[Senate Report 106-361]
[From the U.S. Government Publishing Office]
Calendar No. 714
106th Congress Report
SENATE
2d Session 106-361
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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\
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\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\
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\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.)
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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\
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\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\
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\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\
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\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.