[Senate Report 106-361]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 714
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-361

======================================================================



 
  TO REDUCE THE FRACTIONATED OWNERSHIP OF INDIAN LANDS, AND FOR OTHER 
                                PURPOSES

                                _______
                                

                 July 26, 2000.--Ordered to be printed

                                _______
                                

   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1586]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1586) to reduce the fractionated ownership of Indian 
lands, and for other purposes, having considered the same, 
reports favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill (as amended) do pass.

                                Purpose

    The purpose of S. 1586 is to amend the Indian Land 
Consolidation Act to provide a comprehensive framework for 
addressing the probate and the fractionated ownership of Indian 
lands in a manner that is consistent with the policy of 
encouraging tribal self-determination.

                               Background

    Federal policy towards tribal governments has vacillated 
between two extremes. Since the founding days of the Republic, 
Federal policy has generally addressed tribal governments 
directly through a government-to-government relationship.\1\ At 
various times since 1789, however, the Federal government has 
treated tribal governments with varying levels of apathy or 
antipathy. The ``allotment era,'' associated with the period 
from 1887 through 1934, is widely regarded as the most 
concerted Federal assault on tribal authority. The cornerstone 
of this policy was the General Allotment Act (GAA) of 1887 \2\ 
or the ``Dawes Act'' as it became known.
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    \1\ This principle was strongly re-affirmed by President Nixon in 
1970, and confirmed by each subsequent Administration. See ``Special 
Message to Congress on Indian Affairs,'' July 8, 1970 and the Executive 
Memorandum, on Government-to-Government Relations with Native American 
Tribal Governments (April 29, 1994).
    \2\ Act of February 8, 1887, 24 Stat. 388, codified at 25 U.S.C. 
Sec. Sec. 331 et seq.
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    Before the allotment policy, Indian tribes bargained with 
the Federal government to cede vast portions of North America 
in exchange for Federal recognition of permanent tribal 
homelands or reservations. Through treaties, acts of Congress, 
or executive orders, these reservations established a 
geographic region set apart as areas where Indians, acting 
though their tribal governments, could ``make their own laws 
and be ruled by them.'' \3\
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    \3\ Williams v. Lee, 358 U.S. 217, 220 (1959). Dussias, 
Geographically-Based and Membership-Based Views of Indian Tribal 
Sovereignty: The Supreme Court's Changing Vision, 55 U. Pitt. L. Rev. 1 
(1993). As Professor Dussias points out, the Supreme Court has moved 
away from historic and treaty-based approaches for analyzing tribal 
jurisdiction based on geography to an approach based on an ``internal'' 
versus ``external'' dichotomy. ``As a result, the Court has expanded or 
contracted tribal sovereignty depending on whether the Court view the 
jurisdiction being asserted by the tribe as involving internal or 
external relations.'' Id. at 49.
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    Through allotment the Federal government reduced collective 
tribal land ownership by patenting 40 to 160 acre parcels of 
reservation land to individual Indians. In some cases, a 
tribe's entire land base was allotted in this manner. At first, 
these allotments were subject to restraints on alienation for a 
twenty-five year period. During that period, tribal members 
could use their individual allotments, but they could not sell 
or encumber these lands. Federal law did notprovide a mechanism 
for the lease or even the testamentary devise of these interests. The 
Dawes Act provided only that these interests were to descend pursuant 
to state intestacy rules. Under these rules, each of a decedent's heirs 
received an equal undivided share of each interest in land owned by the 
decedent. It was not until 1910 that Congress provided that individuals 
could devise these interests.\4\ Because tribal members were unfamiliar 
with European-derived notions of land ownership, few Indians wrote 
wills, making explicit devise of such interests an exception rather 
than the rule. Thus, in each successive generation smaller and smaller 
interests descended to the next generation. As these interests have 
grown smaller, it is not uncommon for an interest holder's connection 
with the land to become more abstract. As far back as 1934 a member of 
Congress made the following observation:
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    \4\ Act of June 25, 1910, 36 Stat. 856, codified at 25 U.S.C. 
Sec. 373.

          ``[O]ne heir may own minute fractional shares in 30 
        or 40 different allotments. The cost of leasing, 
        bookkeeping, and distributing the proceeds in many 
        cases far exceeds the total income. The Indians and the 
        Indian Service personnel are thus trapped in a 
        meaningless system of minute partition in which all 
        thought of the possible use of land to satisfy human 
        needs is lost in a mathematical haze of bookkeeping.'' 
        \5\
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    \5\ Representative Howard, 78 Cong. Rec. 11728 (1934), as quoted in 
Hodel v. Irving, 481 U.S. 704, 708 (1987).

    To this day, these interests continue to descend by 
intestate succession with interests growing increasingly 
smaller.\6\ Even when partition is a legal option, it is rarely 
a practical alternative. As the Bureau of Indian Affairs (BIA) 
reported to the Senate Committee on Interior and Insular 
Affairs: ``As most of the allotments were of not more than 160 
acres of dry farming or grazing lands . . . it will readily be 
seen that it was not feasible to partition the land in kind.'' 
\7\
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    \6\ Indian Programs, Profile of Land Ownership at 12 Reservations, 
GAO, February 1992 (GAO/RCED-92-96BR).
    \7\ Committee Print, 98th Congress 2nd Sess. Indian Heirship Land 
and Survey of the 86th Congress, December 1, 1960, p. 3.
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    Rather than characterizing the allotment policy as an 
assault on tribal authority, its proponents cast allotment as 
an effort to ``elevate'' the status of each individual Indian, 
by replacing communal property with private property and 
supplanting tribal culture by assimilating individual Indians 
into mainstream culture. Whether it was stated or not, however, 
none of these objectives could be separated from the allotment 
policy's fundamental purpose of reducing, then eliminating 
tribal land-holdings , followed by the demise of tribal 
authority.\8\ In fact, allotments were frequently accompanied 
with declarations of ``surplus'' lands, which were then removed 
from tribal ownership. By the 1930's, the combined effect of 
the allotment of Indian lands and the direct government sale of 
reservation lands, the majority of lands reserved to tribes in 
19th century agreements with the United States had passed to 
non-Indian ownership.
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    \8\ Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1 (1995).

          ``The majority of Indian lands passed from native 
        ownership under the allotment policy. Of the 
        approximately 156 million acres of Indian lands in 
        1881, less than 105 million remained by 1890, and 78 
        million by 1900. Indian land holdings were reduced from 
        138 million in 1887 to 48 million in 1934, a loss of 90 
        million acres. Of this, about 27 million acres, or two 
        thirds of the total land allotted, passed from Indian 
        allottees by sale between 1887 and 1934. An additional 
        60 million acres were either ceded outright or sold to 
        non-Indian homesteaders and corporations as `surplus' 
        lands.'' \9\
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    \9\ Cohen's Handbook of Federal Indian Law (1982) p. 138.

    Nevertheless, allotment was only a step towards eliminating 
or reducing the extent of tribal authority. Even when the 
allotment or diminishment of a reservation was undertaken with 
the intent of eventually terminating a tribe's authority over 
its land, the Supreme Court has been reluctant to conclude that 
the mere loss of a tribe's title to the land automatically 
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divests jurisdiction:

          ``Although the Congresses that passed the surplus 
        land acts anticipated the imminent demise of the 
        reservation and, in fact, passed the acts partially to 
        facilitate the process, we have never been willing to 
        extrapolate from this expectation a specific 
        congressional purpose of diminishing reservations with 
        the passage of every surplus land act.'' \10\
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    \10\ Solem v. Bartlett, 465 U.S. 463, 469 (1984). Eight years 
before Justice Marshall expressed this view for a unanimous Supreme 
Court, then-Justice William Rehnquist reached a similar conclusion in 
Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976). In 
Moe, the Court rejected the argument that the fee status of half of the 
land on the reservation worked a de facto diminishment of the 
reservation. Thus, although the General Allotment Act provided for 
state jurisdiction over allottees after their lands were patented to 
them in fee, this did not result in the end of the ``reservation-
system.'' Justice Rehnquist reached this conclusion by relying on the 
Court's recent decision in Mattz v. Arnett, 412 U.S. 481 (1973) and 
``the many complex intervening jurisdictional statutes directed at the 
reach of state laws [in which] Congress by its more modern legislation 
has evinced a clear intent to eschew such [a] ``checkerboard'' approach 
within an existing Indian reservation[.]''
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    Through the Indian Reorganization Act of 1934 (IRA),\11\ 
Congress repudiated the allotment policy and provided measures 
to reverse some of its most nefarious results. As one Federal 
appellate court explained:
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    \11\ Act of June 18, 1934, 48 Stat. 984, codified at 25 U.SC. 
Sec. Sec. 461 et seq.

          One of the purposes of the [Indian] Reorganization 
        Act was to put an end to the allotment system which had 
        resulted in a serious diminution of [the] Indian land 
        base and which, through the process of intestate 
        succession, had resulted in many Indians holding 
        uneconomic fractional interests of the original 
        allotments.\12\
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    \12\ Stevens v. Commissioner of the Internal Revenue Service, 452 
F.2d 741 (9th Cir. 1971).

    The IRA provided tools to reverse the effect of the 
allotment policy. First, the IRA formally ended the policy of 
allotting tribal lands,\13\ indefinitely extended the trust 
period on lands held in trust or restricted status, and ended 
the widespread practice of issuing so-called ``forced-fee 
patents.'' \14\ Second, it directed the Secretary to restore 
tribal lands that the government had declared to be 
``surplus''.\15\ The IRA also authorized the Secretary to 
acquire lands and associated interests in lands.\16\ Although 
the IRA thoroughly repudiated the allotment policy and provided 
some tools to ameliorate its effects, the IRA did not reverse 
all of its repercussions. In fact, even though the allotment 
policy was officially repudiated sixty-five years ago, many 
tribes continue to see significant amounts of land lose its 
trust status because of inheritance by non-Indians and further 
fractionation, which are self-executing effects of the GAA, and 
are much more prevalent than the salutary elements of the IRA, 
which all require some form of administrative approval or 
action.\17\
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    \13\ 25 U.S.C. Sec. 461.
    \14\ 25 U.S.C. Sec. 462. Indefinitely extending the trust period 
prevented tracts of Indian lands from immediately passing out of trust. 
It did not, however, prevent land from passing out of trust when it is 
inherited by a non-Indian heir or when an allotment owner petitions the 
Secretary to terminate the trust status of an allotment or remove the 
restrictions upon alienation. With respect to Indian tribes organized 
pursuant to the IRA, however, allotted lands descend in trust or 
restricted status to the lineal descendants of a member of the tribe.
    \15\ 25 U.S.C. Sec. 463.
    \16\ 25 U.S.C. Sec. 465.
    \17\ In some instances, even those who have inherited interests in 
allotments from Indians have later protested tribal jurisdiction over 
these lands. Brendale v. Confederated Tribes, 492 U.S. 408 (1989). 
Although Mr. Brendale was not a member of the tribe, he protested 
tribal jurisdiction over his on-reservation land, even though he 
inherited the land from an Indian relative. His land ``was originally 
allotted to [his] great aunt * * * [and] passed by inheritance to [his] 
mother and grandfather, who were issued a fee patent in 1963, and then, 
on his mother's death in 1972, to [Mr.] Brendale.'' Thus, Mr. Brendale 
challenged the tribe's right to regulate his activities on reservation 
lands that he inherited from a member of the tribe.
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    In the late 1940's and 1950's, Federal policy swung again 
to an extreme as Congress sought to terminate its relationship 
with specific Indian tribes. During this period, known as the 
``termination era,'' the Federal government made few efforts to 
address the effects of the GAA. The government sought to find 
ways to eliminate the Federal responsibility to tribes and 
their members rather than addressing the problems associated 
with former policies. On most reservations, Indian owners 
continued to inherit smaller and smaller shares of the 
undivided interests in each tract of allotted land. Also, 
interests were not necessarily inherited by residents, or even 
members of the reservation where an allotment was located. As 
it became more difficult to locate dozens of individuals with 
undivided interests in a tract, the Department of Interior 
simply relied on its authority to lease unused lands on behalf 
of their owners, discouraging Indian owners from becoming 
active in the leasing, management, or development of their own 
lands.\18\
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    \18\ The lease revenue from these lands is a source of the 
persistent misconception that Indians receive some form of Federal 
stipend, simply because of their status as Indians.
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    In the 1960's, Congress repudiated the termination policy 
and began laying the foundation for a policy of tribal self-
determination. Fractionated ownership of reservation lands was 
seen as a problem in need of immediate attention. From 1959 
through 1961, House and Senate Committees undertook a 
significant effort to analyze the extent of land 
fractionation.\19\ With the assistance of the Interior 
Department, studies were commissioned to analyze the magnitude 
of the fractionation problem. These studies revealed that at 
least one-half of the 12 million allotted acres were held in 
fractionated ownership, with one-fourth of these lands owned by 
six or more heirs. Nevertheless, it was not until 1983 that 
Congress enacted a statute to address the fractionated 
ownership of Indian lands.
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    \19\ House Committee on Interior and Insular Affairs, Indian 
Heirship Land Study, 86th Cong. 2nd Sess. (Com. Print 1961) and Senate 
Committee on Interior and Insular Affairs, Indian Heirship Land Study, 
86th Cong. 2nd Sess. (Com. Print 1960-1961). Additional hearings were 
held in 1966, see Hearings on H.R. 11113 before the Subcommittee on 
Indian Affairs of the House Committee on Interior and Insular Affairs, 
98th Cong., 2nd Sess. (1966).
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The Indian Land Consolidation Act of 1983 (ILCA), P.L. 97-459 (25 
        U.S.C. Sec. Sec. 2201 et seq.)

    In 1983, Congress enacted the Indian Land Consolidation 
Act, which addressed land fractionation in the following ways:
          1. It authorized Indian tribes to establish land 
        consolidation plans (Sec. 204);
          2. It authorized Indian tribes to acquire an entire 
        parcel of trust land with the consent of the majority 
        of the parcel's owners (Sec. 205);
          3. It authorized the Secretary to approve tribal 
        probate codes, including provisions that limit devise 
        or descent to non-member Indians or non-Indians 
        (Sec. 206); and
          4. It provided that both devise and descent were 
        inapplicable to any fractional interests in trust or 
        restricted land if it was 2% of the total acreage in a 
        tract or smaller and it had not produced $100 in income 
        in the previous year. Such interests were to escheat to 
        the tribe. (Sec. 207)
    Although there was no disagreement about the need for 
legislation to address fractionation, provisions in the ILCA 
were immediately criticized. During the 98th Congress, the 
Senate Select Committee on Indian Affairs held two hearings on 
the 1983 version of the Act.18a Most participants 
directed their criticism at the escheat provision, Sec. 207. In 
response to concerns that Sec. 207 violated the 5th Amendment 
restriction on taking property without compensation, the 
Interior Department responded: ``[A]s a legal point, section 
207 does not take property away from anybody who currently owns 
it. What it does is set criteria for whether the property can 
be further devised[.]'' 19a Thus, the amendments 
approved by Congress in 1984 continued to prevent either the 
devise or descent of many fractional interests.\20\ However, 
the amendment sought to ``loosen[] the restrictive language of 
the Act providing for the escheat of minor fractional interests 
in trust allotted lands or restricted lands.'' \21\ It did this 
by: (1) permitting owners of escheatable interests to devise 
those interests to other owners of a parcel; (2) allowing some 
ineligible devisees to direct interests towards eligible 
individuals; and (3) assessing an interest's value using a 5 
year ``look-back'' at the revenue produced by an interest and 
allowing a beneficiary to rebut the presumption that an 
interest is without significant economic value. The 1984 
amendments also provided that the tribal probate codes adopted 
pursuant to the ILCA could take precedence over the escheat 
provisions of Sec. 207.
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    \18a\ Hearing Before the Select Committee on Indian Affairs, United 
States Senate, Amendments to the Indian Land Consolidation Act, S. 
Hrng. 98-390 (July 26, 1983) and Hearing Before the Select Committee on 
Indian Affairs, United States Senate, Amendments to the Indian Land 
Consolidation Act of 1983, S. Hrng. 98-1054 (July 31, 1984). See also, 
the Hearing Before the Select Committee on Indian Affairs, United 
States Senate, S. 2480-S. 2663 (June 21, 1984) and the document 
submitted for the record by Michael L. Lawson, Heirship: The Indian 
Amoeba.
    \19a\ S. Hrng. 98-390, p. 7. In fact, at the time Congress was 
considering amendments to the ILCA, the constitutionality of the Act 
was affirmed in by a Federal district court in Irving v. Watt, Civ. 83-
5139 (D. S.D. Dec. 15, 1983), and was on appeal before the 8th Circuit. 
The 1984 amendments were signed on October 30, 1984. The 8th Circuit 
did not reverse the district court until March 29, 1985. The Supreme 
Court affirmed the 8th Circuit on May 18, 1987 in Hodel v. Irving, 481 
U.S. 704 (1987).
    \20\ P.L. 98-608, October 30, 1984, 99 Stat. 3171.
    \21\ Sen. Rep. 98-632, p. 7.
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                      Judicial Review of the ILCA

    The challenge to the ILCA came before the Supreme Court at 
a point when its approach to Indian issues was in transition 
from jurisprudence based on Chief Justice Marshall's 19th 
century trilogy of opinions to what has been characterized by 
an leading Indian law scholar as a ``subjectivist trend [that] 
has its roots in a series of cases decided between 1978 and 
1989.'' \22\ In 1987 the Supreme Court found the original 
version of the ILCA unconstitutional. Irving v. Clark, 758 F.2d 
1260 (8th Cir. 1985) aff'd sub nom. Irving v. Hodel, 481 U.S. 
704 (1987). The holding resulted from an alignment between 
property rights proponents on the Court and those who viewed 
Congress' action as insufficiently sensitive to ``unique 
negotiations giving rise to the property rights and 
expectations at issue'' in the case.\23\ As a result, although 
each member of the Court agreed that the ILCA could not 
withstand constitutional scrutiny, there was no consensus on 
the appropriate basis for this result. In a concurring opinion, 
Justice Stevens criticized both the majority opinion and 
Congress, charging that the Congress enacted Sec. 207 of the 
ILCA ``abruptly with [a] lack of explanation.'' He then 
criticized the majority opinion for the ``substantial gap 
[that] separates the claims that the Court allows the[] 
appellees to advance from the rationale that the Court 
ultimately finds persuasive.'' \24\
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    \22\ Getches, Conquering the Cultural Frontier: The New 
Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573 
(1996).
    \23\ Hodel, 481 U.S. at 718, Brennan, Marshall, and Blackmun 
concurring.
    \24\ Hodel at 719, Justices Stevens and White concurring.
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    It is possible that each of Justice Stevens' criticisms can 
be traced to Congress, even those directed at the majority 
opinion. Justice Stevens noted a number of flaws in the 
consideration, drafting, and application of the original 
version of the Act: ``The House returned the bill to the 
Senate, which accepted the House addition without hearings and 
without any floor discussion of Sec. 207.'' In addition he 
noted: ``The text of the Act also does not explain why Congress 
omitted a grace period for consolidation of the fractional 
interests that were to escheat to the tribe pursuant to 
[Sec. 207].''
    Justice Stevens also pointed out an apparent inconsistency 
between the Court's primary rationale for invalidating the 
statute and the case before the Court. According to the Court: 
``[The ILCA] effectively abolishes both descent and devise of 
these property interests even when the passing of the property 
to the heir might result in consolidation of property--as for 
instance when the heir already owns another undivided interest 
in the property.'' But the facts before the Court concerned 
interests that would further fractionate, and none of the 
plaintiffs owned pre-existing interests in the parcels they 
were to inherit.
    Like Justice Stevens, the Court's majority was concerned 
with how the ILCA was drafted. For example, Congress assumed 
Sec. 207 would only ``restrict the descendancy of some of 
thesefractional interests if these interests are so small as to be 
financially meaningless.'' \25\ But the provision included in the ILCA 
relied exclusively on past income generation to assess an interests's 
value. As the Court noted the ILCA's ``income generation test'' fell 
short of separating the valuable from de minimis interests. A better 
mechanism for determining the value of the 2% interests may have 
produced a different result before the Court. Indeed, the Court was 
willing to concede that a number of factors weighed in favor of the 
ILCA. The Court noted that Congress enacted the law ``pursuant to its 
broad authority to regulate the descent and devise of Indian trust land 
[and] . . . as a means of ameliorating, over time, the extreme 
fractionation of certain Indian lands.'' Also, the Court noted that it 
was unlikely that the owners of the interest could point to 
``investment backed expectations'' in property that had been held in 
trust for a century, and which was ``overwhelmingly acquired by gift, 
descent, or devise.'' The Court also noted an ``average reciprocity of 
advantage'' weighed ``weakly'' in favor of the statute. As the Court 
explained:
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    \25\ House Rep. No. 97-908 (Sept. 30, 1982), p 11.

          All members do not own escheatable interests, nor do 
        all owners belong to the Tribe. Nevertheless, there is 
        substantial overlap between the two groups. The owners 
        of escheatable interests often benefit from the escheat 
        of others' fractional interests. Moreover, the whole 
        benefit gained is greater than the sum of the burdens 
        imposed since consolidated lands are more productive 
        than fractionated lands.\26\
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    \26\ Hodel at 715-6.

    The absence of a more discerning test for determining the 
value of each interest created several difficult choices, which 
the Supreme Court obviated when it ruled that Sec. 207 was 
unconstitutional. First, the Court would have to either devise 
a new test to replace ILCA's ``income generation test'' or 
articulate limits on the use of the test. Second, even if the 
Court could fashion a method for determining each fractional 
interest's value, it would then have to set the standard for 
which interests were ``financially meaningless.'' Third, if the 
Court could resolve that difficult question, it would face a 
classical ``slippery slope'' dilemma. For example, if the Court 
decided that interests worth $50 or less could escheat, could 
it provide a principled basis for distinguishing these 
interests from those worth $51? Especially when the majority's 
criticisms are viewed in light of Justice Steven's observation 
of Sec. 207's origins, it is easy to understand why the Court 
did not trouble itself--or the rest of the Federal bench--with 
finding some dividing line where the statute might pass 
constitutional muster. Thus, Justice Stevens was arguably 
correct that the Court was concerned with issues that were not 
necessarily implicated by the facts before the Court in Irving. 
Nevertheless, it is not surprising that the Court did not 
decide the case in a fashion that would have required it to 
resolve these three issues, each of which fall within the 
province of the legislative rather than the judicial branch, 
especially in the field of Indian law.
    The opinion in Irving may be characterized as an invitation 
for Congress to ``go back to the drawing board'' to address 
this issue. For example, Justice O'Connor suggested that 
Congress could achieve most of its objective by simply 
eliminating intestate descent of these interests. Second, 
contrary to the Court's ruling in Allard v. Andrus, 444 U.S. 41 
(1979), the Court rejected the argument that Sec. 207 did not 
``take'' property because the owners of small fractional 
interests were still left with alternatives for both the use 
and disposition of this property. In the Court's words: 
``complex inter vivos transactions such as revocable trusts is 
simply not an adequate substitute'' for the right to devise an 
interest in allotted land.\27\ In other words, the Court did 
not accept two of the premises underlying the ILCA. First, even 
though no specific heir or potential devisee can claim a vested 
right to inherit an interest in property, it does not follow 
that all potential heirs and devisees may be prevented from 
acquiring the interest. Second, an interest may have 
appreciable value, even if it is not producing any income.
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    \27\ Comparing the result in Allard v. Andrus, 444 U.S. 41 (1979) 
with Irving indicates how the Court saw Sec. 207 of the ILCA as a 
flawed means of reaching Congress' objective. In Allard, the Court 
upheld a statute that prohibited any sale of endangered eagle parts as 
a necessary component of a legislative scheme to protect eagles. An 
absolute prohibition on the sale of personal property is at least a 
comparable restriction on an owner's rights than a constraint on the 
right to devise an interest in property. However, to the Court's four 
member plurality, Section 207 significantly constrained property rights 
with no assurance that this would further the government's objective. 
``[Section 207] effectively abolishes both descent and devise of these 
property interests even when the passing of the property to the heir 
might result in consolidation of property.'' Id. at 716. This is not, 
however, the only way to account for the difference between Allard and 
Irving. While the two concurring opinions agree that a taking occurred, 
each offers a sharply divided interpretation of Allard's precedential 
status. Justice Scalia opined that Allard and Irving concerned 
``indistinguishable'' constraints on property interests, thereby 
limiting Allard to its facts. Irving, at 719, Scalia, the Chief 
Justice, and Powell concurring. But Justices Brennan, Marshall, and 
Blackmun responded that Irving did not limit Allard to its facts. 
Relying on the decision of the 8th Circuit, they argued that Irving 
concerned property rights that were the result of ``unique negotiations 
giving rise to * * * property rights * * * [that] make this case the 
unusual one.'' Id. at 718. Throughout its consideration of S. 1586, the 
Committee has been solicitous of each of these opinions. The 
restrictions on devise are drawn narrowly, so each ``stick'' is left in 
the bundle of property rights, even though it may be selectively 
``pruned'' where this is necessary to accomplish the objectives 
described in the bill's Findings and Purposes sections.
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    The 106th Congress has the benefit of several appellate and 
Supreme Court decisions to guide its deliberations on the ILCA. 
However, the 98th Congress had no appellate rulings to guide 
its deliberations. Congress amended the ILCA in 1984, five 
months before the 8th Circuit found the ILCA unconstitutional, 
and more than three years before the Supreme Court affirmed 
that decision, albeit on different grounds. It is not 
surprising that Congress assumed that it could constitutionally 
prevent the devise or descent of some interests in trust lands. 
In fact, the Irving decision itself was not anticipated nor 
embraced by commentators,\28\ who view the case as something of an 
aberration. Also, Congress correctly assumed that courts would be 
highly sympathetic with the statute's objective.\29\ The Irving Court 
conceded: ``The fractionation problem on Indian reservations is 
extraordinary and may call for dramatic action to encourage 
consolidation.''
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    \28\ Chester, Essay: Is the Right to Devise Property 
Constitutionally Protected?--The Strange Case of Hodel v. Irving, 24 
Sw. U.L. Rev. 1195 (1995) and Kornstein, Inheritance: A Constitutional 
Right? 36 Rutgers L. Rev. 741 (1984).
    \29\ In light of the Supreme Court's decision in Northern Cheyenne 
Tribe v. Hollowbreast, 425 U.S. 649 (1976), Congress assumed that it 
had wide latitude to regulate the devise and descent of Indian property 
before it vested in a new owner. In Hollowbreast, the Supreme Court 
addressed mineral interests to allotments on the Norhtern Cheyenne 
Indian Reservation. A 1926 statute conferred the subsurface mineral 
estates to each allotment owner after fifty years. Before fifty years 
elapsed, a new law reserved the mineral rights for the benefit of the 
tribe. The Court upheld the statute and rejected the allottee claims 
that this constituted a taking of their vested property rights.
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    When the original version of the ILCA reached the Court in 
1987, Sec. 207 was analyzed by the Court from three very 
different perspectives. To three Justices, the statute violated 
the 5th Amendment because it was insufficiently solicitous of 
Indian rights.\30\ Four members of the Court found a 5th 
Amendment taking because the ``character of the Government 
regulation'' was ``extraordinary,'' raising concerns that 
upholding the statute would expand the government's authority 
over property rights.\31\ Finally, the statute was improperly 
constructed to please two members of the Court who may have 
been satisfied if the provision had simply conditioned 
retention of the interest upon ``performance of a modest 
statutory duty * * * within a reasonable period of time.'' \32\ 
Unfortunately, the Supreme Court refused to express any view on 
whether the 1984 amendments to the ILCA resolved any of its 
concerns.
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    \30\ Hodel at 719, Justices Brennan, Marshall, and Blackmun 
concurring.
    \31\Hodel, at 704, O'Connor announcing the opinion of the Court 
joined by the Chief Justice and Justices Scalia and Powell.
    \32\ Id. at 719, Justices Stevens and White concurring.
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    Ten years after it refused to express an opinion on the 
1984 amendments to the ILCA, the Supreme Court considered 
whether these modest amendments rehabilitated the ILCA in 
Babbitt v. Youpee, 519 U.S. 234 (1997). With Justice White no 
longer on the Court, only Justice Stevens wrote that the 
amended statute could be constitutionally applied to Mr. 
Youpee's estate. Specifically, the Supreme Court considered the 
following changes to the ILCA, which were enacted in 1984:

          [As] amended section 207 differs from the original in 
        three respects: it looks back five years instead of one 
        to determine the income produced from a small interest, 
        and creates a rebuttable presumption that this income 
        stream will continue; it permits devise of otherwise 
        escheatable interests to persons who already own an 
        interest in the same parcel; and it authorizes tribes 
        to develop their own codes governing the disposition of 
        fractional interests.\33\
---------------------------------------------------------------------------
    \33\ Babbitt v. Youpee, 519 U.S. 234 (1997).

    The Court noted that the Act still relied exclusively on 
the income generated by a parcel to assess its value, which 
could allow valuable interests to escheat if they were not 
producing income. Most important, although the modified statute 
allowed an owner to devise his interest, he could only devise 
it to another owner of an undivided interest in such parcel of 
trust or restricted land.'' this did not go far enough to 
satisfy the standard established in Irving. As the Court 
explained: ``Congress'' creation of an ever-so-slight class of 
individuals equipped to receive fractional interests by devise 
[i.e. existing interest holders] does not suffice, under a fair 
reading of Irving, to rehabilitate the measure.'' Quoting from 
the 9th Circuit Court of Appeal's observation, Justice Ginsburg 
pointed out that the class of current owners ``is unlikely to 
contain any [of the testator's] lineal descendants.'' \34\ 
Finally, the United States did not assert that the 
establishment of tribal code provisions was relevant in Youpee. 
In light of Irving, the result in Youpee is not surprising. In 
fact, several years before Youpee even reached the Court, the 
Department of Interior was soliciting input from tribes and 
individual owners of trust and restricted land on how to 
address land fractionation issues.\35\
---------------------------------------------------------------------------
    \34\ Youpee at 733, quoting Youpee v. Babbitt, 67 F.3d 194, 199-200 
(9th Cir. 1995).
    \35\ Statement of Assistant Secretary for Indian Affairs Kevin 
Gover, Joint Hearing Before the United States Senate Committee on 
Indian Affairs and the House of Representatives Committee on Resources, 
Indian Land Consolidation Amendments; And to Permit Leasing of Oil and 
Gas Rights on Navajo Allotted Lands, Nov. 4, 1999, S. Hrng. 282, p. 83. 
(Describing a consultation process on land consolidation begun in 
1994.)
---------------------------------------------------------------------------

ILCA and treaty rights

    A discussion of the principles drawn from the Supreme 
Court's opinions on the ILCA would not be complete without 
addressing the concurring opinion in Irving authored by Justice 
Brennan, and joined by Justices Marshall and Blackmun. In their 
concurring opinion, these Justices aligned themselves with the 
decision of the 8th Circuit Court of Appeals. While the Court 
of Appeals ruled that a 5th Amendment taking had occurred, they 
based this conclusion on the nature of the property at issue. 
By contrast, the Supreme Court's majority found a taking based 
on the nature of the government's action. As Justice O'Connor 
wrote: ``the character of the Government regulation here is 
extraordinary.'' According to the Court: ``the regulation here 
amounts to virtual abrogation of the right to pass on a certain 
type of property * * * to one's heirs.''
    The Court pointed out that Sec. 207 eliminated an attribute 
of the Anglo-American legal system that has existed ``since 
feudal times.'' Of course allotments did not exist in feudal 
Europe. With limited exceptions, these interests did not exist 
in the United States for more than a century after its 
founding. Thus, looking to European antecedents as a means of 
characterizing these interests is fraught with hazards. 
Furthermore, as Justice's Brennan's concurring opinion 
demonstrates, it might also be unnecessary.\36\
---------------------------------------------------------------------------
    \36\ Obviously, the full nature of an individual's interest in an 
allotment can only be ascertained with reference to Anglo-American 
property for at least three reasons. First, the very notion of 
establishing allotments and the language employed to define these 
property interests originate in Western, rather than indigenous 
culture. Second, these allotments were the result of negotiations 
between a tribe and the United States. Thus, Anglo-American notions of 
property were the intellectual and cultural backdrop for one of the two 
parties and negotiated the relevant agreement. In light of the 
longstanding principle that treaties are to be interpreted in favor of 
Indian tribes and their members, it follows a fortiorari that the 
holders of these rights possess whatever beneficial attributes may be 
gleaned from the Anglo-American culture that chose to create and 
characterize them.
---------------------------------------------------------------------------
    The crux of Justice Brennan's three sentence concurring 
opinion consists of the following statement: ``largely for the 
reasons discussed by the [8th Circuit] Court of Appeals, I am 
of the view that the unique negotiations giving rise to the 
property rights and expectations at issue here make this case 
an unusual one.'' Specifically, the 8th Circuit decision 
referred to the treaty negotiations that led to the creation of 
the allotments at issue and concluded that the allottees 
bargained with the United States and ``obtain[ed] patents to 
protect allotments from future governmental interference'' 
including right to devise their interest.'' Pointing to the 
Supreme Court's decision in Choate v. Trapp, 224 U.S. 665 
(1912), the 8th Circuit explained that treaty provisions can 
give rise to individual rights that may not be altered without 
just compensation. In Choate, the original allottees enjoyed an 
immunity from taxation that could not be altered by Congress 
without payment of just compensation.
    Before the 8th Circuit Court of Appeals the Irving 
plaintiffs claimed that the ILCA violated two interests 
protected by Choate: a promise that interests in allotted land 
would continue to descend through family lines without 
governmental interference and that state law would be used to 
determine the inheritance of allotments. The 8th Circuit 
interpreted treaty provisions as a Federal guarantee that 
``lands allotted to individual Indians could not be taken from 
[the allottees or] their children [i.e. heirs or devisees].'' 
\37\ Thus, the panel of judges agreed that the ILCA ran afoul 
of Choate when it prevented either the devise or descent of an 
interest in allotted land. However, the 8th Circuit explicitly 
rejected the idea that heirs under state law enjoyed any vested 
rights under the treaty. The would-be heirs argued that the 
treaty guarantee the exclusive use of state law of intestacy to 
determine the descent of interests in trust land. As the 8th 
Circuit pointed out, this theory would require courts to find a 
taking if the law authorized the testamentary devise of 
allotted land.\38\ Such a result would hinder Congressional 
authority ``to alter and condition rights that have not yet 
vested in individual Indians[].'' It would also elevate the 
rights of heirs above those of a living allotment owner. 
``[T]he existence of any vested rights in an allottee's heirs 
would mean that an Indian to whom land was allotted would have 
no power to dispose of that property by will.'' \39\
---------------------------------------------------------------------------
    \37\ Irvin v. Clark, 758 F. 2d 1260, 1264, aff'd on different 
grounds sub non. Hodel v. Irving, 481 U.S. 704 (1987).
    \38\ In fact, some of the plaintiffs in Irbing could only assert 
claims under device based on Federal laws enacted after the treaty.
    \39\ Irvin v. Clark, 758 F. 2d 1260, 1265 (1985).
---------------------------------------------------------------------------
    Although the Supreme Court decided Irving on different 
grounds, the continuing vitality of Choate is obvious; treaties 
give rise to interests and rights which may not be eliminated 
without the payment of compensation. Even though the 8th 
Circuit was solicitous of this principle, it would not accept 
an invitation to require the Federal government to compensate 
every would-be heir who was prevented from inheriting because 
of an adjustment in the rules governing the descent and devise 
of allotments. According to the Irving Court, Congress could 
even go so far as ``abolishing the descent of such interests by 
rules of intestacy[.]''

                        The Need for Legislation

    Several decades after adopting a policy of breaking Indian 
reservations through allotments and other means, Congress ended 
and formally repudiated this policy through the Indian 
Reorganization Act of 1934. Congress also sought to reverse the 
effects of the allotment era. The effort to reverse the 
pervasive effects of the allotment policy have achieved only 
limited success. All three branches of the Federal government 
are now actively engaged in an effort to untangle the Gordian 
knot of fractional interests in trust and restricted land. In a 
class-action lawsuit in the United States District Court for 
the District of Colombia brought on behalf of approximately 
300,000 beneficiaries of Individual Indian Money (IIM) trust 
accounts, the government has admitted that it is unable to 
account for the money generated from the use of the (allotted) 
land owned by these individuals:

          It is entirely possible that tens of thousands of IIM 
        trust beneficiaries should be receiving different 
        amounts of money -their own money-- than they do today. 
        Perhaps not. But no one can say, which is the crux of 
        the problem.'' \40\
---------------------------------------------------------------------------
    \40\ Cobell v. Babbitt, 91 F. Supp. 1, 6 (1999).

    In this suit, the plaintiffs seek an accounting of the 
funds held in trust by the government. The suit also involves a 
claim that the government has breached its trust responsibility 
with respect to the management of these assets. The Executive 
Branch of the government has responded to this situation in two 
ways. First, in 1998, the Department of Interior issued its 
first High Level Implementation Plan (HLIP) to reform its trust 
management activities. The HLIP was updated and republished in 
February 2000. Second, on April 3, 2000, the Department issued 
a Federal Register Notice that noticing a series of public 
---------------------------------------------------------------------------
meetings and soliciting comments to:

          (1) Develop a methodology, consistent with 
        Congressional directives, to examine past account 
        activity and discover information appropriate to enable 
        beneficiaries and the Department to evaluate whether 
        income from their trust assets was properly credited, 
        maintained, and distributed to and from their IIM 
        accounts before October 25, 1994;
          (2) Explore approaches to fairly compensate 
        beneficiaries and finally resolve discrepancies.

65 Federal Register 17521 (April 3, 2000)
    The Committee has dedicated substantial time to oversight 
of the Department's trust management activities, concerning the 
Department's compliance with the American Indian Trust Fund 
Management Reform Act, P.L. 103-412 (October 25, 1994). S. 1586 
is the primary legislative contribution to this comprehensive, 
inter-governmental effort to address the three most destructive 
legacies of the allotment era: the continued fractionation of 
trust and restricted lands, and its effect on the Federal 
government's ability to fulfill its trust obligation to Indian 
tribes and their members; the continuing loss of trust lands as 
it is inherited by non-Indians; and the effect of the allotment 
policy on Indian tribes.

                       Summary of the Provisions


Section 1. Short title

    This section provides that the Act may be cited as the 
Indian Land Consolidation Act Amendments of 2000.

Section 2. Findings

    This section describes the context that form the basis for 
S. 1586. Because of the pervasive and multifaceted effects of 
failed government policies, there is no single program that 
will address all of the effects of the allotment. In the 
absence of a ``comprehensive remedial legislation, the number 
of fractional interests will continue to grow.'' A sustained 
Federal effort is needed to fulfill the bill's objectives. As 
the findings note, fractionation resulted from Federal policies 
and ``cannot be solved by Indian tribes, [it] requires a 
solution under Federal law.'' Obviously, however, each tribe 
has the best understanding of how the allotment era has 
affected its land and people. Based on this understanding, each 
tribe should determine how to tailor these programs to address 
its particular needs.

Section 3. Declaration of policy

    In its consideration of S. 1586, the Committee was able to 
draw on decades of evidence addressing the effects of the 
allotment policy on Indian tribes and their members. Based on 
this extensive record, including hearings, reports, 
testimonials, and other evidence, it is clear to the Committee 
that legislation directed at fractionation should accomplish 
certain objectives. These are included as the ``Declaration of 
Policy.'' First, in almost all instances, further fractionation 
will not inure to the benefit of the owners of trust or 
restricted land. The Committee is aware of three instances 
where an Indian landowner may wish to devise an interest in 
trust or restricted land to more than one devisee. First, where 
physical partition between the devisees is an option. Second, 
where the land is being leased and a bequest of these interests 
to two or more devisees is merely a way of dividing the revenue 
among heirs. And third, where the deviser is in a position to 
confer ``use rights'' upon several heirs who are making use of 
the land. In almost every other circumstance, further 
fractionation will only serve to complicate land management 
without conferring proportionate benefits to the undivided 
interest holder. Thus, section 3(1) , establishes the 
prevention of further fractionation as a policy under this act.
    In many cases, the ownership of undivided interests has 
grown so small that an affirmative Federal policy of 
consolidating those interests should be established. This is 
provided in section 3(2) and addressed in numerous sections of 
S. 1586 as reported by the Committee.
    The Supreme Court has interpreted the Indian Reorganization 
Act (IRA) as a repudiation of the allotment policy. In 
addition, the IRA established Federal policies that are 
directed at reversing the effects of the General Allotment Act. 
The next three policies, sections 3 (3),(4), and (5), provide 
that Federal policy is directed at addressing fractionation in 
a manner that enhances tribal sovereignty, promotes tribal 
self-determination, and reverses the effect of the allotment 
policy on Indian tribes.

Section 4. Amendments to the Indian Land Consolidation Act

    This section makes changes to the ILCA. Specifically, two 
sections of the ILCA are amended, section 202 and section 205, 
two sections of the act are replaced, sections 206 and 207, and 
eight new sections are added to the ILCA, sections 213-220.
    Section 202. Definitions.--This section of the ILCA is 
amended by modifying the definition of ``Indian'' and by 
providing a definition for the ``heirs of the first and second 
degree.'' The definition of ``Indian'' tracks existing 
definitions employed in other statutes. For example, under the 
Indian Child Welfare Act of 1978, an unmarried person under 18 
years of age is considered an ``Indian child'' if he or she is 
``eligible for membership in the tribe'' and the biological 
child of a member of a tribe. (25 U.S.C. Sec. 1903(4)). For 
example, a number of tribes recognize membership based on 
lineal descendancy. Since these individuals are ``eligible for 
membership'' upon their birth, they are to be treated as 
Indians for purposes of this Act. The definition recognizes 
that in many instances a person may be eligible for membership 
or enrollment in a tribe before official action is taken to 
memorialize their membership or enrollment.
    Section 205. Purchase of Trust or Restricted or Controlled 
Lands.--A technical amendment tothis section resolves confusion 
over whether interests owned by an Indian tribe should be used in 
determining whether a ``majority'' of the owners of a tract consent to 
tribal acquisition of the parcel. As amended, such tribal interests 
will be included in determining whether a majority of the interest 
holders approve of the transaction. This section is also amended to 
make Secretarial approval unnecessary for tribal acquisition of 
fractional interests pursuant to a tribal land consolidation plan 
approved under section 204.
    Section 206. Tribal Probate Codes.--This section is 
replaced.
    Tribal Probate Codes.--Subsection 206(a). This section 
provides that tribal probate codes may include rules of 
intestate succession and any other provisions that promote the 
policies set forth in Section 3 of the ILCA. The Committee is 
aware that the vast variations in tribal culture and history 
produce differing approaches to probate. The Committee also 
recognizes tribal members are more likely to make use of a 
tribal probate code that conforms to their view of how property 
should be distributed at death. At the same time, the Secretary 
is to ensure that a tribe's probate code is consistent with the 
important policies set out in section 3 of the ILCA. There is 
one explicit limitation on tribal codes with respect to 
inheritance by an Indian who is the descendant of an original 
allottee. In most instances, allotments were made to the 
members of the tribe exercising jurisdiction over a reservation 
and also to unenrolled Indians who qualified for membership in 
that tribe. However, allotments were also made to individuals 
who did not qualify for membership in the tribe where the 
allotment was made. The Indian heirs of these individuals may 
continue to inherit interests in land on these reservations.
    Unlike the existing provisions in section 206, the new 
section allows Indian tribes and the Secretary much greater 
latitude in establishing tribal probate codes, as long as these 
codes do not restrict inheritance by heirs or lineal 
descendants of an original allottee. One approach that several 
Indian tribes have taken, either under specific statutory 
authority or pursuant to Sec. 206 of the ILCA, involves probate 
codes that prevent any further descent or devise of these 
interests except for those who are at least eligible for 
membership in the tribe that exercises jurisdiction over the 
reservation. This approach was sustained against a 
constitutional challenge by a three judge panel in Simmons v. 
Seelatsee, 244 F. Supp. 808 (E.D. Wash. 1965) and affirmed by 
the Supreme Court, 384 U.S. 209 (1966) (per curiam). Similarly, 
pursuant to 25 U.S.C. Sec. 372 and Sec. 373, the Department of 
the Interior has determined that the Secretary may establish a 
preference for tribal acquisition of land. See, 1 Opinions of 
the Solicitor 783 (August 14, 1937). Tribes may also wish to 
adopt codes that provide a similar tribal preference for the 
acquisition of interests devised to non-Indians. Before 
adopting and approving a code, the tribe and the Secretary 
should be sure to provide adequate safeguards, such as the 
payment of compensation to the decedent's estate, to ensure 
that the Secretary's application of the tribal probate code is 
protected from constitutional challenges.
    Secretarial Approval.--Subsection 206(b). Although existing 
law provides for Secretarial approval of tribal probate codes, 
this subsection establishes time-frames for Secretarial 
approval of proposed codes and amendments. The bill also 
provides that the codes and amendments become effective upon 
the expiration of these time-frames to the extent they are 
consistent with Federal law. This will allow the codes to 
become operational even if the BIA is unable to formally 
approve the codes. The requirement of Secretarial review is 
included because the Department is responsible for applying 
these probate codes to specific cases. This review is intended 
to ensure that inconsistencies or conflicts between the codes 
and Federal laws will be resolved before the code is widely 
circulated and used for probate planning. Under this section, 
the Secretary must either approve a tribal probate code or 
disapprove the code and provide a written explanation of the 
reasons for disapproval. If he fails to do either, the code 
becomes effective after 180 days. The Secretary is to look to 
the objectives of the ILCA, as specified in section 3, in 
deciding whether to approve the tribe's proposed code or any 
amendments. If the Secretary does not approve a proposed tribal 
probate code, he must provide a written explanation of this 
decision. Although a tribe may decide to rescind its code, no 
such rescission will become effective for 180 days. This will 
provide an opportunity for those affected by the codes to make 
any necessary adjustments to their estate plans.
    Authority Available to Indian Tribes.--Section 206(c). 
Existing law authorizes Indian tribes to enact a tribal probate 
code that prevents non-Indians from acquiring interests in 
trust or restricted lands. Such codes must provide for 
appropriate compensation to the decedent's estate. In light of 
the Federal of policy preserving the trust status of Indian 
lands, the Secretary would presumably approve at least those 
sections of a tribal probate code. S. 1586 eliminates these 
requirements by providing that Indian tribes are not required 
to enact a probate code to exercise the authority to acquire 
allotment interests before they are inherited by non-Indians. 
The tribe must still pay the value of the interest into a 
decedent's estate, but the Secretary may provide a tribe with 
up to two years to pay for the interest. The effect of this 
provision on non-Indian heirs and devisees is tempered in 
several ways. First, S. 1586 allows an ineligible (non-Indian) 
heir or devisee to prevent tribal acquisition by devising the 
interest to an Indian. Second, a non-Indian heir or devisee may 
convey the interest to an Indian person and retain a life 
estate in the interest. Further, the person reserving the life 
estate may retain the right to receive the income derived from 
the share of the interest.
    Use of Proposed Findings.--Subsection 206(d). This 
provision provides that the Secretary may provide for the use 
of findings of fact and conclusions of law, as rendered by 
tribal justice systems, as proposed findings in the 
adjudication of probate proceedings involving trust resources. 
In the Committee's view, the Department of the Interior may 
find some assistance in addressing its significant backlog of 
pending cases to be probated by making use of decisions 
rendered by tribal justice systems in their adjudication of 
non-trust assets. Tribal judges are as capable as their state 
and Federal counterparts to determine the heirs and the 
distribution of the property of a decedent. To the extent that 
tribal probate codes provide the applicable rules for probating 
an estate, tribal courts are the more appropriate institution.
    Section 207. Descent and Distribution, Escheat.--This 
section is replaced. Throughout S. 1586, and in this section in 
particular, Congress is ``acting pursuant to its broad 
authority to regulate the descent and devise of Indian trust 
lands.'' Hodel v. Irving, 481 U.S. 704, 712 (1987), citing 
Jefferson v.Fink, 247 U.S. 288 (1918).
    Testamentary Disposition.--Subsection 207(a). This section 
addresses the loss of trust or restricted land when it is 
inherited by non-Indians. Under this bill, a testator may 
devise an interest in trust or restricted land to an Indian. If 
the testator devises an interest to a non-Indian, the non-
Indian devisee receives a ``non-Indian estate in Indian land,'' 
an interest described in subsection 207(c). To address 
fractionation, in the absence of express language to the 
contrary, the devise of an interest in the same parcel of trust 
or restricted land is presumed to create a joint tenancy with 
the right of survivorship.
    Intestate Succession.--Subsection 207(b). With respect to 
intestate succession of interests in trust or restricted land, 
section 207(b) provides that only heirs of the first or second 
degree will receive these interests by intestate devise. In 
addition, non-Indian spouses and heirs may only receive a non-
Indian estate in Indian land in such interests.
    Joint tenancy.--Sec. 207(b)(3). As with the subsection in 
testamentary devise, interests descending through intestate 
succession may be held as a joint tenancy with the right of 
survivorship. Specifically, interests of 5% or less that 
descend to more than one heir are held as joint tenancies. The 
Committee is aware that in some instances a decedent's heirs 
will include both Indian and non-Indian heirs. When this 
occurs, each of the Indian joint tenants will hold the 
equitable interest in the trust or restricted land while the 
non-Indians hold only a non-Indian estate in Indian land. As a 
result, whether the joint tenancy will pass as a full equitable 
interest or a non-Indian estate in Indian land depends on 
whether each heir of the last surviving joint tenant's heir is 
an Indian or non-Indian. A non-Indian survivor can devise the 
equitable estate to an Indian heir. Also, a full equitable 
interest will descend to a decedent's Indian spouse or Indian 
1st or 2nd degree heirs. If the non-Indian survivor wishes to 
devise the interest to a non-Indian, he may devise such 
interest as a non-Indian estate in Indian land.
    Non-Indian Estate in Indian Land.--Subsection 207(c). This 
subsection balances a number of interests. S. 1586 seeks to 
encourage the testamentary devise of interests in trust or 
restricted lands by allowing owners to devise their interest to 
any person. If these interests could be devised to non-Indians, 
it would defeat the policy of preventing land from passing out 
of trust wherever possible. Under subsection 207(c), a non-
Indian devisee will receive an interest similar to a life 
estate. The ``non-Indian estate in Indian land'' includes more 
rights than those associated with a life estate. For example, 
the interest holder will have access to some of the revenue 
that is traditionally reserved for the holder of the remainder 
of the interest. In addition, the holder of a non-Indian estate 
has more control over the disposition of the remainder interest 
than the holder of a life estate. If the non-Indian estate 
holder devises or conveys the interest to an Indian, the Indian 
will receive the full equitable interest that was owned by the 
last Indian owner of the property. (This section refers to the 
equitable interest as the ``decedent's interest,'' which is 
defined as ``the equitable title held by the last Indian owner 
of an interest in trust or restricted land.'') However, a non-
Indian estate holder may only devise another non-Indian estate 
in Indian land to a non-Indian devisee.
    If the owner of a ``non-Indian estate in Indian land'' dies 
intestate with Indian heirs of the first or second degree, the 
equitable interest will descend to these Indian heirs. For 
example, where an Indian husband is married to a non-Indian 
wife and they have several children who qualify for membership 
in a tribe and the Indian husband/father dies, some or all of 
his interest in trust or restricted lands may be inherited by 
his non-Indian spouse, and she will only receive a non-Indian 
estate in Indian land. If she then dies intestate with children 
who qualify for membership in an Indian tribe, these children 
will inherit a full equitable interest--in trust--in the 
interest owned by their Indian father and then inherited by 
their non-Indian mother. To continue this example, if the 
holder of a ``non-Indian estate in Indian land'' dies without 
any Indian heirs of the first or second degree, and without 
having either devised or conveyed the interest, the equitable 
interest in the trust or restricted land will escheat to the 
tribe that exercises jurisdiction over the land. (207(c)(2)) 
Before the interest escheats, however, the Indian co-owners of 
the parcel may acquire the interest. (207(c)(3)) Also, the 
Secretary may acquire any interest devised to a non-Indian.
    With respect to interests that are located off-reservation, 
as long as the interest is devised to or inherited by an 
Indian, including a person who is at least eligible for 
membership in an Indian tribe, the interest will pass in trust. 
(Sec. 207(c)(6)) If the heir or devisee is not eligible for 
membership in a tribe, the interest will pass in fee to the 
non-Indian. Because this provision only applies outside of 
Indian reservations, this provision includes a very broad 
definition for ``Indian reservation'' to limit the application 
of this provision, thereby ensuring that this provision will 
not apply to those interests in trust or restricted lands that 
are located in an area where a tribe has a basis for re-
establishing its land base.
    Approval of Agreements.--207(d) Under present law, the 
probate of an intestate Indian decedent who dies with an estate 
containing five interests in trust or restricted land will 
generally result in each heir taking a one-fifth interest in 
each of the five parcels. In many instances there is no reason 
to believe that a decedent was either aware of this particular 
division of property or that he intended this result. 
Nevertheless, undivided co-tenancy with no right of 
survivorship is generally the result of intestate probate of an 
estate containing trust or restricted land. Subsection (d) of 
section 207 will provide the Department with an important 
opportunity to prevent any further needless fractionation. 
Under this provision, the official authorized to adjudicate the 
probate of trust lands will also have the authority to approve 
agreements involving the exchange of trust and restricted lands 
between a decedent's heirs and devisees. For example, when an 
Indian dies with an estate containing five interests in trust 
or restricted land, each of the heirs may agree to receive the 
decedent's full interest in one of the five parcels and 
disclaim his or her interest in the remaining parcels. Such 
agreements will allow each of the beneficiaries to decide for 
himself or herself which part of the estate is most valuable to 
them. It will also help reduce the needless, unintended, or 
unnecessary incidents of fractionation.
    The Secretary is authorized to promulgate regulations for 
implementing this provision. Such regulations may provide for 
the appointment of guardians to select interests on behalf of 
minors or those adjudged incompetent. Such regulations may also 
address how this provision may be implemented with respect to 
heirs that cannot be located.
    Estate Planning Assistance.--207(e) Probate may be 
characterized as the process of fulfilling the wishes of a 
decedent with respect to his or her estate. Obviously it is 
easiest to fulfill these wishes if the decedent leaves a 
document, such as a will, with explicit guidance concerning the 
division of his or her estate. In addition, the record before 
the Committee includes testimony urging the Federal government 
to provide greater assistance in the drafting of wills and 
similar testamentary devises. The Committee agrees that a 
comprehensive legislative approach towards the probate of trust 
or restricted lands should explicitly authorize estate planning 
assistance. The Committee recognizes that this estate planning 
assistance program must compete with the ongoing multi-faceted 
effort to reform the Department's trust management programs; 
and that other Congressional committees, as well as the 
Executive Branch of the Federal government, have a role in 
deciding which priorities and programs are funded, and at what 
levels. Nevertheless, the Committee believes that as the 
Executive and Legislative Branches of government are 
considering options for reducing ``needless'' or unintended 
fractionation of trust or restricted lands, both branches 
should consider estate planning assistance along with the other 
pilot projects being pursued, including the program established 
by section 213.
    To encourage innovative approaches towards estate planning 
assistance, S. 1586 includes provisions that authorize the 
Secretary to enter into contracts with other entities to 
establish or foster estate planning assistance in Indian 
country.
    Notification.--Subsection 207(f) directs the Secretary to 
provide notice of the effects of the Indian Land Consolidation 
Act Amendments of 2000 on Indian landowners. The notice is also 
to provide information on estate planning options and, where 
available, opportunities for estate planning assistance. The 
Secretary is to certify that he has provided notice as required 
by this Act. Most of the provisions of section 207 will not 
become effective until one year after the Secretary provides 
this notice and certifies that it was provided.
    The amendment approved by the Committee amends the ILCA by 
adding eight new sections to the ILCA, sections 213-220.
    Pilot Program.--Section 213. This section establishes a 
pilot program for the acquisition of fractional interests. A 
similar acquisition project was established by the Fiscal Year 
2000 Appropriation for the Interior Department. Under this 
section, the Secretary will acquire interests in trust or 
restricted lands from their current owners. In almost all 
respects, the Secretary will hold the interest he acquires in 
trust for the tribe just like other land held in trust. 
However, the Secretary is to retain any income attributed to 
the interest until he collects the purchase price paid for the 
interest. After being reimbursed from such revenues or if the 
Secretary determines that it is unlikely the interest will 
produce enough revenue to repay the government, the interest 
will be treated like any other interest held in trust by the 
United States for the tribe.
    The Interior Department testified that this pilot program 
will significantly reduce the costs associated with its 
responsibility to keep track of undivided fractional interests 
while fulfilling other Federal objectives. However, Indian 
tribes and Indian landowners have expressed concern that the 
program may become increasingly ``bureaucratic,'' with 
resources directed at administering the program and not in 
acquiring land. They also point to some situations, 
particularly in the great plains, where revenue derived from 
lands acquired with Department of Agriculture loans is 
inadequate to repay these loans. These critics of this pilot 
project argue that the proceeds from this program may produce 
greater benefit if they were directed at other elements of the 
land consolidation effort, including estate planning, tribal 
probate code drafting, or a loan program to assist individuals 
and tribes who wish to acquire fractional interests. In 
response to these concerns, the bill reported by the Committee 
makes this program a three year pilot project. This will ensure 
that those concerned with land consolidation, including the 
Department, will continue to consider alternatives to this 
project. The Secretary is required to report back to the 
Congress on the feasibility of expanding the program to include 
individuals and tribes.
    Requirements.--Section 213(b). As approved by the Committee 
S. 1586 directs the Secretary to consider the policies of the 
ILCA in implementing the program. In addition, the program is 
intended to give priority to the acquisition of interests of 2% 
or less. The Secretary is to consult with the tribal government 
and, where applicable, coordinate with a tribe's land 
acquisition program. The Secretary may enter into agreements 
with a tribe to implement parts of the program; however, under 
subsection (d), these contracts are not governed by the 
provisions of the Indian Self-Determination and Education 
Assistance Act. The Committee recognizes that some Indian 
tribes manage most or all of the administrative elements of the 
real estate program on their reservations. In these instances, 
the Committee assumes that the Secretary will prefer to 
contract with the tribe to provide some or most of the elements 
of the acquisition program. For example, the Secretary may 
contract with the tribe to provide valuations of allotments. 
Because the growing number of fractional interests is 
interfering with many of the Department of Interior's programs 
and is seriously hindering the Federal government's ability to 
discharge its trust obligation, the Committee believes it is 
best to commit the resources appropriated for this program 
directly to the acquisition of fractional interests. By making 
the Self-Determination Act inapplicable to this program, the 
Secretary will have more discretion to decide where to acquire 
interests. This will also focus resources more directly on the 
acquisition program.
    Sale of Interest to Landowners.--Section 213(c). S. 1586 
attempts to balance the interest of Indian tribes, who wish to 
reconstitute their land-holdings, with Indian owners of trust 
or restricted lands, who may wish to consolidate the interests 
they own in trust or restricted lands. This subsection allows 
Indian co-owners to obtain the fractional interests acquired by 
the Secretary under the pilot project. In order to obtain such 
interests, the Indian co-owner must own 5% or more of the 
undivided interests in a parcel. Where a tribe is already 
trying to obtain all of the undivided interests in a parcel, a 
tribe must approve a transaction if it already owns 10% or more 
of the undivided interest in a parcel. Because tribes might 
object to a provision that allows private individuals to 
acquire such interests on the grounds that the pilot project 
will result in land passing out of trust, the Secretary is not 
authorized to approve applications to terminate the trust 
status or remove restrictions from a parcel acquired under this 
subsection.
    Administration of Acquired Fractional Interests.--Section 
214. This new section provides authority for the use and 
leasing of interests acquired pursuant to the acquisition 
program. Subsection (a) provides that an Indian tribe may 
approve leases for any interest acquired by the Secretary under 
section 213. In general, the tribe will be one of many joint 
owners in each of the parcels acquired by the Secretary 
pursuant to section 213. Subsection (b) provides that until the 
price paid for the interest has been recovered, all of the 
revenue attributed to the parcel shall be paid to the fund 
established by section 216. Also, the provision of the ILCA 
that provides for majority approval of leases, section 220(b), 
will apply to interests held for the tribe by the Secretary. 
Subsection (c) provides that the use of lands where a tribe 
possesses a fractional interest under section 213 does not make 
the tribe a party to the lease. This section employs very broad 
language to eliminate any argument that either a tribe's 
immunity, or its other governmental authority is altered by a 
lease that the Secretary approves on behalf of the tribe.
    In some instances, it will be more efficient for the 
Secretary to immediately transfer the interest to the tribe. 
For example, if the interest is producing little or no income, 
it will probably be more cost-effective to immediately transfer 
the interest to the tribe that exercises jurisdiction over the 
parcel. This will save the Federal government from maintaining 
an account for the tribal interest. Similarly, changes in the 
value of land or commodities associated with the land may alter 
the economic assumptions made when the land was first acquired. 
In either of these circumstances, subsection (d) directs the 
Secretary to cease administering the interest under the 
acquisition program and transfer the interest directly to the 
tribe. This provision, section 207(b)(2), is included to 
address the Committee's concern that the BIA should not incur 
costs associated with carrying an interest on the books when it 
becomes clear that these costs will exceed the amount it is 
trying to recoup.
    Establishing Fair Market Value.--Section 215. As the 
Committee has considered options for facilitating transactions 
involving trust and restricted lands, it is clear that the 
costs associated with appraising lands is one of the most 
significant impediments to the consolidation of these 
interests. For example, if an Indian wishes to exchange his 
interest in land with another Indian, each of the parcels of 
land may be appraised to ensure that Secretary is not violating 
his trust obligation by approving the transaction. Such 
appraisals may cost hundreds or over one thousand dollars for 
each parcel, even if each interest to be exchanged is worth 
only a fraction of that cost. If the Secretary had to acquire a 
full appraisal before acquiring each interest under Section 
213, the cost of appraisals would probably exceed the cost of 
the acquired interests. To address this concern, section 215 
allows the Secretary to employ a system based on an appropriate 
geographical unit for establishing the fair market value of 
lands or interests in land. This section does not give the 
Secretary license to adopt arbitrary land values based on 
speculation; obviously the procedures established by the 
Secretary must be rational and not produce arbitrary results. 
The Committee notes that the Department is actively engaged in 
an effort to update and modernize its processes for appraising 
and evaluating Indian lands. The Committee believes this 
process will assist its ability to establish the processes 
authorized by Section 215.
    Section 216. Acquisition Fund.--This fund will be the 
depository for money appropriated for the acquisition of lands 
under Section 213. Funds will also be deposited into the fund 
from the proceeds from any lease or use of allotted lands, or 
their sale to Indian co-owners. This section also provides that 
the Secretary will not deposit funds into the fund from an 
interest that exceeds the amount paid for the interest by the 
Secretary.
            Section 217. Trust and restricted land transactions
    Policy.--Subsection 217(a). The first subsection of this 
section states the Federal policy of consolidating interests in 
Indian lands. Such transactions include not only transactions 
involving Indians and Indian tribes, but also between 
individual Indians. This statement is important because the 
Committee believes that transactions between individual 
Indians, as well as transactions between Indians and tribal 
governments, can and should play a part in reconstituting the 
Indian land base. Such transactions should not be limited to 
interests in trust or restricted land owned by those 
individuals meeting the definition of Indian. To the extent 
that interests are still held in trust, this policy supports 
their acquisition by any person meeting the definition of 
Indian.
    Sales and Exchanges.--Subsection 217(b). This subsection 
facilitates transactions by eliminating the requirement for an 
appraisal of an interest. Instead, Indians selling or 
exchanging an interest in land must be provided with an 
estimate of the value of the interest. In addition, a sale or 
exchange may be made for less than fair market value. The 
Committee recognizes that transactions involving allotted lands 
may involve a number of intangible factors. For example, 
individuals may own interests on reservations that are a great 
distance from where they reside. Such individuals may be 
willing to sell or exchange these interests in order to acquire 
reservation lands near their home. Because the Secretary has 
general responsibility to obtain the best value for 
transactions involving trust lands, he may refuse to approve a 
transaction based solely on the disparity between the land's 
appraised value and the return consideration. The Secretary 
would still have the authority to disapprove questionable 
transactions. Nevertheless, the Secretary would have protection 
from breach of trust claims for transactions that are 
consistent with this Section. In order to ensure that this 
subsection does not result in the dissipation of trust lands, 
interests acquired under its provisions may not be taken out of 
trust for five years after a conveyance is approved.
    Acquisition of Interest by Secretary.--Subsection 217(c) 
addresses situations where some or most of a parcel is held in 
trust, but some undivided interests in the same parcel have 
passed out of trust. In these situations, when the land is 
located within a reservation, the Secretary is to take these 
lands into trust forthwith. These provisions will facilitate 
greater consolidation and assist in the administration of 
interests in trust and restricted lands. In particular, having 
on-reservation parcels that are only partially held in trust 
interferes with a tribe's ability to consolidate such interests 
and each Indian owner's ability to exchange interests in order 
to consolidate their holdings. Since these undivided interests 
in these lands are already in trust and located within a 
reservation, implementing this provision should be relatively 
simple.Subsection (d) ensures that the trust status of trust or 
restricted lands is not affected by the sale or exchange.
    Land Ownership Information.--Subsection 217(e) addresses 
another major impediment to transactions directed at 
consolidating interests in trust or restricted lands. In most 
instances, the Committee assumes that the BIA will readily 
provide information about land ownership, especially when the 
request comes from an Indian who is seeking information about 
land on the reservation where he or she resides, is a member, 
owns interests, or has some other connection. This subsection 
will eliminate any ambiguity or confusion about the Secretary's 
authority to provide such information.
    Section 218. Reports to Congress.--Because of the urgency 
that Congress attributes to the problem of land fractionation, 
the Committee will closely monitor the implementation of the 
ILCA. The reporting requirements of this section will assist 
Congress in accomplishing this objective. First, the Secretary 
will report to Congress on the number of fractional interests 
acquired under the ILCA and the financial savings associated 
with those interests. In addition, the findings required by 
this section will assist the Congress in deciding whether and 
how the program may be extended to individuals and Indian 
tribes.
    Section 219. Approval of Leases, Rights-of-Way, and Sales 
of Natural Resources.--This provision follows from a number of 
recent legislative efforts to make interests in trust and 
restricted lands more valuable and productive by eliminating 
the implication that the consent of each undivided interest 
holder is required for the Secretary to approve a lease, 
agreement, or the sale of natural resources associated with 
allotted lands. Such legislation is necessary because 19th and 
early 20th centuries statutes refer to the lease or use of 
these lands upon the approval of ``the owner.'' This raises the 
question of whether this requires the approval of each 
undivided interest holder, even when these individuals number 
in the thousands. Potential lessees are reluctant to incur the 
costs associated with obtaining the approval of these 
individuals when it is possible that a lease can be stymied by 
one owner of a small undivided interest. The Committee intends 
for this provision to apply to any land that is held in trust 
for individual Indians.
    An increasing number of statutes now provide that the 
approval of each interest owner is not required for the 
Secretary to approve the lease or use of allotted lands. These 
statutes include P.L. 105-188, as amended, and the American 
Indian Agricultural Resources Management Act, 25 U.S.C. 
Sec. 3701 et seq. As introduced, S. 1586 tracked these laws by 
providing for majority approval of leases. Because the BIA has 
yet to fully implement the majority lease approval provision 
contained within the Indian Agriculture Act, however, the 
Committee was responsive to recommendations that the bill 
should employ a more graduated approach. Thus, as approved by 
the Committee, the amendment requires unanimous approval of 
parcels owned by 5 or fewer interest holders; 80% approval of 
parcels owned by 6-10 owners; 60% for 11-19 owners; and 
majority approval of parcels owned by 20 or more owners. To 
assist the Department in implementing this Act, this section 
provides rules for determining when the number of owners and 
their undivided ownership interests are ``fixed'' for purposes 
of this provision. Also, authority is given for the Secretary 
to consent on behalf of certain heirs who have not been 
determined or located.
    Subsection (d) provides that a lease approved under this 
section is binding on each of the parties. However, an Indian 
tribe that owns a fractional interest shall not be treated as a 
party to the lease or agreement. Also, no such lease, 
agreement, and no part of this section shall be construed to 
affect the sovereignty of the tribe. The broad reference to 
each tribe's sovereignty is intended to ensure that the 
provision is not interpreted to apply to a narrow segment of 
tribal authority, i.e. the tribe's immunity from suit. Instead, 
this provision contemplates the full array of tribal sovereign 
attributes. The Secretary will distribute the proceeds from the 
lease or use of each parcel based on the proportionate 
ownership of each interest holder.
    Subsection (f) ensures that the sliding scale standard for 
approving non-unanimous leases does not apply to existing or 
future laws that provide specific standards for the percentage 
of ownership interests that must approve a lease or agreement.
    Section 220. Application to Alaska.--This section makes the 
ILCA inapplicable to allotments made in Alaska. Neither the 
Department, Congress, nor academic entities have studied the 
issues surrounding Alaskan allotments. Thus, it would be 
premature to have the ILCA apply to these allotments.

Section 5. Judicial review

    The notice requirements and grace periods included in the 
amendment approved by the Committee will provide the owners of 
undivided interests with the opportunity to alter their estate 
plans in response to the new law. It is possible, however, that 
these provisions will delay an interest owner's ability to 
mount a challenge to provisions that do not take effect for the 
one year grace period. To prevent this, this section authorizes 
owners of trust or restricted lands to bring an administrative 
challenge to the Act as soon as the Secretary provides the 
required certification. At the conclusion of such an 
administrative challenge, a dissatisfied party may seek 
judicial review. This section is not intended to alter or 
enlarge the judicial review available in such situations.

Section 6. Authorization of appropriations

    This section authorizes an appropriation of up to $8 
million for any activities authorized by the ILCA that are not 
otherwise funded under any other provision of law.

Section 7. Conforming amendments

    Irrelevant and discredited portions of the Dawes Act are 
repealed by this section. In addition, Section 5 of the Dawes 
Act (25 U.S.C. Sec. 348) is amended by striking a provision 
that makes state partition law applicable to allotments. Also, 
a conforming amendment is added to clarify that state laws of 
intestate succession only apply to the descent of intestate 
interests to the extent they are inconsistent with the ILCA or 
an approved tribal probate code.
    Subsection (b) includes conforming amendments to 25 U.S.C. 
Sec. Sec. 372 and 373 to clarify that thedetermination of 
heirs, adjudication of wills, and promulgation of regulations for these 
functions shall conform with the ILCA.
    Subsection (c) includes a conforming amendment to Section 4 
of the Indian Reorganization Act, which makes state law of 
descent and devise applicable to reservations organized under 
the IRA. The amendment limits the application of such state law 
if it is inconsistent with the ILCA.

                          Legislative History

    S. 1586 was introduced on September 15, 1999 by Senator Ben 
Nighthorse Campbell and referred to the Committee on Indian 
Affairs. On November 4, 1999, the Senate Committee on Indian 
Affairs held a joint hearing with the Committee on Resources of 
the House of Representatives.

            Committee Recommendation and Tabulation of Vote

    In an open business session on March 23, 2000, the 
Committee on Indian Affairs, by voice vote, adopted an 
amendment in the nature of a substitute offered by Senator 
Campbell and ordered the bill reported to the Senate. Before 
the bill was delivered to the Clerk of the Senate, the 
Committee in an open business session on June 14, 2000 adopted 
an amendment in the nature of a substitute, and ordered the 
bill reported to the Senate.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 cites the short title of the bill as the Indian 
Land Consolidation Act Amendments of 2000.

Section 2. Findings

    Section 2 provides the Congressional findings that provide 
the context for the bill.

Section 3. Declaration of policy

    Section 3 establishes five policies that Congress seeks to 
achieve with respect to interests of trust or restricted land.

Section 4. Amendments to the Indian Land Consolidation Act

    Section 4 makes a number of changes to the existing 
provisions of the ILCA. This section makes the following 
changes.
    (1) Section 202, Definitions, is amended with a technical 
amendment to the definition of ``tribe;'' a new definition of 
``Indian'' that is necessary to conform the bill with redrafted 
section 207; and a definition for ``heirs of the first or 
second degree.''
    (2) Section 205, Tribal Land Consolidation Plans, is 
amended with a technical amendment to the provision which 
concerns tribal land consolidation plans. Also, this provision 
is amended with the addition of a provision that makes 
Secretarial approval unnecessary for certain transactions 
involving trust and restricted land within a tribe's 
reservation and jurisdiction.
    (3) Section 206, Trial Probate Codes, is rewritten. As with 
existing law, this section authorizes Indian tribes to 
establish probate codes for lands within their reservation or 
otherwise subject to their jurisdiction. Although Secretarial 
approval is still required, subsection (b) now places limits on 
the time the Secretary can take to review and approve such 
codes or amendments to such codes. In addition, the Secretary 
must now provide a written explanation for the disapproval of 
any code or amendment submitted by an Indian tribe. As 
rewritten, a tribe may acquire interests in probate before they 
are inherited by a non-Indian. Under this provision, subsection 
(c), a tribe is no longer required to submit a tribal probate 
code to acquire such interests. Before an interest is acquired 
by a tribe, the would-be heir or devisee may renounce the 
interest in favor of Indian and/or retain a life estate. Under 
a new provision, subsection (d), the Secretary is to establish 
regulations for the use of findings of fact and conclusions of 
law by tribal justice systems as proposed findings for use in 
Departmental adjudications.
    (4) Section 207, Descent and Distribution, is rewritten. 
This section concerns the descent and distribution of interests 
in trust and restricted land. The first subsection addresses 
the devise or testamentary disposition of this land. This 
subsection limits the devise of trust and restricted land to 
non-Indians. A testator may devise an interest in trust or 
restricted land to a non-Indian, but that devisee will only 
obtain a ``non-Indian estate in Indian land,'' an interest 
defined in subsection (c). Subsection (b) addresses intestate 
succession. Intestate succession is limited to heirs of the 
first or second degree, as defined. Non-Indian heirs of the 1st 
and 2nd degree only receive a ``non-Indian estate in Indian 
land.'' Subsection (c) describes non-Indian estates in Indian 
land. The holders of these interests receive a proportionate 
share of the revenue produced by the parcel of land. Also, they 
may convey their limited estate, along with full equitable 
interest, as it was held by the last Indian owner, but only to 
an Indian. Similarly, if they devise their interest to an 
Indian or if they die intestate, their Indian heirs will 
receive the full equitable estate held by the last Indian 
owner. If the estate is devised to a non-Indian, the non-Indian 
devisee obtains a non-Indian estate. The tribe that exercises 
jurisdiction over the parcel may purchase the interest before 
the non-Indian estate passes to the non-Indian devisee. To 
eliminate any question about where title is held while a non-
Indian holds a non-Indian estate, Sec. 207(c)(5), provides that 
the Secretary is to be treated as the holder of the remainder 
interest until it vests in an Indian or an Indian tribe. To 
address further fractionation, subsections (a) and (b) both 
include provide for joint tenancy with the right or 
survivorship (joint tenancy). With respect to testate 
disposition, a presumption is created, in the absence of 
express language to the contrary, a devise is presumedto create 
a joint tenancy. Similarly, if an interest of 5% or less descends to 
more than one heir by intestate succession the heirs will hold the 
interest as joint tenancy. Under a new provision, subsection (d), the 
officials authorized to adjudicate Indian probate may approve 
agreements between a decedent's heirs and devisees. The Secretary is 
authorized to promulgate regulations concerning the implementation of 
the authority for such agreements. Also, subsection (e) provides that 
the Secretary is to provide probate planning assistance to the extent 
that amounts are appropriated by Congress for that purpose. Subsection 
(f) requires the Secretary to provide notice of the amendments, along 
with estate planning assistance, to Indian tribes and Indian 
landowners. After the Secretary provides notice in the manner required 
by the bill, he is to certify that this notice was required and publish 
notice of this certification in the Federal Register. The effective 
date of the probate provisions of the amendments is 365 days after this 
publication.
    (5) Eight new sections are added to the ILCA. These are:
    Section 213, Pilot Program for the Acquisition of 
Fractional Interests. The section establishes a three year 
program for the acquisition fractional interests by the 
Secretary. Subsection (b) provides requirements for 
implementing this program including, a requirement that the 
Secretary shall consult with tribal governments in determining 
where to direct acquisition resources. Subsection (c) 
identifies circumstances where the Secretary may convey 
interests acquired under this program to individual Indian 
landowners that own pre-existing interests a parcel of trust 
land.
    Section 214, Administration of Acquired Fractional 
Interests. This section authorizes the leasing and use of 
interests in land acquired by the Secretary under the pilot 
project. An exception is provided when the costs of maintaining 
the interest exceeds its income generation potential. In such 
instances, the interest is simply to be transferred to the 
tribe.
    Section 215, Establishing Fair Market Value. This section 
authorizes the Secretary to develop a system for determining 
how much he will offer to the owners of trust and restricted 
land for the interests the Department seeks to acquire under 
the pilot project.
    Section 216, Acquisition Fund. This section provides for 
the creation of an account for the collection and disbursement 
of revenue appropriated or otherwise available for expenditure 
under the pilot project.
    Section 217, Trust and Restricted Land Transactions. This 
section establishes a federal policy of facilitating land 
consolidation through transactions involving the sale of trust 
and restricted land to Indians and Indian tribes. Subsection 
(b) provides that an estimate of value may be used in the place 
of an appraisal when an Indian owner is selling or exchanging 
an interest in trust or restricted land. Subsection (c) 
addresses situations where reservation lands include undivided 
trust and non-trust interests. Subsection (d) makes clear that 
the trust or restricted status of land is not affected by its 
sale or exchange under this section. Subsection (e) provides 
for gift deeds of trust and restricted land. The Secretary is 
not to approve an application for land conveyed by gift deed to 
an Indian for seven years. Subsection (g) provides that land 
ownership information is to be made available, in order to 
facilitate activities addressed by the bill, including the 
consolidation of interests by individual Indian landowners.
    Section 218, Reports to Congress. This section directs the 
Secretary to consult with relevant parties and report to 
Congress before the pilot project expires. The report shall 
address the impact of the pilot project and contain findings on 
whether the program should be extended and/or altered to make 
resources available to individual Indians and/or Indian tribes.
    Section 219, Approval of Leases, Rights of Way. This 
section clarifies that unanimous approval is not necessary for 
Secretarial approval of a lease or agreement of allotted land. 
Under these provisions, if the owners of the specified 
percentage of undivided interest in a parcel agree to the 
transaction.
    Section 220, Application to Alaska. This section makes the 
Act inapplicable in the State of Alaska.

Section 5. Judicial review

    Section 5 addresses judicial review of the Amendments. 
Under this section, an individual may bring an administrative 
challenge against the application of section 217 to their 
interest in trust and restricted land.

Section 6. Authorization of appropriations

    Section 6 authorizes $8 million for provisions of the ILCA, 
as amended, where appropriations are not otherwise not provided 
for in Federal law.

Section 7. Conforming amendments

    Section 7 makes several changes to existing law to conform 
those statutes with provisions in the Act.

                    Cost and Budgetary Consideration

    The cost estimate for S. 1586, as amended, as calculated by 
the Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 25, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1586, the Indian 
Land Consolidation Act Amendments of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Keith.
            Sincerely,
                                         Robert A. Sunshine
                                    (For Dan L. Crippen, Director).
    Enclosure.

               congressional budget office cost estimate

S. 1586--Indian Land Consolidation Act Amendments of 2000

    Summary: S. 1586 would amend laws that regulate how the 
ownership of interest in Indian allotments (certain parcels of 
land that are owned by individuals or groups of individuals) is 
transferred upon the death of the owner. The bill also would 
authorize the appropriation of $8 million a year, beginning in 
2001, to acquire interests in such property from willing 
sellers and to collect any funds generated from any natural 
resource leases on this property. CBO estimates that 
implementing S. 1586 would cost $34 million over the 2001-2005 
period, assuming the appropriation of the authorized amounts. 
Enacting S. 1586 would not affect direct spending or receipts; 
therefore, pay-as-you-go procedures would not apply.
    S. 1586 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA). Indian tribes might 
incur additional costs to purchase interests in trust or 
restricted lands as a result of the bill's enactment, but these 
costs would be voluntary. S. 1586 would impose new private-
sector mandates but CBO estimates that the total direct costs 
of those mandates would not exceed the annual threshold 
established in UMRA ($109 million in 2000, adjusted annually 
for inflation) for any of the first five years that the 
mandates are in effect.
    Major provisions: S. 1586 would make several changes to 
federal laws concerning the ownership of interests in Indian 
allotted land. In particular, the bill would:
          Authorize the Secretary of the Interior to acquire 
        fractional interests in Indian trust and restricted 
        lands from willing sellers at fair market value and to 
        collect any revenue generated from the leasing of 
        natural resources on that interest until the purchase 
        price is fully recovered by the Secretary;
          Permit the Secretary of the Interior to develop a 
        system for establishing the fair market value of 
        certain Indian lands and improvements of such land;
          Allow any Indian with over 5 percent interest in a 
        parcel of Indian trust or restricted land to purchase 
        an interest acquired by the Secretary of the Interior 
        if that individual reimburses the Secretary for the 
        cost to acquire that interest;
          Authorize the Department of the Interior (DOI) to 
        provide estate planning assistance to owners of 
        interest in Indian allotments;
          Modify the conditions that the Secretary of the 
        Interior must consider to approve a lease or agreement 
        that affects interest owners of allotted land; and
          Require DOI to notify individual Indians and Indian 
        tribes of the changes in law that would occur from 
        enacting S. 1586.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 1586 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2001     2002     2003     2004     2005
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization level................................................        8        8        8        8        8
Estimated outlays..................................................        3        7        8        8        8
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
1586 will be enacted near the start of fiscal year 2001 and 
that the authorized amounts will be appropriated for each year. 
We also assume that outlays will follow the historical pattern 
for the Indian Land Consolidation Pilot Program.
    The federal government originally allotted interests in 
trust and restricted land to individual Indians over a century 
ago. Over time, the number of owners of such allotted land has 
grown as owners have passed ownership on to their descendants. 
The cost to the Bureau of IndianAffairs (BIA) to administer 
ownership of this property has also grown. S. 1586 would attempt to 
prevent the further fractionalization of allotted land by amending the 
Indian Land Consolidation Act.
    S. 1586 would authorize the appropriation of $8 million 
each year for BIA to acquire interest in Indian trust and 
restricted land, develop a system for establishing the fair 
market value of such interest, provide Indians with estate 
planning assistance, and notify individual interest owners and 
Indian tribes of the changes in this law.
    In addition, S. 1586 would authorize BIA to collect any 
receipts generated from natural resource leases on the allotted 
land purchased by the Secretary, and to spend such funds in 
future years to acquire additional interests, subject to 
appropriation actions. CBO estimates that any receipts to the 
government under this bill would be insignificant over the next 
five years, and would depend on the appropriation of amounts 
necessary to acquire this property.
    Under the bill, Indian tribes also could purchase interests 
that are pending before the Secretary. CBO expects that tribes 
would choose to purchase the interests in allotments that 
generate the greatest leasing income. In addition, CBO expects 
that owners of interest in allotted land that generates very 
little income would be more willing to sell their interests to 
the Secretary than owners of interests that generate a large 
amount of income from leases. Based on information from BIA and 
the experience of the Indian Land Consolidation Pilot Program, 
CBO estimates that, on average, interests purchased by the 
Secretary would generate a 4 percent to 5 percent return from 
natural resource leases each year. Thus, we expect that any 
collections from this provision would not be significant in any 
of the next five years.
    Based on information from BIA, CBO expects that 
implementing S. 1586 could result in an administrative cost 
savings to the agency because there would be fewer individual 
owners of interests in trust and restricted lands. Any such 
savings would be subject to appropriation action, and CBO 
estimates that savings would not be significant over the 2001-
2005 period.
    Pay-as-you-go considerations: None.
    Estimated impact on State, local, and tribal governments: 
S. 1586 contains no intergovernmental mandates as defined in 
UMRA. The bill would allow all tribal governments to purchase 
interest in trust or restricted lands if those interests would 
otherwise be inherited by someone who is not an Indian. Under 
current law, only tribes with an approved probate code may make 
such purchases. Any additional expenditures resulting from this 
change would be voluntary.
    Estimated impact on the private sector: By placing new 
eligibility requirements on the inheritance of fractional 
interests in Indian trust and restricted lands, S. 1586 would 
impose new private-sector mandates on those persons who might 
otherwise inherit such interests under current law. CBO expects 
that the mandates would affect only a limited number of such 
persons in the near term. At the earliest, mandates in the bill 
would take effect only upon the death of an owner of land 
interests and generally would not affect Indian family members 
as heirs. Further, to the extent that requirements in the bill 
would affect some heirs, many such cases would involve only a 
small fractional interest in land. Thus, CBO estimates that the 
costs of the mandates in the bill would not exceed the annual 
threshold established in UMRA ($109 million in 2000, adjusted 
annually for inflation) for any of the first five years that 
the mandates are in effect.
    Estimate prepared by: Federal Costs: Lanette J. Keith; 
impact on State, local and tribal governments: Marjorie Miller; 
impact on the private sector: Natalie Tawil.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

    Paragraph 11(b) of XXVI of the Standing Rules of the Senate 
requires that each report accompanying a bill to evaluate the 
regulatory paperwork impact that would be incurred in carrying 
out the bill. The Committee believes that S. 1586 will have a 
minimal regulatory or paperwork impact.

                        Executive Communications

    The Committee has received a letter in support of S. 1586 
from the Department of the Interior on November 3, 1999, which 
letter is set forth below:

                        Department of the Interior,
                                   Office of the Secretary,
                                  Washington, DC, November 3, 1999.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Campbell: This letter sets forth the views of the 
Department of the Interior on S. 1586, a bill that will amend 
the Indian Land Consolidation Act to more fully address the 
problem of the fractionated ownership of Indian lands. The 
Department supports S. 1586.
    Resolution of the problem of fractionated ownership of 
Indian lands is critical to the economic viability of Indian 
country and the successful implementation of the Department of 
the Interior's ongoing efforts to implement trust reform. The 
origin of the fractionation problem has been documented many 
times. Although several treaties provided for the allotment of 
Indian land, the process became a nationwide policy in 1887 
with enactment of the General Allotment Act (GAA). The GAA 
directed that tribal lands be divided into small parcels and 
given or ``allotted'' to individual Indians. The purpose was to 
accelerate the civilization of the Indians by making them 
private landowners and, ultimately, to assimilate them into 
society, at large. Many Indians sold their land, but few 
assimilated into the surrounding non-Indian communities, 
resulting in wide-spread homelessness and impoverishment for 
Indians. By the 1930s it was widely accepted that the GAA had, 
for the most part, failed. In 1934 Congress, in Section 1 of 
the Indian Reorganization Act, stopped the further allotment of 
tribal lands. A direct result of the GAA was the loss of over 
100,000,000 acres of land from the Indian trust land base 
between 1887 and 1934. An indirect result was fractionated 
ownership of land allotments.
    As originally envisioned by the drafters of the GAA, 
allotments would be held in trust by the United States for 
their Indian owners for no more than 25 years. At the end of 
the 25 years, the land would be conveyed in fee simple to its 
Indian owners. Many allottees died during the 25 years trust 
period. In addition, it became evident that many allottees 
continued to need federal protection. As a consequence, 
Congress enacted limited probate laws and authorized the 
President to extend the trust period for those individuals who 
were not competent to manage their lands. The presumption was, 
however, that at some point in the foreseeable future the lands 
would be conveyed to their Indian owners free of federal 
restrictions. As a consequence, Congress did not amend the 
probate laws ever though it continued to extend the period of 
trust protection. As individuals died, their property descended 
to their heirs as undivided ``fractional'' interests in the 
allotment. In other words, if an Indian owning a 160 acre 
allotment died and had four heirs, the heirs did not inherit 40 
acres each. Rather, they each inherited a 1/4th interest in the 
entire 160 acre allotment. As the years passed, fractionation 
has expanded exponentially to the point where there are 
hundreds of thousands of tiny fractional interests spread 
throughout Indian country.
    The fractionated ownership of Indian lands is taxing the 
ability of the Department to administer and maintain records on 
Indian lands. Fractionated heirship also threatens the 
integrity and viability of the Department's trust funds 
management. The Department is charged by statute with 
maintaining Federal Indian land records on these hundreds of 
thousands of fractional interests and with probating the 
estates of every Indian individual who owns a fractional 
interest in an allotment, regardless of how small that interest 
may be. The Department also maintains Individual Indian Money 
(IIM) accounts to receive, distribute, and account for income 
received from these fractional interests. In many cases, the 
fractions are so small that the cost of administering the 
fractional interests and maintaining the IIM account far 
exceeds both their value plus any income derived therefrom.
    In 1984, Congress attempted to address the fractionation 
problem with passage of the Indian Land Consolidation Act 
(ILCA). The ILCA authorized the buying, selling and trading of 
fractional interests but, most importantly, it provided for the 
escheat to the tribes of land ownership interests of less than 
2 percent. Over 55,000 of the 2 percent-or-less fractional 
interests escheated since passage of the ILCA in 1984. However, 
the problem of fractionation continues to worsen and in fact, 
since the Supreme Court declared the current escheat provision 
unconstitutional in Babbitt v. Youpee, 117 S. Ct. 727 (1997), 
is accelerating. This is because interests that would have 
escheated are now passing to the heirs and further 
fractionating, and because numerous estates will have to be 
reopened in order to revert the 55,000 escheated interests. The 
costs of maintaining heirship records and administered the land 
is inordinately expensive for the BIA. Approximately 50-75 
percent ($33 million) of the BIA's realty budget goes to 
administering these fractional interests making funds 
unavailable for more productive investments in lands. Other 
programs such as trust funds management, forestry, range, 
transportation, and social services, are likewise adversely 
impacted. Utilization and/or conveyance of the fractionated 
property by the numerous owners is also difficult because of 
the need to secure the numerous consents which are required.
    In 1994, the Department distributed a consultation package 
to tribal leaders to address the issue of fractionation and 
followed it with a letter to owners of trust and restricted 
Indian lands. The package included a proposal in the form of 
draft legislation and invited comments and suggestions for 
alternatives to the concepts contained in the draft 
legislation. The letter to landowners was sent to more than 
126,000 individuals. The landowners letter described the 
proposal and included a questionnaire. More than 12,000 
persons, 90 percent of whom reported themselves as members of 
federally recognized tribes, responded in writing during 1995. 
Sixty-five percent (65 percent) of the respondents in the 
survey of landowners agreed with the basic concepts of 
consolidating small fractional interests in the tribes through 
an acquisition program and preventing and slowing further 
fractionation.
    In order for any initiative to have a measurable impact on 
the fractionated heirship problem, it must have two major 
components--first, it must eliminate or consolidate the number 
of existing fractional interests and, second, it must prevent 
or substantially slow future fractionation. S. 1586 
accomplishes both of these objectives. S. 1586 provides an 
acquisition fund to eliminate existing fractional interestsand 
contains limitations on the devise and descent of trust property that 
will materially slow the future fractionation of allotted lands. 
Savings from the cost of probating Indian estates alone justifies the 
cost of the acquisition program. The average value of a less than 2 
percent fractional interest in allotted lands on twelve reservations 
studied by the General Accounting Office (GAO) in 1992 was estimated to 
be less than $200. Comparatively, upon the death of an Indian owner, it 
costs the BIA between $1,500 and $2,000 to probate the landowner's 
estate. Additional costs are borne by the Department's Office of 
Hearings and Appeals. In many cases, the simple fact of the matter is 
that it will be cheaper to simply acquire the interests than it will be 
to probate them, allow them to further fractionate, and to pass them on 
to more heirs, which in turn allows them to continue to fractionate.
    In FY 1999 the Congress authorized a fractionated heirship 
pilot project and appropriated $5 million for that purpose. 
Thirty-four tribes applied for the pilot. After reviewing the 
applications and examining such things as the severity of 
fractionation on the various reservations, the condition of the 
probate and realty records, the availability of appraisal data, 
and the tribe's willingness to contribute to the program, three 
tribes from Wisconsin were selected: Bad River, Lac Courte 
Oreilles, and Lac du Flambeau. All of these reservations have 
very old (1850s vintage) pre-GAA allotments. Approximately 85 
percent of ALL of the interests on the reservations were less 
than 2 percent, and several 80 acre allotments had in excess of 
1,000 owners. After meeting with the tribes, establishing 
procedures for determining value, how to make rapid payment to 
the landowners, and how to speed up the deed recording process, 
the project was initiated in April of this year.
    Initially it was anticipated that notices would be sent to 
landowners and advertisements placed in local newspapers and 
perhaps notice of the project announced on local radio 
stations. However, the opportunity to sell fractional interests 
spread quickly by word of mouth and the BIA has been inundated 
with requests to sell interests. To date, over 8,000 interests 
have been purchased and over 4,000 acres have been returned to 
the tribes. Over 600 deeds (combining multiple sales of 
fractional interests into one document) have been recorded and 
the need for over 250 probates and new IIM accounts have been 
eliminated. With over $1 million in additional acquisitions 
currently being processed, the entire $5 million for the pilot 
project will likely be used to purchase additional fractional 
interests by February 2000. The success of the pilot project 
demonstrates not only that the number of fractional interests 
can be dramatically reduced through an acquisition program, 
but, more importantly, that there are significant numbers of 
individual Indians that are in the market to voluntarily 
dispose of these interests.
    S. 1586 addresses one of the most serious ramifications of 
the fractionated state of Indian land ownership. Before the 
Secretary can lease land for purposes such as grazing, 
drilling, mining or rights of way, the owners of that land must 
approve the lease. In some cases under federal law, such as 
agriculture, a majority in interest of the owners must approve 
the lease. In others, such as oil and gas drilling, all owners 
must approve the lease before it can go forward to the 
Secretary. With scores or even hundreds of owners on a single 
allotment, potential lessees simply find it too burdensome or 
costly to locate and obtain the approval of all owners. As a 
result, land frequently goes unleased and the owners lose the 
economic benefit of their property.
    S. 1586 would adopt a uniform standard for all leases, 
rights-of-way, sales of natural resources or similar 
transactions regardless of the use to which the property will 
be put. It would authorize the Secretary to approve such a 
transaction if it is supported by the owners of a majority of 
the interests in a parcel of land.
    The Department would also like to bring Sec. 221. Real 
Estate Transactions Involving Non-Trust Lands, to your 
attention. There has been considerable confusion and litigation 
about whether 25 U.S.C. Sec. 177 applies to lands acquired in 
fee by Tribes.
    The Administration believes that Section 221, as proposed, 
should be amended to make it clear that Sec. 177 automatically 
attaches to lands that are purchased in fee by a Tribe if those 
lands are within the boundaries of its current reservation. 
Such a provision would greatly enhance the federal and tribal 
goal, evidenced by statutes such as 25 U.S.C. Sec. 465, of 
rebuilding the Tribal land bases that were decimated by the 
allotment of Tribal lands. We believe that such a provision is 
consistent with the goals of the majority of Tribes, who 
generally are interested in preserving lands within reservation 
boundaries in Tribal ownership for the benefit of future 
generations. The right to sell, mortgage or otherwise dispose 
of interests in land that are outside of current reservation 
boundaries without Congressional or Secretarial approval will 
better enable Tribes to pursue economic development and self-
sufficiency.
    In 1997, the Administration submitted a draft bill that was 
introduced and hearings were held. Representatives of some of 
the allottees, principally the Indian Land Working Group, 
testified on that bill and also presented their own legislative 
proposal to Committee staff.
    Following the hearing, a meeting was held with Senate 
Committee staff, the Administration and the Indian Land Working 
Group to discuss the two proposals. The Senate Committee staff 
then took the comments received at that meeting and drafted S. 
1586. The Committee staff has done a remarkable job in 
combining the best features of both proposals and are to be 
commended for their efforts. There will, no doubt, be concern 
expressed by some witnesses over the inclusion of an escheat 
provision in S. 1586 and emphasis placed on the fact that the 
Supreme Court has twice ruled that the escheat provisions in 
the existing version of ILCA are unconstitutional. To that 
argument we quote from the final paragraph of the Supreme 
Court's opinion in Hodel v. Irving:

          There is little doubt that the extreme fractionation 
        of Indian lands is a serious public problem. It may 
        well be appropriate for the United States to ameliorate 
        fractionation by means of regulating the descent and 
        devise of Indian lands. Surely it is permissible for 
        the United States to prevent the owners of such 
        interests from further subdividing them among future 
        heirs on pain of escheat. [Citation omitted.] It may be 
        appropriate to minimize further compounding of the 
        problem by abolishing the descent of such interest by 
        rules of intestacy, thereby forcing the owners to 
        formally designate an heir to prevent escheat to the 
        Tribe.

    S. 1586 was drafted in full awareness of and in response to 
the quoted language. S. 1586 specifically addresses defects 
that rendered the earlier versions of the ILCA 
unconstitutional. First, it requires that notice of the 
amendments be given to the allottees within six months of 
passage of the amendments and gives them a minimum of eighteen 
months to comply with the amendments. Second, it also has 
liberal provisions of the devise of property and does not 
totally prohibit the devise of less than 2 percent interests as 
the earlier versions of the ILCA did.
    The Administration wholeheartedly supports passage of S. 
1586. We will submit a list of technical corrections and 
relatively minor suggestions to the Committee, shortly. Passage 
of S. 1586 is, in fact, imperative if the current trust reform 
initiative is to succeed. Without a legislative resolution of 
the fractionation problem, the ever quickening growth of 
fractionation will outpace any efforts to implement meaningful 
trust reform.
    The Office of Management and Budget has advised that there 
is no objection to the presentation of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                               Kevin Gover,
                            Assistant Secretary for Indian Affairs.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 1586 will result in the following changes in 25 
U.S.C. 2201, et seq., and 25 U.S.C. Sec. Sec. 331, 332, 333, 
348, 373, and 464, with existing language which is to be 
deleted in black brackets and the new language to be added in 
italic:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Indian Land Consolidation 
Act Amendments of 2000''.

SEC. 2. FINDINGS.

    Congress finds that--
          (1) in the 1800's and early 1900's, the United States 
        sought to assimilate Indian people into the surrounding 
        non-Indian culture by allotting tribal lands to 
        individual members of Indian tribes;
          (2) as a result of the allotment Acts and related 
        Federal policies, over 90,000,000 acres of land have 
        passed from tribal ownership;
          (3) many trust allotments were taken out of trust 
        status, often without their owners consent;
          (4) without restrictions on alienation, allotment 
        owners were subject to exploitation and their 
        allotments were often sold or disposed of without any 
        tangible or enduring benefit to their owners;
          (5) the trust periods for trust allotments have been 
        extended indefinitely;
          (6) because of the inheritance provisions in the 
        original treaties or allotment Acts, the ownership of 
        many of the trust allotments that have remained in 
        trust status has become fractionated into hundreds or 
        thousands of interests, many of which represent 2 
        percent or less of the total interests;
          (7) Congress has authorized the acquisition of lands 
        in trust for individual Indians, and many of those 
        lands have also become fractionated by subsequent 
        inheritance;
          (8) the acquisitions referred to in paragraph (7) 
        continue to be made;
          (9) the fractional interests described in this 
        section provide little or no return to the beneficial 
        owners of those interests and the administrative costs 
        borne by the United States for those interests are 
        inordinately high;
          (10) in Babbitt v. Youpee (117 S Ct. 727 (1997)), the 
        United States Supreme Court found that the application 
        of section 207 of the Indian Land Consolidation Act (25 
        U.S.C. 2206) to the facts presented in that case to be 
        unconstitutional, forcing the Department of the 
        Interior to address the status of thousands of 
        undivided interests in trust and restricted lands;
          (11)(A) on February 19, 1999, the Secretary of 
        Interior issued a Secretarial Order which officially 
        reopened the probate of all estates where an interest 
        in land was ordered to escheat to an Indian tribe 
        pursuant to section 207 of the Indian Land 
        Consolidation Act (25 U.S.C. 2206); and
          (B) the Secretarial Order also directed appropriate 
        officials of the Bureau of Indian Affairs to distribute 
        such interests ``to the rightful heirs and 
        beneficiaries without regard to 25 U.S.C. 2206'';
          (12) in the absence of comprehensive remedial 
        legislation, the number of the fractional interests 
        will continue to grow exponentially;
          (13) the problem of the fractionation of Indian lands 
        described in this section is the result of a policy of 
        the Federal Government, cannot be solved by Indian 
        tribes, and requires a solution under Federal law.
          (14) any devise or inheritance of an interest in 
        trust or restricted Indian lands is based on Federal 
        law; and
          (15) consistent with the Federal policy of tribal 
        self-determination, the Federal Government should 
        encourage the recognized tribal government that 
        exercises jurisdiction over a reservation to establish 
        a tribal probate code for that reservation.

SEC. 3. DECLARATION OF POLICY.

    It is the policy of the United States--
          (1) to prevent the further fractionation of trust 
        allotments made to Indians;
          (2) to consolidate fractional interests and ownership 
        of those interests into usable parcels;
          (3) to consolidate fractional interests in a manner 
        that enhances tribal sovereignty;
          (4) to promote tribal self-sufficiency and self-
        determination; and
          (5) to reverse the effects of the allotment policy on 
        Indian tribes.

                             25 U.S.C. 2201

Sec. 2201. Definitions

    For the purpose of this chapter--
          [(1) ``tribe''] ``Indian tribe'' or ``tribe'' means 
        any Indian tribe, band, group, pueblo, or community for 
        which, or for the members of which, the United States 
        holds lands in trust;
          [(2) ``Indian'' means any person who is a member of a 
        tribe or any person who is recognized as an Indian by 
        the Secretary of the Interior;] (2) ``Indian'' means 
        any person who is a member of any Indian tribe or is 
        eligible to become a member of any Indian tribe at the 
        time of the distribution of the assets of a decedent's 
        estate;
          (3) ``Secretary'' means the Secretary of the 
        Interior; [and]
          (4) ``trust or restricted lands'' means lands, title 
        to which is held by the United States in trust for an 
        Indian or an Indian tribe or lands title to which is 
        held by Indians or an Indian tribe subject to a 
        restriction by the United States against alienation[.]; 
        and
          (5) ``heirs of the first or second degree'' means 
        parents, children, grandchildren, grandparents, 
        brothers and sisters of a decedent.

                             25 U.S.C. 2204

Sec. 2204. Purchase of trust or restricted or controlled lands at no 
                    less than fair market value; requisite conditions

    [Any Indian] (a) In General.--Subject to subsection (b), 
any Indian tribe may purchase at no less than the fair market 
value part or all of the interests in any tract of trust or 
restricted land within that tribe's reservation or otherwise 
subject to that tribe's jurisdiction with the consent of the 
owners of such interests. The tribe may purchase all of the 
interests in such tract with the consent of the owners of over 
50 per centum of the undivided interests in such tract [:] 
Interests owned by an Indian tribe in a tract may be included 
in the computation of the percentage of ownership of the 
undivided interests in that tract for purposes of determining 
whether the consent requirement under the preceding sentence 
has been met. [Provided, That--]
    (b) Conditions Applicable to Purchase.--Subsection (a) 
applies on the condition that--
          (1) * * *
    (2) [If] if, at any time within five years following the 
date of acquisition of such land by an individual pursuant to 
this section, such property is offered for sale or a petition 
is filed with the Secretary for removal of the property from 
trust or restricted status, the tribe shall have 180 days from 
the date it is notified of such offer or petition to acquire 
such property by paying to the owner the fair market value as 
determined by the Secretary; and
    [(3) all purchases and sales initiated under this section 
shall be subject to approval by the Secretary.] (3) the 
approval of the Secretary shall be required for a land sale 
initiated under this section, except that such approval shall 
not be required with respect to a land sale transaction 
initiated by an Indian tribe that has in effect a land 
consolidation plan that has been approved by the Secretary 
under section 204.

                             25 U.S.C. 2205

Sec. 2205. [Descent and distribution of trust or restricted or 
                    controlled lands; tribal ordinance barring 
                    nonmembers of tribe or non-Indians from inheritance 
                    by devise or descent; limitation on life estate

    [(a) Descent or Distribution.--Notwithstanding any other 
provision of law, any Indian tribe, subject to approval by the 
Secretary, may adopt its own code of laws to govern descent and 
distribution of trust or restricted lands within that tribe's 
reservation or otherwise subject to that tribe's jurisdiction, 
and may provide that nonmembers of the tribe or non-Indians 
shall not be entitled to receive by devise or descent any 
interest or trust or restricted lands within that tribe's 
reservation or otherwise subject to that tribe's jurisdiction: 
Provided, That in the event a tribe takes such action--
          [(1) if an Indian dies intestate, the surviving non-
        Indian or nonmember spouse and/or children may elect to 
        receive a life estate in as much of the trust or 
        restricted lands as such person or persons would have 
        been entitled to take in the absence of such 
        restriction on eligibility for inheritance and the 
        remainder shall vest in the Indians or tribal members 
        who would have been heirs in the absence of a qualified 
        person taking a life estate;
          [(2) if an intestate Indian descendent [FN1] has no 
        heir to whom interests in trust or restricted lands may 
        pass, such interests shall escheat to the tribe, 
        subject to any non-Indian or nonmember spouse and/or 
        children's rights as described in paragraph (1) of this 
        section;
          [(3) if an Indian decedent has devised interests in 
        trust or restricted lands to persons who are ineligible 
        for such an inheritance by reason of a tribal ordinance 
        enacted pursuant to this section, the devise shall be 
        voided only if, while the estate is pending before the 
        Secretary for probate, the tribe acquires such 
        interests by paying to the Secretary, on behalf of the 
        devisees, the fair market value of such interests as 
        determined by the Secretary as of the date of the 
        decedent's death: Provided, That any non-Indian or 
        nonmember spouse and/or children of such decedent who 
        have been devised such interests may retain, at their 
        option, a life estate in such interests.
Any ineligible devisee shall also have the right to renounce 
his or her devise in favor of a person or persons who are 
eligible to inherit.
    [(b) Life Estate; Limitation.--The right to receive a life 
estate under the provisions of this section shall be limited 
to--
          [(1) a spouse and/or children who, if they had been 
        eligible, would have inherited an ownership interest of 
        10 per centum or more in the tract of land; or
          [(2) a spouse and/or children who occupied the tract 
        as a home at the time of the decedent's death.]

Tribal Probate Codes; Acquisitions of Fractional Interests by Tribes

    ``(a) Tribal Probate Codes.--
          ``(1) In general.--Notwithstanding any other 
        provision of law, any Indian tribe may adopt a tribal 
        probate code to govern descent and distribution of 
        trust or restricted lands that are--
                  ``(A) located within that Indian tribe's 
                reservation; or
                  ``(B) otherwise subject to the jurisdiction 
                of that Indian tribe.
          ``(2) Possible inclusions.--A tribal probate code 
        referred to in paragraph (1) may include--
                  ``(A) rules of intestate succession; and
                  ``(B) other tribal probate code provisions 
                that are consistent with Federal law and that 
                promote the policies set forth in section 3 of 
                the Indian Land Consolidation Act Amendments of 
                2000.
          ``(3) Limitations.--The Secretary shall not approve a 
        tribal probate code if such code prevents an Indian 
        person from inheriting an interest in an allotment that 
        was originally allotted to his or her lineal ancestor.
    ``(b) Secretarial Approval.--
          ``(1) In general.--Any tribal probate code enacted 
        under subsection (a), and any amendment to such a 
        tribal probate code, shall be subject to the approval 
        of the Secretary.
          ``(2) Review and approval.--
                  ``(A) In general.--Each Indian tribe that 
                adopts a tribal probate code under subsection 
                (a) shall submit that code to the Secretary for 
                review. Not later than 180 days after a tribal 
                probate code is submitted to the Secretary 
                under this paragraph, the Secretary shall 
                review and approve or disapprove that tribal 
                probate code.
                  ``(B) Consequence of failures to approve or 
                disapprove a tribal probate code.--If the 
                Secretary fails to approve or disapprove a 
                tribal probate code submitted for review under 
                subparagraph (A) by the date specified in that 
                subparagraph, the tribal probate code shall be 
                deemed to have been approved by the Secretary, 
                but only to the extent that the tribal probate 
                code is consistent with Federal law and 
                promotes the policies set forth in section 3 of 
                the Indian Land Consolidation Act Amendments of 
                2000.
                  ``(C) Consistency of tribal probate code with 
                act.--The Secretary may not approve a tribal 
                probate code, or any amendment to such a code, 
                under this paragraph unless the Secretary 
                determines that the tribal probate code 
                promotes the policies set forth in section 3 of 
                the Indian Land Consolidation Act Amendments of 
                2000.
                  ``(D) Explanation.--If the Secretary 
                disapproves a tribal probate code, or an 
                amendment to such a code, under this paragraph, 
                the Secretary shall include in the notice of 
                disapproval to the Indian tribe a written 
                explanation of the reasons for the disapproval.
                  ``(E) Amendments.--
                          ``(i) In general.--Each Indian tribe 
                        that amends a tribal probate code under 
                        this paragraph shall submit the 
                        amendment to the Secretary for review 
                        and approval. Not later than 60 days 
                        after receiving an amendment under this 
                        subparagraph, the Secretary shall 
                        review and approve or disapprove the 
                        amendment.
                          ``(ii) Consequence of failure to 
                        approve or disapprove an amendment.--If 
                        the Secretary fails to approve or 
                        disapprove an amendment submitted under 
                        clause (i), the amendment shall be 
                        deemed to have been approved by the 
                        Secretary, but only to the extent that 
                        the amendment is consistent with 
                        Federal law and promotes the policies 
                        set forth in section 3 of the Indian 
                        Land Consolidation Act of 2000.
          ``(3) Effective dates.--A tribal probate code 
        approved under paragraph (2) shall become effective on 
        the later of--
                  ``(A) the date specified in section 
                207(f)(5); or
                  ``(B) 180 days after the date of approval.
          ``(4) Limitations.--
                  ``(A) Tribal probate codes.--Each tribal 
                probate code enacted under subsection (a) shall 
                apply only to the estate of a decedent who dies 
                on or after the effective date of the tribal 
                probate code.
                  ``(B) Amendments to tribal probate codes.--
                With respect to an amendment to a tribal 
                probate code referred to in subparagraph (A), 
                that amendment shall apply only to the estate 
                of a descendant who dies on or after the 
                effective date of the amendment.
          ``(5) Repeals.--The repeal of a tribal probate code 
        shall--
                  ``(A) not become effective earlier than the 
                date that is 180 days after the Secretary 
                receives notice of the repeal; and
                  ``(B) apply only to the estate of a decedent 
                who dies on or after the effective date of the 
                repeal.
    ``(c) Authority Available to Indian Tribes.--
          ``(1) Application.--The recognized tribal government 
        that has jurisdiction over an Indian reservation (as 
        defined in section 207(c)(5)) may exercise the 
        authority provided for in paragraph (2).
          ``(2) Authority to make payments in lieu of 
        inheritance of interest in land.--
                  ``(A) Prohibition.--An individual who is not 
                an Indian shall not be entitled to receive by 
                devise or descent any interest in trust or 
                restricted land, except by reserving a life 
                estate under subparagraph (B)(ii), within the 
                reservation over which a tribal government has 
                jurisdiction if, while the decedent's estate is 
                pending before the Secretary, the tribal 
                government referred to in paragraph (1) pays to 
                the Secretary, on behalf of such individual, 
                the value of such interest. The interest for 
                which payment is made under this subparagraph 
                shall be held by the Secretary in trust for the 
                tribal government.
                  ``(B) Exception.--
                          ``(i) In general.--Subparagraph (A) 
                        shall not apply to any interest in 
                        trust or restricted land if, while the 
                        decedent's estate is pending before the 
                        Secretary, the ineligible non-Indian 
                        heir or devisee described in such 
                        subparagraph renounces the interest in 
                        favor of a person or persons who are 
                        otherwise eligible to inherit.
                          ``(ii) Reservation of life estate.--
                        The non-Indian heir or devisee 
                        described in clause (i) may retain a 
                        life estate in the interest and convey 
                        the remaining interest to an Indian 
                        person.
                          ``(iii) Presumption.--In the absence 
                        of any express language to the 
                        contrary, a conveyance under clause 
                        (ii) is presumed to reserve to the life 
                        estate holder all income from the 
                        lease, use, rents, profits, royalties, 
                        bonuses, or sales of natural resources 
                        during the pendency of the life estate 
                        and any right to occupy the tract of 
                        land as a home.
                  ``(C) Payments.--With respect to payments by 
                a tribal government under subparagraph (A), the 
                Secretary shall--
                          ``(i) upon the request of the tribal 
                        government, allow a reasonable period 
                        of time, not to exceed 2 years, for the 
                        tribal government to make payments of 
                        amounts due pursuant to subparagraph 
                        (A); or
                          ``(ii) recognize alternative agreed 
                        upon exchanges of consideration between 
                        the ineligible non-Indian and the tribe 
                        in satisfaction of the payment under 
                        subparagraph (A).
    ``(d) Use of Proposed Findings by Tribal Justice Systems.--
          ``(1) Tribal justice system defined.--In this 
        subsection, the term `tribal justice system' has the 
        meaning given that term in section 3 of the Indian 
        Tribal Justice Act (25 U.S.C. 3602).
          ``(2) Regulations.--The Secretary by regulation may 
        provide for the use of findings of fact and conclusions 
        of law, as rendered by a tribal justice system, as 
        proposed findings of fact and conclusions of law in the 
        adjudication of probate proceedings by the Department 
        of the Interior.''

                             25 U.S.C. 2206

Sec. 2206.[ Escheat to tribe of trust or restricted or controlled 
                    lands; fractional interest; Indian tribal code

    [(a) Escheat to Tribe; Rebuttable Presumption.--No 
undivided interest held by a member or nonmember Indian in any 
tract of trust land or restricted land within a tribe's 
reservation or outside of a reservation and subject to such 
tribe's jurisdiction shall descend by intestacy or devise but 
shall escheat to the reservation's recognized tribal 
government, or if outside of a reservation, to the recognized 
tribal government possessing jurisdiction over the land if such 
interest represents 2 per centum or less of the total acreage 
in such tract and is incapable of earning $100 in any one of 
the five years from the date of decedent's death. Where the 
fractional interest has earned to its owner less than $100 in 
any one of the five years before the decedent's death, there 
shall be a rebuttable presumption that such interest is 
incapable of earning $100 in any one of the five years 
following the death of the decedent.
    [(b) Escheatable Fractional Interest.--Nothing in this 
section shall prohibit the devise of such an escheatable 
fractional interest to any other owner of an undivided 
fractional interest in such parcel or tract of trust or 
restricted land.
    [(c) Adoption of Indian Tribal Code.--Notwithstanding the 
provisions of subsection (a) of this section, any Indian tribe 
may, subject to the approval of the Secretary, adopt its own 
code of laws to govern the disposition of interests that are 
escheatable under this section, and such codes or laws shall 
take precedence over the escheat provisions of subsection (a) 
of this section, provided, the Secretary shall not approve any 
code or law that fails to accomplish the purpose of preventing 
further descent or fractionation of such escheatable 
interests.]

Descent and Distribution; Escheat of Fractional Interests

    ``(a) Testamentary Disposition.--
          ``(1) In general.--Except as provided in this 
        section, interests in trust or restricted land may be 
        devised only to--
                  ``(A) the decedent's Indian spouse or any 
                other Indian person; or
                  ``(B) the Indian tribe with jurisdiction over 
                the land so devised.
          ``(2) Non-indian estate.--Any devise not described in 
        paragraph (1) shall create a non-Indian estate in 
        Indian land as provided for under subsection (c).
          ``(3) Joint tenancy with right of survivorship.--If a 
        testator devises interests in the same parcel of trust 
        or restricted land to more than 1 person, in the 
        absence of express language in the devise to the 
        contrary, the devise shall be presumed to create a 
        joint tenancy with right of survivorship.
    ``(b) Intestate Succession.--
          ``(1) In general.--Subject to paragraphs (2) and (3), 
        with respect to an interest in trust or restricted land 
        passing by intestate succession, only a spouse or heirs 
        of the first or second degree may inherit such an 
        interest.
          ``(2) Non-indian estate.--Notwithstanding paragraph 
        (1), a non-Indian spouse or non-Indian heir of the 
        first or second degree may only receive a non-Indian 
        estate in Indian land as provided for under subsection 
        (c).
          ``(3) Joint tenancy.--
                  ``(A) In general.--Unless modified by a 
                tribal probate code that is approved under 
                section 206--
                          ``(i) any heirs of the first or 
                        second degree that inherit an interest 
                        that constitutes 5 percent or more of 
                        the undivided interest in a parcel of 
                        trust or restricted land, shall hold 
                        such interest as tenants in common; and
                          ``(ii) any heirs of the first or 
                        second degree that inherit an interest 
                        that constitutes less than 5 percent of 
                        the undivided interest in a parcel of 
                        trust or restricted land, shall hold 
                        such interest as joint tenants with the 
                        right of survivorship.
                  ``(B) Renouncing of rights.--The heirs who 
                inherit an interest as tenants in common with a 
                right of survivorship under subparagraph 
                (A)(ii) may renounce their right of 
                survivorship in favor of one or more of their 
                co-owners.
          ``(4) Acquisition of interest by indian co-owners.--
        An Indian co-owner of a parcel of trust or restricted 
        land may prevent the escheat of an interest in Indian 
        lands for which there is no legal heir by paying into 
        the decedent's estate, the fair market value of the 
        interest in such land. If more than 1 Indian co-owner 
        offers to pay for such interest, the highest bidder 
        shall obtain the interest. If no such offer is made, 
        the interest will escheat to the tribe that exercises 
        jurisdiction over the land.
    ``(c) Non-Indian Estates.--
          ``(1) Rights of non-indian estate holders.--
                  ``(A) In general.--An individual who receives 
                a non-Indian estate in Indian land under 
                subsection (a)(2) or (b)(2)--
                          ``(i) shall receive a proportionate 
                        share of the proceeds of any lease, 
                        use, rents, profits, royalties, 
                        bonuses, or sale of natural resources 
                        based on their share of the decedent's 
                        interest in such land; and
                          ``(ii) may--
                                  ``(I) convey or deed by gift 
                                the decedent's interest in 
                                trust or restricted land to an 
                                Indian or the tribe with 
                                jurisdiction over the land; or
                                   ``(II) devise the decedent's 
                                interest to either an Indian or 
                                an Indian tribe as provided for 
                                in subsection (a)(1) or a non-
                                Indian as provided for in 
                                subsection (a)(2).
                  ``(B) Decedent's interest.--In this section, 
                the term `decedent's interest' means the 
                equitable title held by the last Indian owner 
                of an interest in trust or restricted lands.
          ``(2) Escheat and intestate succession.--If the 
        holder of a non-Indian estate in Indian land dies 
        without having devised or conveyed the interest of the 
        individual under paragraph (1)(A)(ii), the decedent's 
        interest in the trust or restricted land involved 
        shall--
                  ``(A) descend to the non-Indian 
                estateholder's Indian spouse or Indian heirs of 
                the first or second degree as provided for in 
                subsection (b)(3); or
                  ``(B) in the case of a decedent that does not 
                have an Indian spouse or heir of the first or 
                second degree, descend to the Indian tribe 
                having jurisdiction over the trust or 
                restricted lands.
          ``(3) Acquisition of interest by indian co-owners.--
        An Indian co-owner of a parcel of trust or restricted 
        land may prevent the escheat of an interest to the 
        tribe under paragraph (2) by paying into the estate of 
        the owner of a non-Indian estate in Indian land the 
        fair market value of the interest. If more than 1 
        Indian co-owner offers to pay for such interest, the 
        highest bidder shall obtain the interest.
          ``(4) Devise of interest.--If the owner of a non-
        Indian estate in Indian land devises the interest in 
        such land to a person who is not an Indian, at the 
        discretion of the Secretary and subject to the 
        availability of appropriations, the Secretary may, 
        pursuant to section 213, acquire such interest, with or 
        without the consent of the devisee, by depositing the 
        value of the interest in the estate of the owner of the 
        non-Indian estate in Indian land.
          ``(5) Rule of construction.--
                  ``(A) In general.--With respect to a 
                decedent's interest in trust or restricted 
                lands under this subsection, until such time as 
                an Indian or an Indian tribe acquires such 
                interest through inheritance, escheat, or 
                conveyance, the Secretary shall be treated as 
                the holder of the remainder from the life 
                estate.
                  ``(B) Limitation.--Subparagraph (A) shall not 
                be construed to authorize the Secretary to 
                retain any of the proceeds from the lease, use, 
                rents, profits, royalties, bonuses, or sale of 
                natural resources with respect to the trust or 
                restricted lands involved.
          ``(6) Descent of off-reservation lands.--
                  ``(A) Indian reservation defined.--For 
                purposes of this paragraph, the term `Indian 
                reservation' includes lands located within--
                          ``(i)(I) Oklahoma; and
                          ``(II) the boundaries of an Indian 
                        tribe's former reservation (as defined 
                        and determined by the Secretary);
                          ``(ii) the boundaries of any Indian 
                        tribe's current or former reservation; 
                        or
                          ``(iii) any area where the Secretary 
                        is required to provide special 
                        assistance or consideration of a 
                        tribe's acquisition of land or 
                        interests in land.
                  ``(B) Descent.--Upon the death of an 
                individual holding an interest in trust or 
                restricted lands that are located outside the 
                boundaries of an Indian reservation and that 
                are not subject to the jurisdiction of any 
                Indian tribe, that interest shall descend 
                either--
                          ``(i) by testate or intestate 
                        succession in trust to an Indian; or
                          ``(ii) in fee status to any other 
                        devises or heirs.
    ``(d) Approval of Agreements.--The official authorized to 
adjudicate the probate of trust or restricted lands shall have 
the authority to approve agreements between a decedent's heirs 
and devisees to consolidate interests in trust or restricted 
lands. The agreements referred to in the preceding sentence may 
include trust or restricted lands that are not a part of the 
decedent's estate that is the subject of the probate. The 
Secretary may promulgate regulations for the implementation of 
this subsection.
    ``(e) Estate Planning Assistance.--
          ``(1) In general.--The Secretary shall provide estate 
        planning assistance in accordance with this subsection, 
        to the extent amounts are appropriated for such 
        purpose.
          ``(2) Requirements.--The estate planning assistance 
        provided under paragraph (1) shall be designed to--
                  ``(A) inform, advise, and assist Indian 
                landowners with respect to estate planning in 
                order to facilitate the transfer of trust or 
                restricted lands to a devisee or devisees 
                selected by the landowners; and
                  ``(B) assist Indian landowners in accessing 
                information pursuant to section 217(g).
          ``(3) Contracts.--In carrying out this section, the 
        Secretary may enter into contracts with entities that 
        have expertise in Indian estate planning and tribal 
        probate codes.
    ``(f) Notification to Indian Tribes and Owners of Trust or 
Restricted Lands.--
          ``(1) In general.--Not later than 180 days after the 
        date of enactment of the Indian Land Consolidation Act 
        Amendments of 2000, the Secretary shall notify Indian 
        tribes and owners of trust or restricted lands of the 
        amendments made by the Indian Land Consolidation Act 
        Amendments of 2000.
          ``(2) Specifications.--The notice required under 
        paragraph (1) shall be designed to inform Indian owners 
        of trust or restricted land of--
                  ``(A) the effect of this Act, with emphasis 
                on the effect of the provisions of this 
                section, on the testate disposition and 
                intestate descent of their interests in trust 
                or restricted land; and
                  ``(B) estate planning options available to 
                the owners, including any opportunities for 
                receiving estate planning assistance or advice.
          ``(3) Requirements.--The Secretary shall provide the 
        notice required under paragraph (1)--
                  ``(A) by direct mail for those Indians with 
                interests in trust and restricted lands for 
                which the Secretary has an address for the 
                interest holder;
                  ``(B) through the Federal Register;
                  ``(C) through local newspapers in areas with 
                significant Indian populations, reservation 
                newspapers, and newspapers that are directed at 
                an Indian audience; and
                  ``(D) through any other means determined 
                appropriate by the Secretary.
          ``(4) Certification.--After providing notice under 
        this subsection, the Secretary shall certify that the 
        requirements of this subsection have been met and shall 
        publish notice of such certification in the Federal 
        Register.
          ``(5) Effective date.--The provisions of this section 
        shall not apply to the estate of an individual who dies 
        prior to the day that is 365 days after the Secretary 
        makes the certification required under paragraph (4).''

                             25 U.S.C. 2212

``Sec. 2212. Pilot Program for the Acquisition of Fractional Interests

    ``(a) Acquisition by Secretary.--
          ``(1) In general.--The Secretary may acquire, at the 
        discretion of the Secretary and with the consent of the 
        owner, except as provided in section 207(c)(4), and at 
        fair market value, any fractional interest in trust or 
        restricted lands.
          ``(2) Authority of Secretary.--
                  ``(A) In general.--The Secretary shall have 
                the authority to acquire interests in trust or 
                restricted lands under this section during the 
                3-year period beginning on the date of 
                certification that is referred to in section 
                207(f)(5).
                  ``(B) Required report.--Prior to expiration 
                of the authority provided for in subparagraph 
                (A), the Secretary shall submit the report 
                required under section 218 concerning whether 
                the program to acquire fractional interests 
                should be extended or altered to make resources 
                available to Indian tribes and individual 
                Indian landowners.
          ``(3) Interests held in trust.--Subject to section 
        214, the Secretary shall immediately hold interests 
        acquired under this Act in trust for the recognized 
        tribal government that exercises jurisdiction over the 
        reservation.
    ``(b) Requirements.--In implementing subsection (a), the 
Secretary--
          ``(1) shall promote the policies provided for in 
        section 3 of the Indian Land Consolidation Act 
        Amendments of 2000;
          ``(2) may give priority to the acquisition of 
        fractional interests representing 2 percent or less of 
        a parcel of trust or restricted land, especially those 
        interests that would have escheated to a tribe but for 
        the Supreme Court's decision in Babbitt v. Youpee, (117 
        S Ct. 727 (1997));
          ``(3) to the extent practicable--
                  ``(A) shall consult with the reservation's 
                recognized tribal government in determining 
                which tracts to acquire on a reservation;
                  ``(B) shall coordinate the acquisition 
                activities with the reservation's recognized 
                tribal government's acquisition program, 
                including a tribal land consolidation plan 
                approved pursuant to section 204; and
                  ``(C) may enter into agreements (such 
                agreements will not be subject to the 
                provisions of the Indian Self-Determination and 
                Education Assistance Act of 1974) with the 
                reservation's recognized tribal government or a 
                subordinate entity of the tribal government to 
                carry out some or all of the Secretary's land 
                acquisition program; and
          ``(4) shall minimize the administrative costs 
        associated with the land acquisition program.
    ``(c) Sale of Interest to Indian Landowners.--
          ``(1) In general.--At the request of any Indian who 
        owns at least 5 percent of the undivided interest in a 
        parcel of trust or restricted land, the Secretary shall 
        convey an interest acquired under this section to the 
        Indian landowner upon payment by the Indian landowner 
        of the amount paid for the interest by the Secretary.
          ``(2) Limitations.--
                  ``(A) Tribal consent.--If an Indian tribe 
                that has jurisdiction over a parcel of trust or 
                restricted land owns 10 percent or more of the 
                undivided interests in a parcel of such land, 
                such interest may only be acquired under 
                paragraph (1) with the consent of such Indian 
                tribe.
                  ``(B) Limitation.--With respect to a 
                conveyance under this subsection, the Secretary 
                shall not approve an application to terminate 
                the trust status or remove the restrictions of 
                such an interest.''

                             25 U.S.C. 2213

``Sec. 2213. Administration of Acquired Fractional Interests, 
                    Disposition of Proceeds

    ``(a) In General.--Subject to the conditions described in 
subsection (b)(1), an Indian tribe receiving a fractional 
interest under section 213 may, as a tenant in common with the 
other owners of the trust or restricted lands, lease the 
interest, sell the resources, consent to the granting of 
rights-of-way, or engage in any other transaction affecting the 
trust or restricted land authorized by law.
    ``(b) Conditions.--
          ``(1) In general.--The conditions described in this 
        paragraph are as follows:
                  ``(A) Except as provided in subsection (d), 
                until the purchase price paid by the Secretary 
                for an interest referred to in subsection (a) 
                has been recovered, 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) Subject to subparagraph (C), the 
                Secretary shall deposit any revenue derived 
                under subparagraph (A) into the Acquisition 
                Fund created under section 216.
                  ``(C) The Secretary shall deposit any revenue 
                that is paid under subparagraph (A) that is in 
                excess of the purchase price of the fractional 
                interest involved to the credit of the Indian 
                tribe that receives the fractional interest 
                under section 213 and the tribe shall have 
                access to such funds in the same manner as 
                other funds paid to the Secretary for the use 
                of lands held in trust for the tribe.
                  ``(D) Notwithstanding any other provision of 
                law, including section 16 of the Act of June 
                18, 1934 (commonly referred to as the `Indian 
                Reorganization Act') (48 Stat. 987, chapter 
                576; 25 U.S.C. 476), with respect to any 
                interest acquired by the Secretary under 
                section 213, the Secretary may approve a 
                transaction covered under this section on 
                behalf of a tribe until--
                          ``(i) the Secretary makes any of the 
                        findings under paragraph (2)(A); or
                          ``(ii) an amount equal to the 
                        purchase price of that interest has 
                        been paid into the Acquisition Fund 
                        created under section 216.
          ``(2) Exception.--Paragraph (1)(A) shall not apply to 
        any revenue derived from an interest in a parcel of 
        land acquired by the Secretary under section 213 
        after--
                  ``(A) the Secretary makes a finding that--
                          ``(i) the costs of administering the 
                        interest will equal or exceed the 
                        projected revenues for the parcel 
                        involved;
                          ``(ii) in the discretion of the 
                        Secretary, it will take an unreasonable 
                        period of time for the parcel to 
                        generate revenue that equals the 
                        purchase price paid for the interest; 
                        or
                          ``(iii) a subsequent decrease in the 
                        value of land or commodities associated 
                        with the 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; or
                  ``(B) an amount equal to the purchase price 
                of that interest in land has been paid into the 
                Acquisition Fund created under section 216.
    ``(c) Effect on Indian Tribe.--
          ``(1) In general.--Paragraph (2) shall apply with 
        respect to any undivided interest in allotted land held 
        by the Secretary in trust for a tribe if a lease or 
        agreement under subsection (a) is otherwise applicable 
        to such undivided interest by reason of this section 
        even though the Indian tribe did not consent to the 
        lease or agreement.
          ``(2) Application of lease.--The lease or agreement 
        described in paragraph (1) shall apply to the portion 
        of the undivided interest in allotted land described in 
        such paragraph (including entitlement of the Indian 
        tribe to payment under the lease or agreement), and the 
        Indian tribe shall not be treated as being a party to 
        the lease or agreement. Nothing in this section (or in 
        the lease or agreement) shall be construed to affect 
        the sovereignty of the Indian tribe.''

                             25 U.S.C. 2214

``Sec. 2214. Establishing Fair Market Value

    ``(a) In General.--For purposes of this Act, the Secretary 
may develop a system for establishing the fair market value of 
various types of lands and improvements. Such a system may 
include determinations of fair market value based on 
appropriate geographic units as determined by the Secretary. 
Such system may govern the amounts offered for the purchase of 
interests in trust or restricted lands under section 213.
    ``(b) Rule of Construction.--Nothing in this section shall 
be construed to prevent the owner of an interest in trust or 
restricted lands from appealing a determination of fair market 
value made in accordance with this section.''

                             25 U.S.C. 2215

``Sec. 2215. Acquisition Fund

    ``(a) In General.--The Secretary shall establish an 
Acquisition Fund to--
          ``(1) disburse appropriations authorized to 
        accomplish the purposes of section 213; and
          ``(2) collect all revenues received from the lease, 
        permit, or sale of resources from interests in trust or 
        restricted lands transferred to Indian tribes by the 
        Secretary under section 213.
    ``(b) Deposits; Use.--
          ``(1) In general.--Subject to paragraph (2), all 
        proceeds from leases, permits, or resource sales 
        derived from an interest in trust or restricted lands 
        described in subsection (a)(2) shall--
                  ``(A) be deposited in the Acquisition Fund; 
                and
                  ``(B) as specified in advance in 
                appropriations Acts, be available for the 
                purpose of acquiring additional fractional 
                interests in trust or restricted lands.
          ``(2) Maximum deposits of proceeds.--With respect to 
        the deposit of proceeds derived from an interest under 
        paragraph (1), the aggregate amount deposited under 
        that paragraph shall not exceed the purchase price of 
        that interest under section 213.''

                             25 U.S.C. 2216

``Sec. 2216. Trust and Restricted Land Transactions

    ``(a) Policy.--It is the policy of the United States to 
encourage and assist the consolidation of land ownership 
through transactions involving individual Indians and between 
Indians and a reservation's recognized tribal government in a 
manner consistent with the policy of maintaining the trust 
status of allotted lands. Nothing in this section shall be 
construed to apply to or to authorize the sale of trust or 
restricted lands to a person who is not an Indian.
    ``(b) Sales and Exchanges Between Indians and Between 
Indians and Indian Tribes.--
          ``(1) In general.--
                  ``(A) Estimate of value.--Notwithstanding any 
                other provision of law and only after the 
                Indian selling or exchanging an interest in 
                land has been provided with an estimate of the 
                value of the interest of the Indian pursuant to 
                this section--
                          ``(i) the sale or exchange of an 
                        interest in trust or restricted land 
                        may be made for an amount that is less 
                        than the fair market value of that 
                        interest; and
                          ``(ii) the approval of a transaction 
                        that is in compliance with this section 
                        shall not constitute a breach of trust 
                        by the Secretary.
                  ``(B) Waiver of requirement.--The requirement 
                for an estimate of value under subparagraph (A) 
                may be waived in writing by an Indian selling 
                or exchanging an interest in land with an 
                Indian person who is the owner's spouse, 
                brother, sister, lineal ancestor of Indian 
                blood, lineal descendant, or collateral heir.
          ``(2) Limitation.--For a period of 5 years after the 
        Secretary approves a conveyance pursuant to this 
        subsection, the Secretary shall not approve an 
        application to terminate the trust status or remove the 
        restrictions of such an interest.
    ``(c) Acquisition of Interest by Secretary.--An Indian, or 
the recognized tribal government of a reservation, in 
possession of an interest in trust or restricted lands, at 
least a portion ofwhich is in trust or restricted status on the 
date of enactment of the Indian Land Consolidation Act Amendments of 
2000 and located within a reservation, may request that the interest be 
taken into trust by the Secretary. Upon such a request, the Secretary 
shall forthwith take such interest into trust.
    ``(d) Status of Lands.--The sale or exchange of an interest 
in trust or restricted land under this section shall not affect 
the status of that land as trust or restricted land.
    ``(e) Gift Deeds.--
          ``(1) In general.--An individual owner of an interest 
        in trust or restricted land may convey that interest by 
        gift deed to--
                  ``(A) an individual Indian; or
                  ``(B) the Indian tribe that exercises 
                jurisdiction over that land.
          ``(2) Special rule.--With respect to any gift deed 
        conveyed under this section, the Secretary shall not 
        require an appraisal and the transaction shall be 
        consistent with this Act and any other provision of 
        Federal law.
    ``(f) No Termination.--During the 7-year period beginning 
on the date on which the Secretary approves a conveyance of an 
interest in trust or restricted land under subsection (e), the 
Secretary shall not approve an application to terminate the 
trust status of, or remove the restrictions on, such an 
interest.
    ``(g) Land Ownership Information.--Notwithstanding any 
other provision of law, the names and mailing addresses of the 
Indian owners of trust or restricted lands, and information on 
the location of the parcel and the percentage of undivided 
interest owned by each individual, or of any interest in trust 
or restricted lands, shall, upon written request, be made 
available to--
          ``(1) other Indian owners of interests in trust or 
        restricted lands within the same reservation;
          ``(2) the tribe that exercises jurisdiction over the 
        reservation where the parcel is located or any person 
        who is eligible for membership in that tribe; and
          ``(3) prospective applicants for the leasing, use, or 
        consolidation of such trust or restricted land or the 
        interest in trust or restricted lands.''

                             25 U.S.C. 2217

``Sec. 2217. Reports to Congress

    ``(a) In General.--Prior to expiration of the authority 
provided for in section 213(a)(2)(A), the Secretary, after 
consultation with Indian tribes and other interested parties, 
shall submit to the Committee on Indian Affairs and the 
Committee on Energy and Natural Resources of the Senate and the 
Committee on Resources of the House of Representatives a report 
that indicates, for the period covered by the report--
          ``(1) the number of fractional interests in trust or 
        restricted lands acquired; and
          ``(2) the impact of the resulting reduction in the 
        number of such fractional interests on the financial 
        and realty recordkeeping systems of the Bureau of 
        Indian Affairs.
    ``(b) Report.--The reports described in subsection (a) and 
section 213(a) shall contain findings as to whether the program 
under this Act to acquire fractional interests in trust or 
restricted lands should be extended and whether such program 
should be altered to make resources available to Indian tribes 
and individual Indian landowners.''

                             25 U.S.C. 2218

``Sec. 2218. Approval of Leases, Rights-of-Way, and Sales of Natural 
                    Resources

    ``(a) Approval by the Secretary.--
          ``(1) In general.--Notwithstanding any other 
        provision of law, the Secretary may approve any lease 
        or agreement that affects individually owned allotted 
        land, if--
                  ``(A) the owners of not less than the 
                applicable percentage (determined under 
                subsection (b)) of the undivided interest in 
                the allotted land that is covered by the lease 
                or agreement consent in writing to the lease or 
                agreement; and
                  ``(B) the Secretary determines that approving 
                the lease or agreement is in the best interest 
                of the owners of the undivided interest in the 
                allotted land.
          ``(2) Rule of construction.--Nothing in this section 
        shall be construed to apply to leases involving coal or 
        uranium.
    ``(b) Applicable Percentage.--
          ``(1) Percentage interest.--The applicable percentage 
        referred to in subsection (a)(1) shall be determined as 
        follows:
                  ``(A) If there are 5 or fewer owners of the 
                undivided interest in the allotted land, the 
                applicable percentage shall be 100 percent.
                  ``(B) If there are more than 5 such owners, 
                but fewer than 11 such owners, the applicable 
                percentage shall be 80 percent.
                  ``(C) If there are more than 10 such owners, 
                but fewer than 20 such owners, the applicable 
                percentage shall be 60 percent.
                  ``(D) If there are 20 or more such owners, 
                the applicable percentage shall be a majority 
                of the interests in the allotted land.
          ``(2) Determination of owners.--
                  ``(A) In general.--For purposes of this 
                subsection, in determining the number of owners 
                of, and their interests in, the undivided 
                interest in the allotted land with respect to a 
                lease or agreement, the Secretary shall make 
                such determination based on the records of the 
                Department of the Interior that identify the 
                owners of such lands and their interests and 
                the number of owners of such land on the date 
                on which the lease or agreement involved is 
                submitted to the Secretary under this section.
                  ``(B) Rule of construction.--Nothing in 
                subparagraph (A) shall be construed to 
                authorize the Secretary to treat an Indian 
                tribe as the owner of an interest in allotted 
                land that did not escheat to the tribe pursuant 
                to section 207 as a result of the Supreme 
                Court's decision in Babbitt v. Youpee, (117 S 
                Ct. 727 (1997)).
    ``(c) Authority of Secretary to Sign Lease or Agreement on 
Behalf of Certain Owners.--The Secretary may give written 
consent to a lease or agreement under subsection (a)--
          ``(1) on behalf of the individual Indian owner if the 
        owner is deceased and the heirs to, or devisees of, the 
        interest of the deceased owner have not been 
        determined; or
          ``(2) on behalf of any heir or devisee referred to in 
        paragraph (1) if the heir or devisee has been 
        determined but cannot be located
    ``(d) Effect of Approval.--
          ``(1) Application to all parties.--
                  ``(A) In general.--Subject to paragraph (2), 
                a lease or agreement approved by the Secretary 
                under subsection (a) shall be binding on the 
                parties described in subparagraph (B), to the 
                same extent as if all of the owners of the 
                undivided interest in allotted land covered under 
                the lease or agreement consented to the lease or 
                agreement.
                  ``(B) Description of parties.--The parties 
                referred to in subparagraph (A) are--
                          ``(i) the owners of the undivided 
                        interest in the allotted land covered 
                        under the lease or agreement referred 
                        to in such subparagraph; and
                          ``(ii) all other parties to the lease 
                        or agreement.
          ``(2) Effect on indian tribe.--
                  ``(A) In general.--Subparagraph (B) shall 
                apply with respect to any undivided interest in 
                allotted land held by the Secretary in trust 
                for a tribe if a lease or agreement under 
                subsection (a) is otherwise applicable to such 
                undivided interest by reason of this section 
                even though the Indian tribe did not consent to 
                the lease or agreement.
                  ``(B) Application of lease.--The lease or 
                agreement described in subparagraph (A) shall 
                apply to the portion of the undivided interest 
                in allotted land described in such paragraph 
                (including entitlement of the Indian tribe to 
                payment under the lease or agreement), and the 
                Indian tribe shall not be treated as being a 
                party to the lease or agreement. Nothing in 
                this section (or in the lease or agreement) 
                shall be construed to affect the sovereignty of 
                the Indian tribe.
    ``(e) Distribution of Proceeds.--
          ``(1) In general.--The proceeds derived from a lease 
        or agreement that is approved by the Secretary under 
        subsection (a) shall be distributed to all owners of 
        undivided interest in the allotted land covered under 
        the lease or agreement.
          ``(2) Determination of amounts distributed.--The 
        amount of the proceeds under paragraph (1) that are 
        distributed to each owner under that paragraph shall be 
        determined in accordance with the portion of the 
        undivided interest in the allotted land covered under 
        the lease or agreement that is owned by that owner.
    ``(f) Rule of Construction.--Nothing in this section shall 
be construed to amend or modify the provisions of Public Law 
105-188 (25 U.S.C. 396 note), the American Indian Agricultural 
Resources Management Act (25 U.S.C. 3701 et seq.) or any other 
Act that provides specific standards for the percentage of 
ownership interest that must approve a lease or agreement on a 
specified reservation.''

                             25 U.S.C. 2219

``Sec. 2219. Application to Alaska

    ``(a) Findings.--Congress find that--
          ``(1) numerous academic and governmental 
        organizations have studied the nature and extent of 
        fractionated ownership of Indian land outside of Alaska 
        and have proposed solutions to this problem; and
          ``(2) despite these studies, there has not been a 
        comparable effort to analyze the problem, if any, of 
        fractionated ownership in Alaska.
    ``(b) Application of Act to Alaska.--Except as provided in 
this section, this Act shall not apply to land located within 
Alaska.
    ``(c) Rule of Construction.--Nothing in this section shall 
be construed to constitute a ratification of any determination 
by any agency, instrumentality, or court of the United States 
that may support the assertion of tribal jurisdiction over 
allotment lands or interests in such land in Alaska.''.

SEC. 5. JUDICIAL REVIEW.

    Notwithstanding section 207(f)(5) of the Indian Land 
Consolidation Act (25 U.S.C. 2206(f)(5)), after the Secretary 
of Interior provides the certification required under section 
207(f)(4) of such Act, the owner of an interest in trust or 
restricted land may bring an administrative action to challenge 
the application of such section 207 to their interest in trust 
or restricted lands, and may seek judicial review of the final 
decision of the Secretary of Interior with respect to such 
challenge.

SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated not to exceed 
$8,000,000 for fiscal year 2001 and each subsequent fiscal year 
to carry out the provisions of this Act (and the amendments 
made by this Act) that are not otherwise funded under the 
authority provided for in any other provision of Federal law.

                             25 U.S.C. 331

[Sec. 25 U.S.C. 331. Allotments on reservations; irrigable and 
                    nonirrigable lands

    [In all cases where any tribe or band of Indians has been 
or shall be located upon any reservation created for their use 
by treaty stipulation, Act of Congress, or executive order, the 
President shall be authorized to cause the same or any part 
thereof to be surveyed or resurveyed whenever in his opinion 
such reservation or any part may be advantageously utilized for 
agricultural or grazing purposes by such Indians, and to cause 
allotment to each Indian located thereon to be made in such 
areas as in his opinion may be for their best interest not to 
exceed eighty acres of agricultural or one hundred and sixty 
acres of grazing land to any one Indian. And whenever it shall 
appear to the President that lands on any Indian reservation 
subject to allotment by authority of law have been or may be 
brought within any irrigation project, he may cause allotments 
of such irrigable lands to be made to the Indians entitled 
thereto in such areas as may be for their best interest, not to 
exceed, however, forty acres to any one Indian, and such 
irrigable land shall be held to be equal in quantity to twice 
the number of acres of nonirrigable agricultural land and four 
times the number of acres of nonirrigable grazing land: 
Provided, That the remaining area to which any Indian may be 
entitled under existing law after he shall have received his 
proportion of irrigable land on the basis of equalization 
herein established may be allotted to him from nonirrigable 
agricultural or grazing lands: Provided further, That where a 
treaty or Act of Congress setting apart such reservation 
provides for allotments in severalty in quantity greater or 
less than that herein authorized, the President shall cause 
allotments on such reservations to be made in quantity as 
specified in such treaty or Act, subject, however, to the basis 
of equalization between irrigable and nonirrigable lands 
established herein, but in such cases allotments may be made in 
quantity as specified herein, with the consent of the Indians 
expressed in such manner as the President in his discretion may 
require.]

                             25 U.S.C. 332

[Sec. 25 U.S.C. 332. Selection of allotments

    [All allotments set apart under the provisions of this act 
shall be selected by the Indians, heads of families selecting 
for their minor children, and the agents shall select for each 
orphan child, and in such manner as to embrace the improvements 
of the Indians making the selection. Where the improvements of 
two or more Indians have been made on the same legal 
subdivision of land, unless they shall otherwise agree, a 
provisional line may be run dividing said lands between them, 
and the amount to which each is entitled shall be equalized in 
the assignment of the remainder of the land to which they are 
entitled under said sections: Provided, That if any one 
entitled to an allotment shall fail to make a selection within 
four years after the President shall direct that allotments may 
be made on a particular reservation, the Secretary of the 
Interior may direct the agent of such tribe or band, if such 
there be, and if there be no agent, then a special agent 
appointed for that purpose, to make a selection for such 
Indian, which selection shall be allotted as in cases where 
selections are made by the Indians, and patents shall issue in 
like manner.]

                             25 U.S.C. 333

[Sec. 25 U.S.C. 333. Making of allotments by agents

    [The allotments provided for in this Act shall be made by 
special agents appointed by the President for such purpose, and 
the superintendents or agents in charge of the respective 
reservations on which the allotments are directed to be made, 
or, in the discretion of the Secretary of the Interior, such 
allotments may be made by the superintendent or agent in charge 
of such reservation, under such rules and regulations as the 
Secretary of the Interior may from time to time prescribe, and 
shall be certified by such special allotting agents, 
superintendents, or agents to the Commissioner of Indian 
Affairs, in duplicate, one copy to be retained in the Indian 
Office and the other to be transmitted to the Secretary of the 
Interior for his action, and to be deposited in the Bureau of 
Land Management.]

                             25 U.S.C. 348

Sec. 25 U.S.C. 348. Patents to be held in trust; descent and partition

    Upon the approval of the allotments provided for in this 
Act by the Secretary of the Interior, he shall cause patents to 
issue therefor in the name of the allottees, which patents 
shall be of the legal effect, and declare that the United 
States does and will hold the land thus allotted, for the 
period of twenty-five years, in trust for the sole use and 
benefit of the Indian to whom such allotment shall have been 
made, or, in case of his decease, of his heirs according to the 
laws of the State or Territory where such land is located, and 
that at the expiration of said period the United States will 
convey the same by patent to said Indian, or his heirs as 
aforesaid, in fee, discharged of said trust and free of all 
charge or incumbrance whatsoever: Provided, That the President 
of the United States may in any case in his discretion extend 
the period. And if any conveyance shall be made of the lands 
set apart and allotted as herein provided, or any contract made 
touching the same, before the expiration of the time above 
mentioned, such conveyance or contract shall be absolutely null 
and void: Provided, That the law of descent [and partition] in 
force in the State or Territory where such lands are situated 
shall apply thereto after patents therefor have been executed 
and delivered, [except] except as provided by the Indian Land 
Consolidation Act or a tribal probate code approved under such 
Act and as herein otherwise provided: And provided further, 
That at any time after lands have been allotted to all the 
Indians of any tribe as herein provided, or sooner if in the 
opinion of the President it shall be for the best interests of 
said tribe, it shall be lawful for the Secretary of the 
Interior to negotiate with such Indian tribe for the purchase 
and release by said tribe, in conformity with the treaty or 
statute under which such reservation is held, of such portions 
of its reservation not allotted as such tribe shall, from time 
to time, consent to sell, on such terms and conditions as shall 
be considered just and equitable between the United States and 
said tribe of Indians, which purchase shall not be complete 
until ratified by Congress, and the form and manner of 
executing such release shall also be prescribed by Congress: 
Provided, however, That all lands adapted to agriculture, with 
or without irrigation so sold or released to the United States 
by any Indian tribe shall be held by the United States for the 
sole purpose of securing homes to actual settlers and shall be 
disposed of by the United States to actual and bona fide 
settlers only in tracts not exceeding one hundred and sixty 
acres to any one person, on such terms as Congress shall 
prescribe, subject to grants which Congress may make in aid of 
education: And provided further, That no patents shall issue 
therefor except to the person so taking the same as and for a 
homestead, or his heirs, and after the expiration of five 
years' occupancy thereof as such homestead; and any conveyance 
of said lands so taken as a homestead, or any contract touching 
the same, or lien thereon, created prior to the date of such 
patent, shall be null and void. And the sums agreed to be paid 
by the United States as purchase money for any portion of any 
such reservation shall be held in the Treasury of the United 
States for the sole use of the tribe or tribes of Indians; to 
whom such reservations belonged; and the same, with interest 
thereon at 3 per centum per annum, shall be at all times 
subject to appropriation by Congress for the education and 
civilization of such tribe or tribes of Indians or the members 
thereof. The patents aforesaid shall be recorded in the Bureau 
of Land Management, and afterwards delivered, free of charge, 
to the allottee entitled thereto. And if any religious society 
or other organization was occupying on February 8, 1887, any of 
the public lands to which this Act is applicable, for religious 
or educational work among the Indians, the Secretary of the 
Interior is authorized to confirm such occupation to such 
society or organization, in quantity not exceeding one hundred 
and sixty acres in any one tract, so long as the same shall be 
so occupied, on such terms as he shall deem just; but nothing 
herein contained shall change or alter any claim of such 
society for religious or educational purposes heretofore 
granted by law. And in the employment of Indian police, or any 
other employees in the public service among any of the Indian 
tribes or bands affected by this Act, and where Indians can 
perform the duties required, those Indians who have availed 
themselves of the provisions of this Act and become citizens of 
the United States shall be preferred.

                             25 U.S.C. 372

Sec. 25 U.S.C. 372. Ascertainment of heirs of deceased allottees; 
                    settlement of estates; sale of lands; deposit of 
                    Indian moneys

    When any Indian to whom an allotment of land has been made, 
or may hereafter be made, dies before the expiration of the 
trust period and before the issuance of a fee simple patent, 
without having made a will disposing of said allotment as 
hereinafter provided, the Secretary of the Interior, upon 
notice and hearing, [under] under the Indian Land Consolidation 
Act or a tribalprobate code approved under such Act and 
pursuant to such rules as he may prescribe, shall ascertain the legal 
heirs of such decedent, and his decisions shall be subject to judicial 
review to the same extent as determinations rendered under section 373 
of this title. If the Secretary of the Interior decides the heir or 
heirs of such decedent competent to manage their own affairs, he shall 
issue to such heir or heirs a patent in fee for the allotment of such 
decedent; if he shall decide one or more of the heirs to be 
incompetent, he may, in his discretion, cause such lands to be sold:
    Provided, That if the Secretary of the Interior shall find 
that the lands of the decedent are capable of partition to the 
advantage of the heirs, he may cause the shares of such as are 
competent, upon their petition, to be set aside and patents in 
fee to be issued to them therefor. All sales of lands allotted 
to Indians authorized by this or any other Act shall be made 
under such rules and regulations and upon such terms as the 
Secretary of the Interior may prescribe, and he shall require a 
deposit of 10 per centum of the purchase price at the time of 
the sale. Should the purchaser fail to comply with the terms of 
sale prescribed by the Secretary of the Interior, the amount so 
paid shall be forfeited; in case the balance of the purchase 
price is to be paid on such deferred payments, all payments 
made, together with all interest paid on such deferred 
installments, shall be so forfeited for failure to comply with 
the terms of the sale. All forfeitures shall inure to the 
benefit of the allottee or his heirs. Upon payment of the 
purchase price in full, the Secretary of the Interior shall 
cause to be issued to the purchaser patent in fee for such 
land: Provided, That the proceeds of the sale of inherited 
lands shall be paid to such heir or heirs as may be competent 
and held in trust subject to use and expenditure during the 
trust period for such heir or heirs as may be incompetent as 
their respective interests shall appear: Provided further, That 
the Secretary of the Interior is authorized, in his discretion, 
to issue a certificate of competency, upon application 
therefor, to any Indian, or in case of his death to his heirs, 
to whom a patent in fee containing restrictions on alienation 
has been or may hereafter be issued, and such certificate shall 
have the effect of removing the restrictions on alienation 
contained in such patent: Provided further, That any United 
States Indian agent, superintendent, or other disbursing agent 
of the Indian Service may deposit Indian moneys, individual or 
tribal, coming into his hands as custodian, in such bank or 
banks as he may select: Provided, That the bank or banks so 
selected by him shall first execute to the said disbursing 
agent a bond, with approved surety, in such amount as will 
properly safeguard the funds to be deposited. Such bonds shall 
be subject to the approval of the Secretary of the Interior.

                             25 U.S.C. 373

Sec. 25 U.S.C. 373. Disposal by will of allotments held under trust

    Any persons of the age of eighteen years or older having 
any right, title, or interest in any allotment held under trust 
or other patent containing restrictions on alienation or 
individual Indian moneys or other property held in trust by the 
United States shall have the right prior to the expiration of 
the trust or restrictive period, and before the issuance of a 
fee simple patent or the removal of restrictions, to dispose of 
such property by will, in accordance [with regulations] with 
the Indian Land Consolidation Act or a tribal probate code 
approved under such Act and regulations to be prescribed by the 
Secretary of the Interior: Provided, however, That no will so 
executed shall be valid or have any force or effect unless and 
until it shall have been approved by the Secretary of the 
Interior: Provided further, That the Secretary of the Interior 
may approve or disapprove the will either before or after the 
death of the testator, and in case where a will has been 
approved and it is subsequently discovered that there has been 
fraud in connection with the execution or procurement of the 
will the Secretary of the Interior is authorized within one 
year after the death of the testator to cancel the approval of 
the will, and the property of the testator shall thereupon 
descend or be distributed in accordance with the laws of the 
State wherein the property is located: Provided further, That 
the approval of the will and the death of the testator shall 
not operate to terminate the trust or restrictive period, but 
the Secretary of the Interior may, in his discretion, cause the 
lands to be sold and the money derived therefrom, or so much 
thereof as may be necessary, used for the benefit of the heir 
or heirs entitled thereto, remove the restrictions, or cause 
patent in fee to be issued to the devisee or devisees, and pay 
the moneys to the legatee or legatees either in whole or in 
part from time to time as he may deem advisable, or use it for 
their benefit: Provided also, That this section and section 372 
of this title shall not apply to the Five Civilized Tribes or 
the Osage Indians.

                             25 U.S.C. 464

Sec. 25 U.S.C. 464. Transfer of restricted Indian lands or shares in 
                    assets of Indian tribes or corporation; exchange of 
                    lands

    Except as provided in sections 461, 462, 463, 464, 465, 466 
to 470, 471 to 473, 474, 475, 476 to 478, and 479 of this 
title, no sale, devise, gift, exchange, or other transfer of 
restricted Indian lands or of shares in the assets of any 
Indian tribe or corporation organized hereunder, shall be made 
or approved: Provided, however, That such lands or interests 
may, with the approval of the Secretary of the Interior, be 
sold, devised, or otherwise transferred to the Indian tribe in 
which the lands or shares are located or from which the shares 
were derived or to a successor corporation; and in all 
instances such lands or interests shall descend or be devised, 
in accordance with the then existing laws of the State, or 
Federal laws where applicable, in which said lands are located 
or in which the subject matter of the corporation is located, 
to any member of such tribe or of such corporation or any heirs 
or lineal descendants of such member or any other Indian person 
for whom the Secretary of the Interior determines that the 
United States may hold in [trust:] trust, except as provided by 
the Indian Land Consolidation Act: Provided further, That the 
Secretary of the Interior may authorize voluntary exchanges of 
lands of equal value and the voluntary exchange of shares of 
equal value whenever such exchange, in his judgment, is 
expedient and beneficial for or compatible with the proper 
consolidation of Indian lands and for the benefit of 
cooperative organizations.

                                  
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