relating to the 
     preliminary appraisal;
       ``(iv) may, based on comments received under clause (iii), 
     modify the preliminary appraisal or provide for the conduct 
     of a new appraisal; and
       ``(v) shall--

       ``(I) issue a final appraisal for the parcel;
       ``(II) provide to the owners of the parcel and the 
     appropriate Indian tribes access to the final appraisal; and
       ``(III) inform the Indian tribes of the right to appeal the 
     final appraisal.

       ``(C) Purchase by qualified indian tribe.--If an eligible 
     Indian tribe agrees to pay fair market value for a 
     partitioned parcel, as determined by the final appraisal of 
     the parcel issued under subparagraph (B)(v)(I) (including any 
     appraisal issued by the Secretary after an appeal by the 
     Indian tribe under subparagraph (B)(v)(III)), and the Indian 
     tribe meets the applicable ownership requirements of clause 
     (i) or (ii) of paragraph (2)(B), the Secretary shall--
       ``(i) provide to each owner of the parcel notice of the 
     decision of the Indian tribe; and
       ``(ii) inform the owners of the right to appeal the 
     decision (including the right to appeal any final appraisal 
     of the parcel referred to in subparagraph (B)(v)(III)).
       ``(D) Partition with consent; implied consent.--
       ``(i) In general.--If an eligible Indian tribe agrees to 
     pay fair market value for a partitioned parcel, as determined 
     by the final appraisal of the parcel issued under 
     subparagraph (B)(v)(I) (including any appraisal issued by the 
     Secretary after an appeal by the Indian tribe under 
     subparagraph (B)(v)(III)), but does not meet the applicable 
     ownership requirements of clause (i) or (ii) of paragraph 
     (2)(B), the Secretary shall--

       ``(I) provide notice to the owners of the undivided 
     interest in the parcel; and
       ``(II) inform the owners that the parcel will be 
     partitioned by sale unless the partition is opposed by the 
     owners of 50 percent or more of the undivided ownership 
     interest in the parcel.

       ``(ii) Failure to object to partition.--If the owners of 50 
     percent or more of undivided ownership interest in or to a 
     parcel consent to the partition or the parcel, or do not 
     object to the partition by such deadline as may be 
     established by the Secretary, the Secretary shall inform the 
     owners of the parcel of the right to appeal the determination 
     of the Secretary (including the results of the final 
     appraisal issued under subparagraph (B)(v)(I)).
       ``(iii) Objection to partition.--If the owners of 50 
     percent or more of the undivided ownership interest in a 
     parcel object to the partition of the parcel--

       ``(I) the Secretary shall notify the Indian tribe of the 
     objection; and
       ``(II) the Indian tribe and the Secretary may agree to 
     increase the amount offered to purchase the undivided 
     ownership interests in the parcel.

       ``(7) Enforcement.--
       ``(A) In general.--If, with respect to a parcel, a 
     partition in kind is approved under subparagraph (D) or (E) 
     of paragraph (5), or a partition by sale is approved under 
     paragraph (6)(C), and the owner of an interest in or to the 
     parcel fails or refuses to convey the interest to the Indian 
     tribe, the Indian tribe or the United States may--
       ``(i) bring a civil action in the United States district 
     court for the district in which the parcel is located; and
       ``(ii) request the court to issue an appropriate order for 
     the partition in kind, or partition by sale to the Indian 
     tribe, of the parcel.
       ``(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) no civil action brought under this section shall be 
     dismissed, and no relief requested shall be denied, on the 
     ground that the civil action is against the United States or 
     that the United States is an indispensable party.''.

     SEC. 4. OTHER AMENDMENTS.

       (a) Other Amendments.--The Indian Land Consolidation Act 
     (25 U.S.C. 2201 et seq.) is amended--
       (1) in 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 206 (25 U.S.C. 2205)--
       (A) in subsection (a), by striking paragraph (3) and 
     inserting the following:
       ``(3) Tribal probate codes.--The Secretary shall not 
     approve a tribal probate code, or an amendment to such a 
     code, that prevents the devise of an interest in trust or 
     restricted land to--
       ``(A) an Indian lineal descendant of the original allottee; 
     or
       ``(B) to an Indian who is not a member of the tribe that 
     exercises jurisdiction over such an interest;

     unless the code provides for the renouncing of interests (to 
     eligible devisees pursuant to such a code), the opportunity 
     for a devisee who is the testator's spouse or lineal 
     descendant to reserve a life estate, and payment of fair 
     market value in the manner prescribed under subsection 
     (c)(2).'';
       (B) in subsection (c)(1)--
       (i) by striking ``section 207(a)(6)(A)'' and inserting 
     ``sections 207(a)(2)(A)(ii), 207(a)(2)(C), and 207(a)(3)''; 
     and
       (ii) by striking the last sentence and inserting ``The 
     Secretary shall transfer such payments to any person or 
     persons who would have received an interest in land if the 
     interest had not been acquired by the tribe pursuant to this 
     paragraph.''; and
       (C) in subsection (c)(2)--
       (i) in subparagraph (A)--

       (I) by striking ``(A) In general.--Paragraph'' and 
     inserting the following:

       ``(A) Nonapplicability to certain interests.--
       ``(i) In general.--Paragraph'';

       (II) by striking ``if, while'' and inserting the following: 
     ``if--
       ``(I) while'';
       (III) by striking the period and inserting ``; or''; and
       (IV) by adding at the end the following:
       ``(II) the interest is part of a family farm that is 
     devised to a member of the decedent's family if the devisee 
     agrees that the Indian tribe that exercises 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.--Upon the request of an 
     Indian tribe described in clause (i)(II), a restriction 
     relating to the acquisition by such tribe of an interest in 
     the family farm involved shall be recorded as part of the 
     deed relating to the interest involved.
       ``(iii) Rule of construction.--Nothing in clause (i)(II) 
     shall be construed to prevent or limit the ability of an 
     owner of land to which that clause applies to mortgage the 
     land or to limit the right of the entity holding such a 
     mortgage to foreclose or otherwise enforce such a mortgage 
     agreement pursuant to applicable law.
       ``(iv) Definition.--In this paragraph, the term `member of 
     the decedent's family' means the decedent's lineal 
     descendant, a lineal descendant of the grandparent of the 
     decedent, the spouse of any such descendant, or the 
     decedent's spouse.''; and
       (ii) in subparagraph (B), by striking ``subparagraph (A)'' 
     and all that follows through ``207(a)(6)(B)'' and inserting 
     ``paragraph (1)''; and
       (3) in section 207 (25 U.S.C. 2206)--
       (A) in subsection (c)--
       (i) by redesignating paragraph (3) as paragraph (4); and
       (ii) by inserting after paragraph (2) the following:
       ``(3) Alienation of joint tenancy interests.--
       ``(A) In general.--With respect to any interest held as a 
     joint tenancy pursuant to this subsection--
       ``(i) nothing in this subsection shall be construed to 
     alter the ability of the owner of such an interest to convey 
     a life estate in the owner's undivided joint tenancy 
     interest; and
       ``(ii) only the last remaining owner of such an interest 
     may devise or convey more than a life estate in such an 
     interest.
       ``(B) Application of provision.--This paragraph shall not 
     apply to any conveyance, sale, or transfer that is part of an 
     agreement referred to in subsection (e) or to a co-owner of a 
     joint tenancy interest.''; and
       (B) in subsection (g)(5), by striking ``this section'' and 
     inserting ``subsections (a) and (b)'';
       (4) in section 213 (25 U.S.C. 2212)--
       (A) in subsection (a)(2), by striking ``(A) In general.--'' 
     and all that follows through ``subparagraph (A), the 
     Secretary'' and inserting ``The Secretary'';
       (B) in subsection (b)(4), by inserting before the period 
     the following: ``through the use of policies and procedures 
     designed to accommodate the voluntary sale of interests under 
     the pilot program (established by this Act) though the 
     elimination of duplicate conveyance documents, administrative 
     proceedings, and transactions, notwithstanding the existence 
     of any otherwise applicable policy, procedure, or 
     regulation''; and
       (C) in subsection (c)--
       (i) in paragraph (1)(A), by striking ``landowner upon 
     payment'' and all that follows through the period and 
     inserting the following: ``landowner--
       ``(i) upon payment by the Indian landowner of the amount 
     paid for the interest by the Secretary; or
       ``(ii) if the Indian referred to in this subparagraph 
     provides assurance that the purchase price will be paid by 
     pledging revenue from any source, including trust resources, 
     and the Secretary determines that the purchase price will be 
     paid in a timely and efficient manner.'';

[[Page 23417]]

       (ii) in paragraph (1)(B), by inserting ``unless the 
     interest is subject to a foreclosure of a mortgage pursuant 
     to the Act of March 29, 1956 (25 U.S.C. 483a)'' before the 
     period; and
       (iii) in paragraph (3), by striking ``10 percent of more of 
     the undivided interests'' and inserting ``an undivided 
     interest'';
       (5) 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 Pilot Program.--
       ``(1) In general.--The Secretary shall have a lien on any 
     revenue accruing to an interest described under subsection 
     (a) until the Secretary provides for the removal of the lien 
     under paragraph (3) or (4).
       ``(2) Requirements.--Until Secretary removes the lien from 
     an interest of land as provided for in paragraph (1)--
       ``(A) 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;
       ``(B) any revenue derived from any interest acquired by the 
     Secretary pursuant to section 213 shall be paid into the fund 
     created under section 216; and
       ``(C) the Secretary may approve a transaction covered under 
     this section on behalf of a tribe notwithstanding any other 
     provision of law, including section 16 of the Act of June 18, 
     1934 (commonly referred to as the Indian Reorganization Act, 
     (25 U.S.C. 476)).
       ``(3) Findings by secretary.--The Secretary may remove a 
     lien referred to in (1) if the Secretary makes a finding 
     that--
       ``(A) the costs of administering the interest 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 lien.--Pursuant to the consultations 
     referred to in section 213(b)(3), the Secretary shall 
     periodically remove the lien referred to in paragraph (1) 
     from interests in land acquired by the Secretary.'';
       (6) in section 216 (25 U.S.C. 2215)--
       (A) in subsection (a), strike paragraph (2) and insert the 
     following:
       ``(2) collect all revenues received from the lease, permit, 
     or sale of resources from interests acquired under section 
     213 or paid by Indian landowners under section 213.''; and
       (B) in subsection (b)--
       (i) in paragraph (1)--

       (I) in the matter preceding subparagraph (A), by striking 
     ``Subject to paragraph (2), all'' and inserting ``All'';
       (II) in subparagraph (A), by striking ``and'' at the end;
       (III) in subparagraph (B), by striking the period and 
     inserting ``; and''; and
       (IV) by adding at the end the following:

       ``(C) be used to acquire undivided interests on the 
     reservation where the income was derived.''; and
       (ii) by striking paragraph (2) and inserting the following:
       ``(2) Use of funds.--The Secretary may utilize the revenue 
     deposited in the Acquisition Fund under paragraph (1) to 
     acquire some or all of the undivided interests in any parcels 
     of land pursuant to section 205.'';
       (7) in section 217 (25 U.S.C. 2216)--
       (A) 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
       (B) by striking subsection (f) and inserting the following:
       ``(f) Purchase of Land by Tribe.--
       ``(1) In general.--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 that exercises jurisdiction 
     over such a parcel shall have the opportunity to match any 
     offer contained in such application, or where there is no 
     purchase price offered, to acquire the interest in such land 
     by paying the fair market value of such interest.
       ``(2) Exception for family farms.--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 landowner's 
     family (as defined in section 206(c)(2)(A)(iv)) if the tribe 
     that exercises jurisdiction over the land is afforded the 
     opportunity to purchase the interest if the interest is 
     offered for sale to an entity that is not a member of the 
     family of the owner of the land. Section 206(c)(2)(A) shall 
     apply with respect to the recording and mortgaging of the 
     trust or restricted land referred to in the preceding 
     sentence.''; and
       (8) in section 219(b)(1)(A) (25 U.S.C. 2219(b)(1)(A)), by 
     striking ``100'' and inserting ``90''.
       (b) Definition.--
       (1) In general.--Section 202(2) of the Indian Land 
     Consolidation Act (25 U.S.C. 2201(2)) is amended--
       (A) by striking ``means any'' and inserting the following: 
     ``means--
       ``(A) any'';
       (B) by striking ``or any person who has been found to 
     meet'' and inserting the following: ``or
       ``(B) any person who meets''; and
       (C) by striking ``if the Secretary'' and all that follows 
     through the semicolon and inserting ``, except that the 
     Secretary may promulgate regulations to exclude any 
     definition if the Secretary determines that the definition is 
     not consistent with the purposes of this Act, or
       ``(C) 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 as 
     contained in section 1 of the Act of May 18, 1928 (25 U.S.C. 
     651), until otherwise provided by Congress pursuant to 
     section 809(b) of Public Law 94-437 (25 U.S.C. 1679(b));''.
       (2) Effective date.--Any exclusion referred to in the 
     amendment made by paragraph (1)(C) shall apply only to those 
     decedents who die after the Secretary of the Interior 
     promulgates the regulation providing for such exclusion.
       (c) Mortgages and Deeds of Trust.--The Act of March 29, 
     1956 (25 U.S.C. 483a) is amended in the first sentence of 
     subsection (a) by inserting ``(including land owned by any 
     person in passive trust status pursuant to section 207A of 
     the Indian Land Consolidation Act)'' after ``land'' the first 
     place that such appears.
       (d) 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 thereto after those 
     patents have been executed and delivered:''.
       (e) 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 striking ``, in accordance with'' and all that 
     follows through the colon and 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):''.

     SEC. 5. EFFECTIVE DATE.

       This amendment made by this Act shall not apply to the 
     estate of an individual who dies prior to 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)).
  Mr. REID. Mr. President, I ask unanimous consent that the substitute 
amendment be agreed to, the bill, as amended, be read the third time 
and passed, the motion to reconsider be laid upon the table, with no 
intervening action or debate, and that any statements relating to the 
bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee amendment in the nature of a substitute was agreed to.
  The bill (S. 1340), as amended, was read the third time and passed.

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