[House Report 108-656]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 108-656
======================================================================
AMERICAN INDIAN PROBATE REFORM ACT OF 2004
_______
September 7, 2004.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
[To accompany S. 1721]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill (S.
1721) to amend the Indian Land Consolidation Act to improve
provisions relating to probate of trust and restricted land,
and for other purposes, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
Purpose of the Bill
The purpose of S. 1721 is to amend the Indian Land
Consolidation Act to improve provisions relating to probate of
trust and restricted land, and for other purposes.
Background and Need for Legislation
S. 1721 amends the Indian Land Consolidation Act (25 U.S.C.
2201 et seq., ILCA) to address the worsening problem of
fractionation of trust and restricted lands owned by individual
Indians. The bill provides a new, uniform federal probate code
applicable to such lands, incentives for Indians to write
wills, and mechanisms for the Department of the Interior,
tribes and individual Indians to consolidated highly
fractionated Indian lands.
Beginning under the General Allotment Act of 1887 (also
called the ``Dawes Act''), Indian tribal lands were allocated
to individual Indians in 40- to 160-acre allotments. The
intention was to forcibly assimilate Indians by breaking up
their reservations. This policy was deemed by Congress to be a
failure and was accordingly ended in 1934. As a result of the
allotment process, almost 11 million acres of lands are now
held in trust or restricted status by the United States for
individual Indians. The Department of the Interior is
responsible for managing the properties and the monies produced
from revenue-producing activities on them.
Individual Indian trust lands are subject to state
intestacy laws, which generally provide for each heir to
receive an equal share of the undivided interest in a parcel of
land when the deceased owner does not leave a valid will.
Historically, most Indian owners of the allotted trust lands
have died without leaving a will. This phenomenon has led to
exponentially-increasing fractionation of interests in land as
each generation passes. It is common for dozens or even
hundreds of Indians to own equal, undivided shares in a parcel
of trust land.
Such fractionated interests are extremely difficult to
administer, and managing them often costs far more than the
land economically produces, harming the Department's ability to
manage the properties as well as the owners' ability to derive
any value from them. During a June 23, 2004, Committee on
Resources hearing on S. 1721, the Interior Department's
witness, Ross O. Swimmer, Special Trustee for American Indians,
elaborated on the nature and extent of the problem:
In 1992 the General Accounting Office (GAO) conducted
an audit of 12 reservations to determine the severity
of fractionation on those reservations. The GAO found
that on the 12 reservations upon which it compiled
data, there were approximately 80,000 discrete owners
but, because of fractionation, there were over a
million ownership records associated with those owners.
The GAO also found that if the land was physically
divided by the fractional interests, many of these
interests would represent less than one square foot of
ground. In early 2002, the Department attempted to
replicate the audit methodology used by the GAO and to
update the GAO report data to assess the continued
growth of fractionation and found that it grew by over
40 percent between 1992 and 2002.
As an example of continuing fractionation, consider a
real tract identified in 1987 in Hodel v. Irving, 481
U.S. 704 (1987):
Tract 1305 is 40 acres and produces $1,080 in income
annually. It is valued at $8,000. It has 439 owners,
one-third of whom receive less than $.05 in annual rent
and two-thirds of whom receive less than $1. The
largest interest holder receives $82.85 annually. The
common denominator used to compute fractional interests
in the property is 3,394,923,840,000. The smallest heir
receives $.01 every 177 years. If the tract were sold
(assuming the 439 owners could agree) for its estimated
$8,000 value, he would be entitled to $.000418. The
administrative costs of handling this tract are
estimated by the BIA at $17,560 annually.
Today, this tract produces $2,000 in income annually
and is valued at $22,000. It now has 505 owners but the
common denominator used to compute fractional interests
has grown to 220,670,049,600,000. If the tract were
sold (assuming the 505 owners could agree) for its
estimated $22,000 value, the smallest heir would now be
entitled to $.00001824.
Fractionation is at the heart of the Cobell v. Norton
litigation. Unless a new, uniform federal probate code is
enacted, fractionation will worsen, leading to skyrocketing
administration costs for the Interior Department, continued
diminishment in value to the land owners, and potentially more
litigation.
The Indian Land Consolidation Act
Congress enacted ILCA in 1983 to address Indian land
fractionation problems by--
(1) Authorizing Indian tribes to establish land
consolidation plans (section 204);
(2) Authorizing Indian tribes to acquire an entire
parcel of trust land with the consent of the majority
of the parcel's owners (section 205);
(3) Authorizing the Secretary of the Interior to
approve tribal probate codes, including provisions that
limit devise or descent to non-member Indians or non-
Indians (section 206); and
(4) Providing that both devise and descent were
inapplicable to any fractional interest 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; instead, such interests were to
escheat to the tribe (section 207).
Certain provisions in the ILCA were criticized soon after
it was enacted. Most criticism targeted the escheat provision
in section 207 as a potential taking of property. A lawsuit
concerning this provision was filed shortly after enactment. In
the meantime, ILCA was amended in 1984 to address concerns
raised by Indian tribes and individual Indian landowners.
In 1987, the Supreme Court found the escheat provision in
the 1983 version of ILCA to be an unconstitutional taking
because it abolishes both descent and devise of the
propertyinterests at stake. The Court held that escheat could be
constitutional if it were part of a system in which the law allows the
landowner to devise his property but he dies intestate. The 1984
amendments were found to be unconstitutional as well in 1997.
Further amendments to ILCA were enacted in 2000 (Public Law
106-462). The purpose of the 2000 amendments was to prevent
further fractionation of Indian trust allotments, consolidate
fractional interests and their ownership into usable parcels,
consolidate those interests in a manner that enhances tribal
sovereignty, promote tribal self-sufficiency and self-
determination, and reverse the effects of the allotment policy
on Indian tribes. The 2000 amendments contained new inheritance
restrictions, and mechanisms to consolidate fractionated
parcels of land.
While most of the 2000 amendments are in force today,
including a successful pilot program to acquire fractionated
interests, the inheritance restrictions under ILCA's probate
code are not effective because the Secretary of the Interior,
at Congress' behest, has not performed a certification required
to make them effective.
Under the 2000 amendments, many Indian owners of trust or
restricted interests in Indian lands would be unable to devise
anything more than a life estate in those interests--or to have
the interests pass by intestate succession--to their own
children or grandchildren who were not Indian as defined in
ILCA. Indian landowners and tribal representatives expressed
great concern over the limitations placed on landowners by the
intestate and testamentary provisions of the 2000 amendments,
and indicated that some landowners have submitted, or were
prepared to submit, applications for fee patents of their
interests to avoid the limitations of the federal probate code
and to assure their ability to devise the property to their
children or other family members.
This unfortunate result was never intended to happen with
the 2000 amendments. To the contrary, the 2000 amendments were
an effort to preserve the trust status of individual Indian
lands, and to build on the federal Indian policy reflected by
the enactment of the Indian Reorganization Act of 1934,
including the 1934 Act's indefinite extension of the trust and
restricted period on Indian lands and its repudiation of laws
from an earlier period that facilitated the unilateral issuance
of fee patents to owners of Indian trust land, even over their
protests. Therefore, in addition to addressing the alarming
rate of fractionation of Indian lands, S. 1721 is intended to
address the concerns of Indian landowners and their advocates
over the impact that the probate code in the 2000 amendments
would have if it were to be certified.
At the Committee on Resources hearing on S. 1721, the
Department of the Interior's witness testified that the 2000
amendments are complicated difficult to administer, and the
goals of consolidating trust lands are not being met. Although
the pilot land acquisition program in the Bureau of Indian
Affairs's Midwest Regional Office has proven to be effective,
the rate of fractionation of other interests has been so great
that the same number of outstanding interests exist today on
the three reservations where the pilot program is operating as
when the program began four years ago.
How S. 1721 works
S. 1721 provides stronger measures to slow and halt the
continued fractionation of Indian lands and to consolidate
fractionated interests. The general rules of intestate
succession in S. 1721 would limit both the number of successive
classes of potential heirs standing to inherit an interest
before the interest would pass to the Indian tribe, and the
eligibility for membership within each such class. In addition,
the uniform probate code in S. 1721 has a special ``single heir
rule'' applicable to small interests that are not passed under
a valid will; a small interest basically means any trust or
restricted interest in land in the decedent's estate that
represents less than 5% of the entire undivided ownership of
the parcel of which it is a part.
The single heir rule is intended to place a ``floor'' on
fractionation resulting from intestate succession. It provides
owners of trust or restricted land with a strong incentive to
write wills. The rule would reduce the number of classes of
potential eligible heirs standing to inherit these small
interests by intestate succession to just three--children,
grandchildren, and great grandchildren--and would make only one
person in each successive class, the oldest ``eligible heir,''
the heir of the interest. If there is no eligible heir in any
of the three classes, the interest passes to the Indian tribe
with jurisdiction over the interest. It is important to note,
however, that S. 1721 would expressly allow the owners of trust
and restricted interests to avoid the application of the single
heir rule by disposing of the interest by executing a will.
While the intestate provisions of S. 1721 limit the range
of eligible heirs, its testamentary provisions give owners of
trust and restricted interests in land and trust personalty a
very wide range of testamentary options. Specifically, the
landowner may devise such interests in trust or restricted
status to his or her lineal descendants, to any other person
who owns another trust or restricted interest in the same
parcel, to the Indian tribe, or to any Indian, or the landowner
may also devise the interest: (1) as a life estate to any
person; or (2) as an unrestricted fee interest to any person
who is not Indian, as defined in ILCA (including the testator's
non-Indian lineal descendants, provided they are not
``Indian'').
The probate code under S. 1721 would thus provide
landowners with a strong incentive to write wills rather than
simply ``default'' to the law of intestate succession, which,
even under the narrow rules of the bill's probate code, would
inevitably lead to some fractionation. At the same time,
because landowners would have real testamentary choices under
S. 1721, the constitutionality issues enunciated in Supreme
Court rulings concerning ILCA have been addressed.
S. 1721 includes mechanisms beyond the probate code that
are intended to facilitate the consolidation of fractional
interests. For example, section 4 creates a process for the
partition by sale of certain highly fractionated Indian lands.
This provision would allow certain owners of undivided
interests in tracts of land that meet the definition of
``highly fractionated'' to request that the Secretary of the
Interior partition the property by sale. Another example of a
consolidating mechanism in S. 1721 is an amendment to ILCA that
would allow the co-owners of trust or restricted interests, co-
heirs and the Indian tribe to purchase, at not less than fair
market value, fractional interests in a decedent's estate prior
to entry of the order distributing theestate. Under this
provision, the heir's consent would be required--except where the
heir's interest is less than 5% of the entire undivided ownership of
the parcel of which it is a part and such interest is passed without a
will.
It should be noted that in his testimony before the
Committee on Resources hearing on S. 1721, the Department of
the Interior's witness requested the Committee's consideration
of certain technical amendments and an amendment to address a
problem in a certain Supreme Court case. Responding to
questions regarding the need for such amendments in light of
the relatively few legislative days remaining in the 108th
Congress, the witness testified that in the Department's view
it is much more important to enact S. 1721 without any further
delay than to risk sending the bill back to the Senate with
amendments; he noted that such amendments can wait to be
considered in the context of separate legislation.
Committee Action
S. 1721 was introduced on October 14, 2003, by Senator Ben
Nighthorse Campbell (R-CO). The bill passed the Senate with an
amendment by unanimous consent on June 2, 2004. In the House of
Representatives, the bill was referred to the Committee on
Resources. On June 23, 2004, the Full Resources Committee held
a hearing on the bill. On July 14, 2004, the Full Resources
Committee met to consider the bill. No amendments were offered
and the bill was then ordered favorably reported to the House
of Representatives by unanimous consent.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. According to the Congressional Budget Office,
enacting this bill would increase direct spending, but any such
increases would be less than $200,000 in fiscal year 2005 and
in negligible amounts thereafter.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Indian Land
Consolidation Act to improve provisions relating to probate of
trust and restricted land, and for other purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 22, 2004.
Hon. Richard W. Pombo,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1721, the American
Indian Probate Reform Act of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 1721--American Indian Probate Reform Act of 2004
Summary: S. 1721 would amend laws that regulate how the
ownership of interests in Indian trust or restricted land
(certain parcels of land that are owned by individuals or
groups) is transferred upon the death of the owner. CBO
estimates that implementing the legislation would cost $25
million in 2005 and $457 million over the 2005-2009 period for
the Secretary of the Interior to acquire interests in trust or
restricted land and to administer the grant and loan programs
that would be established under the act. This activity is known
as Indian land consolidation, and costs for this purpose would
be subject to appropriation of the necessary sums. Most of the
costs would stem from specified authorization in S. 1721.
S. 1721 also would authorize the Secretary of the Interior
to acquire certain interests in Indian trust or restricted land
using revenue collected from leasing of natural resources on
Indian land that has been acquired by the Secretary or from the
sale of such land. Because such acquisitions could be made
without appropriations, enacting S. 1721 would increase direct
spending, but CBO estimates those costs would be less than
$500,000 in each year over the 2005-2014 period.
S. 1721 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
significant costs on state, local, or tribal governments.
S. 1721 contains two private-sector mandates as defined in
UMRA. The act would impose a private-sector mandate on
individuals who would otherwise inherit interests in Indian
trust or restricted lands under current law. The act also would
allow the Secretary of the Interior to partition parcels of
Indian land for sale under certain conditions. In the event
that land is partitioned for sale without the consent of all
the interest owners, S. 1721 would impose a private-sector
mandate on those not consenting to the partition. CBO estimates
that the direct cost of mandates in the act would fall below
the annual threshold established by UMRA forprivate-sector
mandates ($120 million in 2004, adjusted annually for inflation). The
act also may benefit interest owners in Indian trust and restricted
lands since it would remove certain restrictions on the use of such
lands.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1721 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--
-----------------------------------------
2004 2005 2006 2007 2008 2009
------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending for Indian land
consolidation under current
law:
Budget authority.......... 22 0 0 0 0 0
Estimated outlays......... 13 12 5 2 0 0
Proposed changes:
Purchase of Indian trust
and restricted land by
the Secretary of the
Interior:
Authorization level... 0 75 95 145 145 145
Estimated outlays..... 0 23 59 97 128 140
Tribal grants to develop
probate codes and estate
planning:
Estimated 0 2 2 2 2 2
authorization level..
Estimated outlays..... 0 2 2 2 2 2
Grants and loans to
Indians to purchase
partitions at auction:
Estimated 0 * * * * *
authorization level..
Estimated outlays..... 0 * * * * *
Total proposed changes:
Enacted authorization 0 77 79 147 147 147
level................
Estimated outlays..... 0 25 61 99 130 142
Total spending under S. 1721:
Estimated authorization 22 77 97 147 147 147
level....................
Estimated outlays......... 13 37 66 101 130 142
------------------------------------------------------------------------
Note.--*=less than $500,000.
Basis of estimate: For this estimate, CBO assumes that S.
1721 will be enacted near the beginning of fiscal year 2005 and
that the authorized and estimated amounts will be appropriated
for each year. We also assume that outlays will follow the
historical spending pattern of 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 on ownership to their descendants.
The Cost to the Bureau of Indian Affairs (BIA) to administer
ownership of this property has also grown. S. 1721 would modify
the Indian Land Consolidation Act, which attempts to prevent
further partitioning of such land.
Spending subject to appropriation
S. 1721 would authorize the appropriation of $75 million in
2005, $95 million in 2006, and $145 million in each year over
the 2007-2010 period for the Secretary to acquire undivided
interests in Indian trust and restricted lands from willing
sellers at fair market value and to collect and revenue
generated from the leasing of natural resources on that
interest. CBO estimates that appropriating the specified
amounts would result in outlays of $23 million in 2005 and over
$440 million over the five-year period for purchases of such
land.
The act also would authorize the Secretary of the Interior
to provide grants to Indian tribes to develop tribal probate
codes and provide estate-planning services to tribal members.
Based on information from the Department of the Interior (DOI),
CBO estimates that implementing this provision would cost $2
million in each year over the 2005-2009 period for the
Secretary to provide such grants.
In addition, S. 1721 would establish a process whereby an
owner in an undivided parcel of land or the tribe may apply for
the partition (when a parcel of land with multiple owners is
split into discrete pieces) by sale of certain parcels of trust
or restricted land. S. 1721 would authorize DOI to provide
grants and low-interest loans to individuals who successfully
bid on Indian land auctioned by the Secretary on behalf of an
owner who wishes to partition and sell their interest in such
land. Based on information from the department, CBO estimates
that providing such grants and loans would cost the federal
government about $1 million over the five-year period, subject
to the availability of appropriated funds.
Based on information from BIA, CBO expects that
implementing S. 1721 could result in some administrative cost
savings to that agency because there would be fewer individual
owners of interests in trust and restricted lands. Any such
savings would depend on amounts appropriated in the future, but
CBO estimates that savings would not be significant over the
2005-2009 period.
Direct spending
Under current law, DOI may spend--subject to
appropriation--any receipts from natural resources leases on
trust or restricted land that has been purchased by the
Secretary or any proceeds from the sale of such land. Subject
to appropriation, the Secretary is authorized to spend such
funds to acquire additional interests in Indian land, as long
as the additional land is located on the same reservation that
generated those leasing receipts or land-sale proceeds.
S. 1721 would authorize the Secretary to spend such
receipts, or land-sale proceeds without further appropriation.
Since the start of the program in 1999, the department has
collected nearly $200,000 from such transactions. CBO estimates
that enacting this provision would increase direct spending by
about $200,000 in 2005 and a negligible amount in each
subsequent year over 2006-2014 period.
Estimated impact on state, local, and tribal governments:
S. 1721 contains no intergovernmental mandates as defined in
UMRA and would impose no significant costs on state, local, or
tribal governments.
Estimated impact on the private sector: S. 1721 contains
two private-sector mandates as defined in UMRA. The act would
impose a private-sector mandate on individuals who would
otherwise inherit interests in Indian trust or restricted lands
under current law. The act also would allow the Secretary of
the Interior to partition parcels of Indian land for sale under
certain conditions. In the event that land is partitioned for
sale without the consent of all the interest owners, S. 1721
would impose a private-sector mandate on those not consenting
to the partition. CBO estimates that the direct cost of
mandates in the act would fall below the annual threshold
established by UMRA for private-sector mandates ($120 million
in 2004, adjusted annually for inflation). The act also may
benefit interest owners in Indian trust and restricted lands
since it would remove certain restrictions on the use of such
lands.
Intestate disposition of interests in trust and restricted lands
S. 1721 would amend federal probate laws that govern how an
individual's interest in certain parcels of Indian land is
transferred upon death. The act would impose private-sector
mandates on certain individuals who would inherit interest in
trust or restricted lands under current law. Indian trust or
restricted lands are those lands held by the United States in
trust for an Indian tribe or held by an individual Indian or
tribe subject to restrictions against transferring such
property.
Currently, the probation of Indian trust and restricted
lands follows the laws for intestate succession of the state
where the land is located in cases where there is no tribal
probate code. In such cases when there are no heirs in the
immediate family, distant relatives would be eligible to
inherit land interests under current law. Under S. 1721, such
distant relatives would not be eligible heirs in certain cases.
The loss of inheritance could impose costs on persons who would
otherwise receive an interest in such property. The changes in
probate code would apply to very small interests in few cases.
CBO expects that the cost of the mandate would be small.
Partition of highly fractionated Indian lands
The act also would allow the Secretary of the Interior to
partition certain parcels of highly fractioned Indian lands for
sale at the request of the Indian tribe with jurisdiction over
the land or any owner of an interest in the parcel. To
partition the land, among other conditions, the Secretary must
obtain the written consent of the Indian tribe with
jurisdiction, any owner who has kept residence or operated a
business (including a farm or ranch) on the land for the three
years preceding the date of the request for partition, and the
owners of at least 50 percent of the undivided interests in the
parcel if at least one owner's undivided interest has a value
in excess of $1,500. The act would impose a mandate on those
interest owners not consenting to the partition. The cost that
the mandate would impose on nonconsenting interest holders
would be small. The interests involved are small, and all
owners of interests in the partitioned land would receive
compensation equal to at least the fair market value of their
interest in land.
Previous CBO estimate: On May 13, 2004, CBO transmitted a
cost estimate for S. 1721 as ordered reported by the Senate
Committee on Indian Affairs on April 21, 2004. The two versions
of the legislation and the cost estimates are identical.
Estimate prepared by: Federal Costs: Lanette J. Walker;
Impact on State, Local, and Tribal Governments: Marjorie
Miller; Impact on the Private Sector: Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law, except those regarding inheritance of property
affected under this bill.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
INDIAN LAND CONSOLIDATION ACT
TITLE II
Sec. 201. This title may be cited as the ``Indian Land
Consolidation Act''.
Sec. 202. For the purpose of this title--
(1) * * *
[(2) ``Indian'' means any person who is a member of
any Indian tribe or is eligible to become a member of
any Indian tribe, or any person who has been found to
meet the definition of ``Indian'' under a provision of
Federal law if the Secretary determines that using such
law's definition of Indian is consistent with the
purposes of the Act;]
(2) ``Indian'' means--
(A) any person who is a member of any Indian
tribe, is eligible to become a member of any
Indian tribe, or is an owner (as of the date of
enactment of the American Indian Probate Reform
Act of 2004) of a trust or restricted interest
in land;
(B) any person meeting the definition of
Indian under the Indian Reorganization Act (25
U.S.C. 479) and the regulations promulgated
thereunder; and
(C) with respect to the inheritance and
ownership of trust or restricted land in the
State of California pursuant to section 207,
any person described in subparagraph (A) or (B)
or any person who owns a trust or restricted
interest in a parcel of such land in that
State.
* * * * * * *
[(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]
(4) ``trust or restricted lands'' means lands, title
to which is held by the United States in trust for an
Indian tribe or individual, or which is held by an
Indian tribe or individual subject to a restriction by
the United States against alienation; and ``trust or
restricted interest in land'' or ``trust or restricted
interest in a parcel of land'' means an interest in
land, title to which is held in trust by the United
States for an Indian tribe or individual, or which is
held by an Indian tribe or individual subject to a
restriction by the United States against alienation.
* * * * * * *
(6) ``parcel of highly fractionated Indian land''
means a parcel of land that the Secretary, pursuant to
authority under a provision of this Act, determines to
have, as evidenced by the Secretary's records at the
time of the determination--
(A) 50 or more but less than 100 co-owners of
undivided trust or restricted interests, and no
1 of such co-owners holds a total undivided
trust or restricted interest in the parcel that
is greater than 10 percent of the entire
undivided ownership of the parcel; or
(B) 100 or more co-owners of undivided trust
or restricted interests;
(7) ``land'' means any real property, and includes
within its meaning for purposes of this Act
improvements permanently affixed to real property;
(8) ``person'' or ``individual'' means a natural
person;
(9) ``eligible heirs'' means, for purposes of section
207 (25 U.S.C. 2206), any of a decedent's children,
grandchildren, great grandchildren, full siblings, half
siblings by blood, and parents who are--
(A) Indian; or
(B) lineal descendents within 2 degrees of
consanguinity of an Indian; or
(C) owners of a trust or restricted interest
in a parcel of land for purposes of inheriting
by descent, renunciation, or consolidation
agreement under section 207 (25 U.S.C. 2206),
another trust or restricted interest in such
parcel from the decedent; and
(10) ``without regard to waste'' means, with respect
to a life estate interest in land, that the holder of
such estate is entitled to the receipt of all income,
including bonuses and royalties, from such land to the
exclusion of the remaindermen.
* * * * * * *
Sec. 205. (a) * * *
* * * * * * *
(d) Partition of Highly Fractionated Indian Lands.--
(1) Applicability.--This subsection shall be
applicable only to parcels of land (including surface
and subsurface interests, except with respect to a
subsurface interest that has been severed from the
surface interest, in which case this subsection shall
apply only to the surface interest) which the Secretary
has determined, pursuant to paragraph (2)(B), to be
parcels of highly fractionated Indian land.
(2) Requirements.--Each partition action under this
subsection shall be conducted by the Secretary in
accordance with the following requirements:
(A) Application.--Upon receipt of any payment
or bond required under subparagraph (B), the
Secretary shall commence a process for
partitioning a parcel of land by sale in
accordance with the provisions of this
subsection upon receipt of an application by--
(i) the Indian tribe with
jurisdiction over the subject land that
owns an undivided interest in the
parcel of land; or
(ii) any person owning an undivided
interest in the parcel of land who is
eligible to bid at the sale of the
parcel pursuant to subclause (II),
(III), or (IV) of subparagraph (I)(i);
provided that no such application shall be
valid or considered if it is received by the
Secretary prior to the date that is 1 year
after the date on which notice is published
pursuant to section 8(a)(4) of the American
Indian Probate Reform Act of 2004.
(B) Costs of serving notice and
publication.--The costs of serving and
publishing notice under subparagraph (F) shall
be borne by the applicant. Upon receiving
written notice from the Secretary, the
applicant must pay to the Secretary an amount
determined by the Secretary to be the estimated
costs of such service of notice and
publication, or furnish a sufficient bond for
such estimated costs within the time stated in
the notice, failing which, unless an extension
is granted by the Secretary, the Secretary
shall not be required to commence the partition
process under subparagraph (A) and may deny the
application. The Secretary shall have the
discretion and authority in any case to waive
either the payment or the bond (or any portion
of such payment or bond) otherwise required by
this subparagraph, upon making a determination
that such waiver will further the policies of
this Act.
(C) Determination.--Upon receipt of an
application pursuant to subparagraph (A), the
Secretary shall determine whether the subject
parcel meets the requirements set forth in
section 202(6) (25 U.S.C. 2201(6)) to be
classified as a parcel of highly fractionated
Indian land.
(D) Consent requirements.--
(i) In general.--A parcel of land may
be partitioned under this subsection
only if the applicant obtains the
written consent of--
(I) the Indian tribe with
jurisdiction over the subject
land if such Indian tribe owns
an undivided interest in the
parcel;
(II) any owner who, for the
3-year period immediately
preceding the date on which the
Secretary receives the
application, has
(aa) continuously
maintained a bona fide
residence on the
parcel; or
(bb) operated a bona
fide farm, ranch, or
other business on the
parcel; and
(III) the owners (including
parents of minor owners and
legal guardians of incompetent
owners) of at least 50 percent
of the undivided interests in
the parcel, but only in cases
where the Secretary determines
that, based on the final
appraisal prepared pursuant to
subparagraph (F), any 1 owner's
total undivided interest in the
parcel (not including the
interest of an Indian tribe or
that of the owner requesting
the partition) has a value in
excess of $1,500.
Any consent required by this clause
must be in writing and acknowledged
before a notary public (or other
official authorized to make
acknowledgments), and shall be approved
by Secretary unless the Secretary has
reason to believe that the consent was
obtained as a result of fraud or undue
influence.
(ii) Consent by the secretary on
behalf of certain individuals.--For the
purposes of clause (i)(III), the
Secretary may consent on behalf of--
(I) undetermined heirs of
trust or restricted interests
and owners of such interests
who are minors and legal
incompetents having no parents
or legal guardian; and
(II) missing owners or owners
of trust or restricted
interests whose whereabouts are
unknown, but only after a
search for such owners has been
completed in accordance with
the provisions of this
subsection.
(E) Appraisal.--After the Secretary has
determined that the subject parcel is a parcel
of highly fractionated Indian land pursuant to
subparagraph (C), the Secretary shall cause to
be made, in accordance with the provisions of
this Act for establishing fair market value, an
appraisal of the fair market value of the
subject parcel.
(F) Notice to owners on completion of
appraisal.--Upon completion of the appraisal,
the Secretary shall give notice of the
requested partition and appraisal to all owners
of undivided interests in the parcel, in
accordance with principles of due process. Such
notice shall include the following
requirements:
(i) Written notice.--The Secretary
shall attempt to give each owner
written notice of the partition action
stating the following:
(I) That a proceeding to
partition the parcel of land by
sale has been commenced.
(II) The legal description of
the subject parcel.
(III) The owner's ownership
interest in the subject parcel
as evidenced by the Secretary's
records as of the date that
owners are determined in
accordance with clause (ii).
(IV) The results of the
appraisal.
(V) The owner's right to
receive a copy of the appraisal
upon written request.
(VI) The owner's right to
comment on or object to the
proposed partition and the
appraisal.
(VII) That the owner must
timely comment on or object in
writing to the proposed
partition or the appraisal, in
order to receive notice of
approval of the appraisal and
right to appeal.
(VIII) The date by which the
owner's written comments or
objections must be received,
which shall not be less than 90
days after the date that the
notice is mailed under this
clause or last published under
clause (ii)(II).
(IX) The address for
requesting copies of the
appraisal and for submitting
written comments or objections.
(X) The name and telephone
number of the official to be
contacted for purposes of
obtaining information regarding
the proceeding, including the
time and date of the auction of
the land or the date for
submitting sealed bids.
(XI) Any other information
the Secretary deems to be
appropriate.
(ii) Manner of service.--
(I) Service by certified
mail.--The Secretary shall use
due diligence to provide all
owners of interests in the
subject parcel, as evidenced by
the Secretary's records at the
time of the determination under
subparagraph (C), with actual
notice of the partition
proceedings by mailing a copy
of the written notice described
in clause (i) by certified
mail, restricted delivery, to
each such owner at the owner's
last known address. For
purposes of this subsection,
owners shall be determined from
the Secretary's land title
records as of the date of the
determination under
subparagraph (C) or a date that
is not more than 90 days prior
to the date of mailing under
this clause, whichever is
later. In the event the written
notice to an owner is returned
undelivered, the Secretary
shall attempt to obtain a
current address for such owner
by conducting a reasonable
search (including a reasonable
search of records maintained by
local, state, Federal and
tribal governments and
agencies) and by inquiring with
the Indian tribe with
jurisdiction over the subject
parcel, and, if different from
that tribe, the Indian tribe of
which the owner is a member,
and, if successful in locating
any such owner, send written
notice by certified mail in
accordance with this subclause.
(II) Notice by publication.--
The Secretary shall give notice
by publication of the partition
proceedings to all owners that
the Secretary was unable to
serve pursuant to subclause
(I), and to unknown heirs and
assigns by--
(aa) publishing the
notice described in
clause (i) at least 2
times in a newspaper of
general circulation in
the county or counties
where the subject
parcel of land is
located or, if there is
an Indian tribe with
jurisdiction over the
parcel of land and that
tribe publishes a
tribal newspaper or
newsletter at least
once every month, 1
time in such newspaper
of general circulation
and 1 time in such
tribal newspaper or
newsletter;
(bb) posting such
notice in a conspicuous
place in the tribal
headquarters or
administration building
(or such other tribal
building determined by
the Secretary to be
most appropriate for
giving public notice)
of the Indian tribe
with jurisdiction over
the parcel of land, if
any; and
(cc) in addition to
the foregoing, in the
Secretary's discretion,
publishing notice in
any other place or
means that the
Secretary determines to
be appropriate.
(G) Review of comments on appraisal.--
(i) In general.--After reviewing and
considering comments or information
timely submitted by any owner of an
interest in the parcel in response to
the notice required under subparagraph
(F), the Secretary may, consistent with
the provisions of this Act for
establishing fair market value--
(I) order a new appraisal; or
(II) approve the appraisal;
provided that if the Secretary orders a new
appraisal under subclause (I), notice of the
new appraisal shall be given as specified in
clause (ii).
(ii) Notice.--Notice shall be given--
(I) in accordance with
subparagraph (H), where the new
appraisal results in a higher
valuation of the land; or
(II) in accordance with
subparagraph (F)(ii), where the
new appraisal results in a
lower valuation of the land.
(H) Notice to owners of approval of appraisal
and right to appeal.--Upon making the
determination under subparagraph (G), the
Secretary shall provide to the Indian tribe
with jurisdiction over the subject land and to
all persons who submitted written comments on
or objections to the proposed partition or
appraisal, a written notice to be served on
such tribe and persons by certified mail. Such
notice shall state--
(i) the results of the appraisal;
(ii) that the owner has the right to
review a copy of the appraisal upon
request;
(iii) that the land will be sold for
not less than the appraised value,
subject to the consent requirements
under paragraph (2)(D);
(iv) the time of the sale or for
submitting bids under subparagraph (I);
(v) that the owner has the right,
under the Secretary's regulations
governing administrative appeals, to
pursue an administrative appeal from--
(I) the determination that
the land may be partitioned by
sale under the provisions of
this section; and
(II) the Secretary's order
approving the appraisal;
(vi) the date by which an
administrative appeal must be taken, a
citation to the provisions of the
Secretary's regulations that will
govern the owner's appeal, and any
other information required by such
regulations to be given to parties
affected by adverse decisions of the
Secretary;
(vii) in cases where the Secretary
determines that any person's undivided
trust or restricted interest in the
parcel exceeds $1,500 pursuant to
paragraph (2)(D)(iii), that the
Secretary has authority to consent to
the partition on behalf of undetermined
heirs of trust or restricted interests
in the parcel and owners of such
interests whose whereabouts are
unknown; and
(viii) any other information the
Secretary deems to be appropriate.
(I) Sale to eligible purchaser.--
(i) In general.--Subject to clauses
(ii) and (iii) and the consent
requirements of paragraph (2)(D), the
Secretary shall, after providing notice
to owners under subparagraph (H),
including the time and place of sale or
for receiving sealed bids, at public
auction or by sealed bid (whichever of
such methods of sale the Secretary
determines to be more appropriate under
the circumstances) sell the parcel of
land by competitive bid for not less
than the final appraised fair market
value to the highest bidder from among
the following eligible bidders:
(I) The Indian tribe, if any,
with jurisdiction over the
trust or restricted interests
in the parcel being sold.
(II) Any person who is a
member, or is eligible to be a
member, of the Indian tribe
described in subclause (I).
(III) Any person who is a
member, or is eligible to be a
member, of an Indian tribe but
not of the tribe described in
subclause (I), but only if such
person already owns an
undivided interest in the
parcel at the time of sale.
(IV) Any lineal descendent of
the original allottee of the
parcel who is a member or is
eligible to be a member of an
Indian tribe or, with respect
to a parcel located in the
State of California that is not
within an Indian tribe's
reservation or not otherwise
subject to the jurisdiction of
an Indian tribe, who is a
member, or eligible to be a
member, of an Indian tribe or
owns a trust or restricted
interest in the parcel.
(ii) Right to match highest bid.--If
the highest bidder is a person who is
only eligible to bid under clause
(i)(III), the Indian tribe that has
jurisdiction over the parcel, if any,
shall have the right to match the
highest bid and acquire the parcel, but
only if--
(I) prior to the date of the
sale, the governing body of
such tribe has adopted a tribal
law or resolution reserving its
right to match the bids of such
nonmember bidders in partition
sales under this subsection and
delivered a copy of such law or
resolution to the Secretary;
and
(II) the parcel is not
acquired under clause (iii).
(iii) Right to purchase.--Any person
who is a member, or eligible to be a
member, of the Indian tribe with
jurisdiction over the trust or
restricted interests in the parcel
being sold and is, as of the time of
sale under this subparagraph, the owner
of the largest undivided interest in
the parcel shall have a right to
purchase the parcel by tendering to the
Secretary an amount equal to the
highest sufficient bid submitted at the
sale, less that amount of the bid
attributable to such owner's share, but
only if--
(I) the owner submitted a
sufficient bid at the sale;
(II) the owner's total
undivided interest in the
parcel immediately prior to the
sale was--
(aa) greater than the
undivided interest held
by any other co-owners,
except where there are
2 or more co-owners
whose interests are of
equal size but larger
than the interests of
all other co-owners and
such owners of the
largest interests have
agreed in writing that
1 of them may exercise
the right of purchase
under this clause; and
(bb) equal to or
greater than 20 percent
of the entire undivided
ownership of the
parcel;
(III) within 3 days following
the date of the auction or for
receiving sealed bids, and in
accordance with the regulations
adopted to implement this
section, the owner delivers to
the Secretary a written notice
of intent to exercise the
owner's rights under this
clause; and
(IV) such owner tenders the
amount of the purchase price
required under this clause--
(aa) not less than 30
days after the date of
the auction or time for
receiving sealed bids;
and
(bb) in accordance
with any requirements
of the regulations
promulgated to
implement this section.
(iv) Interest acquired.--A purchaser
of a parcel of land under this
subparagraph shall acquire title to the
parcel in trust or restricted status,
free and clear of any and all claims of
title or ownership of all persons or
entities (not including the United
States) owning or claiming to own an
interest in such parcel prior to the
time of sale.
(J) Proceeds of sale.--
(i) Subject to clauses (ii) and
(iii), the Secretary shall distribute
the proceeds of sale of a parcel of
land under the provisions of this
section to the owners of interests in
such parcel in proportion to their
respective ownership interests.
(ii) Proceeds attributable to the
sale of trust or restricted interests
shall be maintained in accounts as
trust personalty.
(iii) Proceeds attributable to the
sale of interests of owners whose
whereabouts are unknown, of
undetermined heirs, and of other
persons whose ownership interests have
not been recorded shall be held by the
Secretary until such owners, heirs, or
other persons have been determined, at
which time such proceeds shall be
distributed in accordance with clauses
(i) and (ii).
(K) Lack of bids or consent.--
(i) Lack of bids.--If no bidder
described in subparagraph (I) presents
a bid that equals or exceeds the final
appraised value, the Secretary may
either--
(I) purchase the parcel of
land for its appraised fair
market value on behalf of the
Indian tribe with jurisdiction
over the land, subject to the
lien and procedures provided
under section 214(b) (25 U.S.C.
2213(b)); or
(II) terminate the partition
process.
(ii) Lack of consent.--If an
applicant fails to obtain any
applicable consent required under the
provisions of subparagraph (D) by the
date established by the Secretary prior
to the proposed sale, the Secretary may
either extend the time for obtaining
any such consent or deny the request
for partition.
(3) Enforcement.--
(A) In general.--If a partition is approved
under this subsection and an owner of an
interest in the parcel of land refuses to
surrender possession in accordance with the
partition decision, or refuses to execute any
conveyance necessary to implement the
partition, then any affected owner or the
United States may--
(i) commence a civil action in the
United States district court for the
district in which the parcel of land is
located; and
(ii) request that the court issue an
order for ejectment or any other
appropriate remedy necessary for the
partition of the land by sale.
(B) Federal role.--With respect to any civil
action brought under subparagraph (A)--
(i) the United States--
(I) shall receive notice of
the civil action; and
(II) may be a party to the
civil action; and
(ii) the civil action shall not be
dismissed, and no relief requested
shall be denied, on the ground that the
civil action is against the United
States or that the United States is a
necessary and indispensable party.
(4) Grants and loans.--The Secretary may provide
grants and low interest loans to successful bidders at
sales authorized by this subsection, provided that--
(A) the total amount of such assistance in
any such sale shall not exceed 20 percent of
the appraised value of the parcel of land sold;
and
(B) the grant or loan funds provided shall
only be applied toward the purchase price of
the parcel of land sold.
(5) Regulations.--The Secretary is authorized to
adopt such regulations as may be necessary to implement
the provisions of this subsection. Such regulations
shall include provisions for giving notice of sales to
prospective purchasers eligible to submit bids at sales
conducted under paragraph (2)(I).
SEC. 206. TRIBAL PROBATE CODES; ACQUISITIONS OF FRACTIONAL INTERESTS BY
TRIBES.
(a) Tribal Probate Codes.--
(1) * * *
* * * * * * *
[(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.]
(3) Tribal probate codes.--Except as provided in any
applicable Federal law, the Secretary shall not approve
a tribal probate code, or an amendment to such a code,
that prohibits the devise of an interest in trust or
restricted land to--
(A) an Indian lineal descendant of the
original allottee; or
(B) an Indian who is not a member of the
Indian tribe with jurisdiction over such an
interest;
unless the code provides for--
(i) the renouncing of interests to
eligible devisees in accordance with
the code;
(ii) the opportunity for a devisee
who is the spouse or lineal descendant
of a testator to reserve a life estate
without regard to waste; and
(iii) payment of fair market value in
the manner prescribed under subsection
(c)(2).
* * * * * * *
(c) Authority Available to Indian Tribes.--
[(1) In general.--]
(1) Authority.--
(A) In general.--If the owner of an interest
in trust or restricted land devises an interest
in such land to a non-Indian under section
207(a)(6)(A), the Indian tribe that exercises
jurisdiction over the parcel of land involved
may acquire such interest by paying to the
Secretary the fair market value of such
interest, as determined by the Secretary on the
date of the decedent's death. [The Secretary
shall transfer such payment to the devisee.]
(B) Transfer.--The Secretary shall transfer
payments received under subparagraph (A) to any
person or persons who would have received an
interest in land if the interest had not been
acquired by the Indian tribe in accordance with
this paragraph.
(2) Limitation.--
[(A) In general.--Paragraph (1) shall not
apply]
(A) Inapplicability to certain interests.--
(i) In general.--Paragraph (1) shall
not apply to an interest in trust or
restricted land [if, while] if--
(I) while the decedent's
estate is pending before the
Secretary, the non-Indian
devisee renounces the interest
in favor of an Indian
person[.]; or
(II)(aa) the interest is part
of a family farm that is
devised to a member of the
family of the decedent; and
(bb) the devisee agrees that
the Indian tribe with
jurisdiction over the land will
have the opportunity to acquire
the interest for fair market
value if the interest is
offered for sale to a person or
entity that is not a member of
the family of the owner of the
land.
(ii) Recording of interest.--On
request by the Indian tribe described
in clause (i)(II)(bb), a restriction
relating to the acquisition by the
Indian tribe of an interest in a family
farm involved shall be recorded as part
of the deed relating to the interest
involved.
(iii) Mortgage and foreclosure.--
Nothing in clause (i)(II) limits--
(I) the ability of an owner
of land to which that clause
applies to mortgage the land;
or
(II) the right of the entity
holding such a mortgage to
foreclose or otherwise enforce
such a mortgage agreement in
accordance with applicable law.
(iv) Definition of ``member of the
family''.--In this paragraph, the term
``member of the family'', with respect
to a decedent or landowner, means--
(I) a lineal descendant of a
decedent or landowner;
(II) a lineal descendant of
the grandparent of a decedent
or landowner;
(III) the spouse of a
descendant or landowner
described in subclause (I) or
(II); and
(IV) the spouse of a decedent
or landowner.
* * * * * * *
SEC. 207. DESCENT AND DISTRIBUTION.
[(a) Testamentary Disposition.--
[(1) In general.--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) Life estate.--Any devise of an interest in trust
or restricted land to a non-Indian shall create a life
estate with respect to such interest.
[(3) Remainder.--
[(A) In general.--Except where the remainder
from the life estate referred to in paragraph
(2) is devised to an Indian, such remainder
shall descend to the decedent's Indian spouse
or Indian heirs of the first or second degree
pursuant to the applicable law of intestate
succession.
[(B) Descent of interests.--If a decedent
described in subparagraph (A) has no Indian
heirs of the first or second degree, the
remainder interest described in such
subparagraph shall descend to any of the
decedent's collateral heirs of the first or
second degree, pursuant to the applicable laws
of intestate succession, if on the date of the
decedent's death, such heirs were a co-owner of
an interest in the parcel of trust or
restricted land involved.
[(C) Definition.--For purposes of this
section, the term ``collateral heirs of the
first or second degree'' means the brothers,
sisters, aunts, uncles, nieces, nephews, and
first cousins, of a decedent.
[(4) Descent to tribe.--If the remainder interest
described in paragraph (3)(A) does not descend to an
Indian heir or heirs it shall descend to the Indian
tribe that exercises jurisdiction over the parcel of
trust or restricted lands involved, subject to
paragraph (5).
[(5) Acquisition of interest by indian co-owners.--An
Indian co-owner of a parcel of trust or restricted land
may prevent the descent of an interest in Indian land
to an Indian tribe under paragraph (4) 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 an interest, the highest bidder
shall obtain the interest. If payment is not received
before the close of the probate of the decedent's
estate, the interest shall descend to the tribe that
exercises jurisdiction over the parcel.
[(6) Special rule.--
[(A) In general.--Notwithstanding paragraph
(2), an owner of trust or restricted land who
does not have an Indian spouse, Indian lineal
descendant, an Indian heir of the first or
second degree, or an Indian collateral heir of
the first or second degree, may devise his or
her interests in such land to any of the
decedent's heirs of the first or second degree
or collateral heirs of the first or second
degree.
[(B) Acquisition of interest by tribe.--An
Indian tribe that exercises jurisdiction over
an interest in trust or restricted land
described in subparagraph (A) may acquire any
interest devised to a non-Indian as provided
for in section 206(c).
[(b) Intestate Succession.--
[(1) In general.--An interest in trust or restricted
land shall pass by intestate succession only to a
decedent's spouse or heirs of the first or second
degree, pursuant to the applicable law of intestate
succession.
[(2) Life estate.--Notwithstanding paragraph (1),
with respect to land described in such paragraph, a
non-Indian spouse or non-Indian heirs of the first or
second degree shall only receive a life estate in such
land.
[(3) Descent of interests.--If a decedent described
in paragraph (1) has no Indian heirs of the first or
second degree, the remainder interest from the life
estate referred to in paragraph (2) shall descend to
any of the decedent's collateral Indian heirs of the
first or second degree, pursuant to the applicable laws
of intestate succession, if on the date of the
decedent's death, such heirs were a co-owner of an
interest in the parcel of trust or restricted land
involved.
[(4) Descent to tribe.--If the remainder interest
described in paragraph (3) does not descend to an
Indian heir or heirs it shall descend to the Indian
tribe that exercises jurisdiction over the parcel of
trust or restricted lands involved, subject to
paragraph (5).
[(5) Acquisition of interest by indian co-owners.--An
Indian co-owner of a parcel of trust or restricted land
may prevent the descent of an interest in such land for
which there is no heir of the first or second degree by
paying into the decedent's estate the fair market value
of the interest in such land. If more than 1 Indian co-
owner makes an offer to pay for such an interest, the
highest bidder shall obtain the interest. If no such
offer is made, the interest shall descend to the Indian
tribe that exercises jurisdiction over the parcel of
land involved.]
(a) Nontestamentary Disposition.--
(1) Rules of descent.--Subject to any applicable
Federal law relating to the devise or descent of trust
or restricted property, any trust or restricted
interest in land or interest in trust personalty that
is not disposed of by a valid will--
(A) shall descend according to an applicable
tribal probate code approved in accordance with
section 206; or
(B) in the case of a trust or restricted
interest in land or interest in trust
personalty to which a tribal probate code does
not apply, shall descend in accordance with--
(i) paragraphs (2) through (5); and
(ii) other applicable Federal law.
(2) Rules governing descent of estate.--
(A) Surviving spouse.--If there is a
surviving spouse of the decedent, such spouse
shall receive trust and restricted land and
trust personalty in the estate as follows:
(i) If the decedent is survived by 1
or more eligible heirs described in
subparagraph (B) (i), (ii), (iii), or
(iv), the surviving spouse shall
receive \1/3\ of the trust personalty
of the decedent and a life estate
without regard to waste in the
interests in trust or restricted lands
of the decedent.
(ii) If there are no eligible heirs
described in subparagraph (B) (i),
(ii), (iii), or (iv), the surviving
spouse shall receive all of the trust
personalty of the decedent and a life
estate without regard to waste in the
trust or restricted lands of the
decedent.
(iii) The remainder shall pass as set
forth in subparagraph (B).
(iv) Trust personalty passing to a
surviving spouse under the provisions
of this subparagraph shall be
maintained by the Secretary in an
account as trust personalty, but only
if such spouse is Indian.
(B) Individual and tribal heirs.--Where there
is no surviving spouse of the decedent, or
there is a remainder interest pursuant to
subparagraph (A), the trust or restricted
estate or such remainder shall, subject to
subparagraphs (A) and (D), pass as follows:
(i) To those of the decedent's
children who are eligible heirs (or if
1 or more of such children do not
survive the decedent, the children of
any such deceased child who are
eligible heirs, by right of
representation, but only if such
children of the deceased child survive
the decedent) in equal shares.
(ii) If the property does not pass
under clause (i), to those of the
decedent's surviving great-
grandchildren who are eligible heirs,
in equal shares.
(iii) If the property does not pass
under clause (i) or (ii), to the
decedent's surviving parent who is an
eligible heir, and if both parents
survive the decedent and are both
eligible heirs, to both parents in
equal shares.
(iv) If the property does not pass
under clause (i), (ii), or (iii), to
those of the decedent's surviving
siblings who are eligible heirs, in
equal shares.
(v) If the property does not pass
under clause (i), (ii), (iii), or (iv),
to the Indian tribe with jurisdiction
over the interests in trust or
restricted lands;
except that notwithstanding clause (v), an
Indian co-owner (including the Indian tribe
referred to in clause (v)) of a parcel of trust
or restricted land may acquire an interest that
would otherwise descend under that clause by
paying into the estate of the decedent, before
the close of the probate of the estate, the
fair market value of the interest in the land;
if more than 1 Indian co-owner offers to pay
for such interest, the highest bidder shall
acquire the interest.
(C) No indian tribe.--
(i) In general.--If there is no
Indian tribe with jurisdiction over the
interests in trust or restricted lands
that would otherwise descend under
subparagraph (B)(v), then such
interests shall be divided equally
among co-owners of trust or restricted
interests in the parcel; if there are
no such co-owners, then to the United
States, provided that any such
interests in land passing to the United
States under this subparagraph shall be
sold by the Secretary and the proceeds
from such sale deposited into the land
acquisition fund established under
section 216 (25 U.S.C. 2215) and used
for the purposes described in
subsection (b) of that section.
(ii) Contiguous parcel.--If the
interests passing to the United States
under this subparagraph are in a parcel
of land that is contiguous to another
parcel of trust or restricted land, the
Secretary shall give the owner or
owners of the trust or restricted
interest in the contiguous parcel the
first opportunity to purchase the
interest at not less than fair market
value determined in accordance with
this Act. If more than 1 such owner in
the contiguous parcel request to
purchase the parcel, the Secretary
shall sell the parcel by public auction
or sealed bid (as determined by the
Secretary) at not less than fair market
value to the owner of a trust or
restricted interest in the contiguous
parcel submitting the highest bid.
(D) Intestate descent of small fractional
interests in land.--
(i) General rule.--Notwithstanding
subparagraphs (A) and (B), and subject
to any applicable Federal law, any
trust or restricted interest in land in
the decedent's estate that is not
disposed of by a valid will and
represents less than 5 percent of the
entire undivided ownership of the
parcel of land of which such interest
is a part, as evidenced by the
decedent's estate inventory at the time
of the heirship determination, shall
descend in accordance with clauses (ii)
through (iv).
(ii) Surviving spouse.--If there is a
surviving spouse, and such spouse was
residing on a parcel of land described
in clause (i) at the time of the
decedent's death, the spouse shall
receive a life estate without regard to
waste in the decedent's trust or
restricted interest in only such
parcel, and the remainder interest in
that parcel shall pass in accordance
with clause (iii).
(iii) Single heir rule.--Where there
is no life estate created under clause
(ii) or there is a remainder interest
under that clause, the trust or
restricted interest or remainder
interest that is subject to this
subparagraph shall descend, in trust or
restricted status, to--
(I) the decedent's surviving
child, but only if such child
is an eligible heir; and if 2
or more surviving children are
eligible heirs, then to the
oldest of such children;
(II) if the interest does not
pass under subclause (I), the
decedent's surviving
grandchild, but only if such
grandchild is an eligible heir;
and if 2 or more surviving
grandchildren are eligible
heirs, then to the oldest of
such grandchildren;
(III) if the interest does
not pass under subclause (I) or
(II), the decedent's surviving
great grandchild, but only if
such great grandchild is an
eligible heir; and if 2 or more
surviving great grandchildren
are eligible heirs, then to the
oldest of such great
grandchildren;
(IV) if the interest does not
pass under subclause (I), (II),
or (III), the Indian tribe with
jurisdiction over the interest;
or
(V) if the interest does not
pass under subclause (I), (II),
or (III), and there is no such
Indian tribe to inherit the
property under subclause (IV),
the interest shall be divided
equally among co-owners of
trust or restricted interests
in the parcel; and if there are
no such co-owners, then to the
United States, to be sold, and
the proceeds from sale used, in
the same manner provided in
subparagraph (C).
The determination of which person is the oldest
eligible heir for inheritance purposes under
this clause shall be made by the Secretary in
the decedent's probate proceeding and shall be
consistent with the provisions of this Act.
(iv) Exceptions.--Notwithstanding
clause (iii)--
(I)(aa) the heir of an
interest under clause (iii),
unless the heir is a minor or
incompetent person, may agree
in writing entered into the
record of the decedent's
probate proceeding to renounce
such interest, in trust or
restricted status, in favor
of--
(AA) any other
eligible heir or Indian
person related to the
heir by blood, but in
any case never in favor
of more than 1 such
heir or person;
(BB) any co-owner of
another trust or
restricted interest in
such parcel of land; or
(CC) the Indian tribe
with jurisdiction over
the interest, if any;
and
(bb) the Secretary shall give
effect to such agreement in the
distribution of the interest in
the probate proceeding; and
(II) the governing body of
the Indian tribe with
jurisdiction over an interest
in trust or restricted land
that is subject to the
provisions of this subparagraph
may adopt a rule of intestate
descent applicable to such
interest that differs from the
order of decedent set forth in
clause (iii). The Secretary
shall apply such rule to the
interest in distributing the
decedent's estate, but only
if--
(aa) a copy of the
tribal rule is
delivered to the
official designated by
the Secretary to
receive copies of
tribal rules for the
purposes of this
clause;
(bb) the tribal rule
provides for the
intestate inheritance
of such interest by no
more than 1 heir, so
that the interest does
not further
fractionate;
(cc) the tribal rule
does not apply to any
interest disposed of by
a valid will;
(dd) the decedent
died on or after the
date described in
subsection (b) of
section 8 of the
American Indian Probate
Act of 2004, or on or
after the date on which
a copy of the tribal
rule was delivered to
the Secretary pursuant
to item (aa), whichever
is later; and
(ee) the Secretary
does not make a
determination within 90
days after a copy of
the tribal rule is
delivered pursuant to
item (aa) that the rule
would be unreasonably
difficult to administer
or does not conform
with the requirements
in item (bb) or (cc).
(v) Rule of construction.--This
subparagraph shall not be construed to
limit a person's right to devise any
trust or restricted interest by way of
a valid will in accordance with
subsection (b).
(3) Right of representation.--If, under this
subsection, all or any part of the estate of a decedent
is to pass to children of a deceased child by right of
representation, that part is to be divided into as many
equal shares as there are living children of the
decedent and pre-deceased children who left issue who
survive the decedent. Each living child of the
decedent, if any, shall receive 1 share, and the share
of each pre-deceased child shall be divided equally
among the pre-deceased child's children.
(4) Special rule relating to survival.--In the case
of intestate succession under this subsection, if an
individual fails to survive the decedent by at least
120 hours, as established by clear and convincing
evidence--
(A) the individual shall be deemed to have
predeceased the decedent for the purpose of
intestate succession; and
(B) the heirs of the decedent shall be
determined in accordance with this section.
(5) Status of inherited interests.--Except as
provided in paragraphs (2) (A) and (D) regarding the
life estate of a surviving spouse, a trust or
restricted interest in land or trust personalty that
descends under the provisions of this subsection shall
vest in the heir in the same trust or restricted status
as such interest was held immediately prior to the
decedent's death.
(b) Testamentary Disposition.--
(1) General devise of an interest in trust or
restricted land.--
(A) In general.--Subject to any applicable
Federal law relating to the devise or descent
of trust or restricted land, or a tribal
probate code approved by the Secretary in
accordance with section 206, the owner of a
trust or restricted interest in land may devise
such interest to--
(i) any lineal descendant of the
testator;
(ii) any person who owns a
preexisting undivided trust or
restricted interest in the same parcel
of land;
(iii) the Indian tribe with
jurisdiction over the interest in land;
or
(iv) any Indian;
in trust or restricted status.
(B) Rules of interpretation.--Any devise of a
trust or restricted interest in land pursuant
to subparagraph (A) to an Indian or the Indian
tribe with jurisdiction over the interest shall
be deemed to be a devise of the interest in
trust or restricted status. Any devise of a
trust or restricted interest in land to a
person who is only eligible to be a devisee
under clause (i) or (ii) of subparagraph (A)
shall be presumed to be a devise of the
interest in trust or restricted status unless
language in such devise clearly evidences an
intent on the part of the testator that the
interest is to pass as a life estate or fee
interest in accordance with paragraph (2)(A).
(2) Devise of trust or restricted land as a life
estate or in fee.--
(A) In general.--Except as provided under any
applicable Federal law, any trust or restricted
interest in land that is not devised in
accordance with paragraph (1)(A) may be devised
only--
(i) as a life estate to any person,
with the remainder being devised only
in accordance with subparagraph (B) or
paragraph (1); or
(ii) except as provided in
subparagraph (B), as a fee interest
without Federal restrictions against
alienation to any person who is not
eligible to be a devisee under clause
(iv) of paragraph (1)(A).
(B) Indian reorganization act lands.--Any
interest in trust or restricted land that is
subject to section 4 of the Act of June 18,
1934 (25 U.S.C. 464), may be devised only in
accordance with--
(i) that section;
(ii) subparagraph (A)(i); or
(iii) paragraph (1)(A);
provided that nothing in this section or in
section 4 of the Act of June 18, 1934 (25
U.S.C. 464), shall be construed to authorize
the devise of any interest in trust or
restricted land that is subject to section 4 of
that Act to any person as a fee interest under
subparagraph (A)(ii).
(3) General devise of an interest in trust
personalty.--
(A) Trust personality defined.--The term
``trust personalty'' as used in this section
includes all funds and securities of any kind
which are held in trust in an individual Indian
money account or otherwise supervised by the
Secretary.
(B) In general.--Subject to any applicable
Federal law relating to the devise or descent
of such trust personalty, or a tribal probate
code approved by the Secretary in accordance
with section 206, the owner of an interest in
trust personalty may devise such an interest to
any person or entity.
(C) Maintenance as trust personalty.--In the
case of a devise of an interest in trust
personalty to a person or Indian tribe eligible
to be a devisee under paragraph (1)(A), the
Secretary shall maintain and continue to manage
such interests as trust personalty.
(D) Direct disbursement and distribution.--In
the case of a devise of an interest in trust
personalty to a person or Indian tribe not
eligible to be a devisee under paragraph
(1)(A), the Secretary shall directly disburse
and distribute such personalty to the devisee.
(4) Invalid devises and wills.--
(A) Land.--Any trust or restricted interest
in land that is not devised in accordance with
paragraph (1) or (2) or that is not disposed of
by a valid will shall descend in accordance
with the applicable law of intestate succession
as provided for in subsection (a).
(B) Personalty.--Any trust personalty that is
not disposed of by a valid will shall descend
in accordance with the applicable law of
intestate succession as provided for in
subsection (a).
(c) Joint Tenancy; Right of Survivorship.--
[(1) Testate.--If a testator devises interests in the
same parcel of trust or restricted lands to more than 1
person, in the absence of express language in the
devise to the contrary, the devise shall be presumed to
create joint tenancy with the right of survivorship in
the land involved.
[(2) Intestate.--
[(A) In general.--Any interest in trust or
restricted land that--
[(i) passes by intestate succession
to more than 1 person, including a
remainder interest under subsection (a)
or (b) of section 207; and
[(ii) that constitutes 5 percent or
more of the undivided interest in a
parcel of trust or restricted land;
shall be held as tenancy in common.
[(B) Limited interest.--Any interest in trust
or restricted land that--
[(i) passes by intestate succession
to more than 1 person, including a
remainder interest under subsection (a)
or (b) of section 207; and
[(ii) that constitutes less than 5
percent of the undivided interest in a
parcel of trust or restricted land;
shall be held by such heirs with the right of
survivorship.
[(3) Effective date.--
[(A) In general.--This subsection (other than
subparagraph (B)) shall become effective on the
later of--
[(i) the date referred to in
subsection (g)(5); or
[(ii) the date that is six months
after the date on which the Secretary
makes the certification required under
subparagraph (B).
[(B) Certification.--Upon a determination by
the Secretary that the Department of the
Interior has the capacity, including policies
and procedures, to track and manage interests
in trust or restricted land held with the right
of survivorship, the Secretary shall certify
such determination and publish such
certification in the Federal Register.]
(1) Presumption of joint tenancy.--If a testator
devises trust or restricted interests in the same
parcel of land to more than 1 person, in the absence of
clear and express language in the devise stating that
the interest is to pass to the devisees as tenants in
common, the devise shall be presumed to create a joint
tenancy with the right of survivorship in the interests
involved.
(2) Exception.--Paragraph (1) shall not apply to any
devise of an interest in trust or restricted land where
the will in which such devise is made was executed
prior to the date that is 1 year after the date on
which the Secretary publishes the certification
required by section 8(a)(4) of the American Indian
Probate Reform Act of 2004.
* * * * * * *
(f) 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.]
(1) In general.--
(A) The activities conducted under this
subsection shall be conducted in accordance
with any applicable--
(i) tribal probate code; or
(ii) tribal land consolidation plan.
(B) The Secretary shall provide estate
planning assistance in accordance with this
subsection, to the extent amounts are
appropriated for such purpose.
(2) Requirements.--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)] (D) assist Indian landowners in
accessing information pursuant to section
217(e).
(B) dramatically increase the use of wills
and other methods of devise among Indian
landowners;
(C) substantially reduce the quantity and
complexity of Indian estates that pass
intestate through the probate process, while
protecting the rights and interests of Indian
landowners; and
[(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.
[(g) 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).]
(3) Probate code development and legal assistance
grants.--In carrying out this section, the Secretary
may award grants to--
(A) Indian tribes, for purposes of tribal
probate code development and estate planning
services to tribal members;
(B) organizations that provide legal
assistance services for Indian tribes, Indian
organizations, and individual owners of
interests in trust or restricted lands that are
qualified as nonprofit organizations under
section 501(c)(3) of the Internal Revenue Code
of 1986 and provide such services pursuant to
Federal poverty guidelines, for purposes of
providing civil legal assistance to such Indian
tribes, individual owners, and Indian
organizations for the development of tribal
probate codes, for estate planning services or
for other purposes consistent with the services
they provide to Indians and Indian tribes; and
(C) in specific areas and reservations where
qualified nonprofit organizations referred to
in subparagraph (B) do not provide such legal
assistance to Indian tribes, Indian
organizations, or individual owners of trust or
restricted land, to other providers of such
legal assistance;
that submit an application to the Secretary, in such
form and manner as the Secretary may prescribe.
(4) Authorization for appropriations.--There is
authorized to be appropriated such sums as may be
necessary to carry out the provisions of paragraph (3).
(h) Applicable Federal Law.--
(1) In general.--Any references in subsections (a)
and (b) to applicable Federal law include--
(A) Public Law 91-627 (84 Stat. 1874);
(B) Public Law 92-377 (86 Stat. 530);
(C) Public Law 92-443 (86 Stat. 744);
(D) Public Law 96-274 (94 Stat. 537); and
(E) Public Law 98-513 (98 Stat. 2411).
(2) No effect on laws.--Nothing in this Act amends or
otherwise affects the application of any law described
in paragraph (1), or any other Federal law that
pertains to--
(A) trust or restricted land located on 1 or
more specific Indian reservations that are
expressly identified in such law; or
(B) the allotted lands of 1 or more specific
Indian tribes that are expressly identified in
such law.
(i) Rules of Interpretation.--In the absence of a contrary
intent, and except as otherwise provided under this Act,
applicable Federal law, or a tribal probate code approved by
the Secretary pursuant to section 206, wills shall be construed
as to trust and restricted land and trust personalty in
accordance with the following rules:
(1) Construction that will passes all property.--A
will shall be construed to apply to all trust and
restricted land and trust personalty which the testator
owned at his death, including any such land or
personalty acquired after the execution of his will.
(2) Class gifts.--
(A) No differentiation between relationship
by blood and relationship by affinity.--Terms
of relationship that do not differentiate
relationships by blood from those by affinity,
such as ``uncles'', ``aunts'', ``nieces'', or
``nephews'', are construed to exclude relatives
by affinity. Terms of relationship that do not
differentiate relationships by the half blood
from those by the whole blood, such as
``brothers'', ``sisters'', ``nieces'', or
``nephews'', are construed to include both
types of relationships.
(B) Meaning of ``heirs'' and ``next of kin'',
etc.; time of ascertaining class.--A devise of
trust or restricted interest in land or an
interest in trust personalty to the testator's
or another designated person's ``heirs'',
``next of kin'', ``relatives'', or ``family''
shall mean those persons, including the spouse,
who would be entitled to take under the
provisions of this Act for nontestamentary
disposition. The class is to be ascertained as
of the date of the testator's death.
(C) Time for ascertaining class.--In
construing a devise to a class other than a
class described in subparagraph (B), the class
shall be ascertained as of the time the devise
is to take effect in enjoyment. The surviving
issue of any member of the class who is then
dead shall take by right of representation the
share which their deceased ancestor would have
taken.
(3) Meaning of ``die without issue'' and similar
phrases.--In any devise under this chapter, the words
``die without issue'', ``die without leaving issue'',
``have no issue'', or words of a similar import shall
be construed to mean that an individual had no lineal
descendants in his lifetime or at his death, and not
that there will be no lineal descendants at some future
time.
(4) Persons born out of wedlock.--In construing
provisions of this chapter relating to lapsed and void
devises, and in construing a devise to a person or
persons described by relationship to the testator or to
another, a person born out of wedlock shall be
considered the child of the natural mother and also of
the natural father.
(5) Lapsed devises.--Subject to the provisions of
subsection (b), where the testator devises or bequeaths
a trust or restricted interest in land or trust
personalty to the testator's grandparents or to the
lineal descendent of a grandparent, and the devisee or
legatee dies before the testator leaving lineal
descendents, such descendents shall take the interest
so devised or bequeathed per stirpes.
(6) Void devises.--Except as provided in paragraph
(5), and if the disposition shall not be otherwise
expressly provided for by a tribal probate code
approved under section 206 (25 U.S.C. 2205), if a
devise other than a residuary devise of a trust or
restricted interest in land or trust personalty fails
for any reason, such interest shall become part of the
residue and pass, subject to the provisions of
subsection (b), to the other residuary devisees, if
any, in proportion to their respective shares or
interests in the residue.
(7) Family cemetery plot.--If a family cemetery plot
owned by the testator at his decease is not mentioned
in the decedent's will, the ownership of the plot shall
descend to his heirs as if he had died intestate.
(j) Heirship by Killing.--
(1) Heir by killing defined.--As used in this
subsection, ``heir by killing'' means any person who
knowingly participates, either as a principal or as an
accessory before the fact, in the willful and unlawful
killing of the decedent.
(2) No acquisition of property by killing.--Subject
to any applicable Federal law relating to the devise or
descent of trust or restricted land, no heir by killing
shall in any way acquire any trust or restricted
interests in land or interests in trust personalty as
the result of the death of the decedent, but such
property shall pass in accordance with this subsection.
(3) Descent, distribution, and right of
survivorship.--The heir by killing shall be deemed to
have predeceased the decedent as to decedent's trust or
restricted interests in land or trust personalty which
would have passed from the decedent or his estate to
such heir--
(A) under intestate succession under this
section;
(B) under a tribal probate code, unless
otherwise provided for;
(C) as the surviving spouse;
(D) by devise;
(E) as a reversion or a vested remainder;
(F) as a survivorship interest; and
(G) as a contingent remainder or executory or
other future interest.
(4) Joint tenants, joint owners, and joint
obligees.--
(A) Any trust or restricted land or trust
personalty held by only the heir by killing and
the decedent as joint tenants, joint owners, or
joint obligees shall pass upon the death of the
decedent to his or her estate, as if the heir
by killing had predeceased the decedent.
(B) As to trust or restricted land or trust
personalty held jointly by 3 or more persons,
including both the heir by killing and the
decedent, any income which would have accrued
to the heir by killing as a result of the death
of the decedent shall pass to the estate of the
decedent as if the heir by killing had
predeceased the decedent and any surviving
joint tenants.
(C) Notwithstanding any other provision of
this subsection, the decedent's trust or
restricted interest land or trust personalty
that is held in a joint tenancy with the right
of survivorship shall be severed from the joint
tenancy as though the property held in the
joint tenancy were to be severed and
distributed equally among the joint tenants and
the decedent's interest shall pass to his
estate; the remainder of the interests shall
remain in joint tenancy with right of
survivorship among the surviving joint tenants.
(5) Life estate for the life of another.--If the
estate is held by a third person whose possession
expires upon the death of the decedent, it shall remain
in such person's hands for the period of time following
the decedent's death equal to the life expectancy of
the decedent but for the killing.
(6) Preadjudication rule.--
(A) In general.--If a person has been
charged, whether by indictment, information, or
otherwise by the United States, a tribe, or any
State, with voluntary manslaughter or homicide
in connection with a decedent's death, then any
and all trust or restricted land or trust
personalty that would otherwise pass to that
person from the decedent's estate shall not
pass or be distributed by the Secretary until
the charges have been resolved in accordance
with the provisions of this paragraph.
(B) Dismissal or withdrawal.--Upon dismissal
or withdrawal of the charge, or upon a verdict
of not guilty, such land and personalty shall
pass as if no charge had been filed or made.
(C) Conviction.--Upon conviction of such
person, and the exhaustion of all appeals, if
any, the trust and restricted land and trust
personalty in the estate shall pass in
accordance with this subsection.
(7) Broad construction; policy of subsection.--This
subsection shall not be considered penal in nature, but
shall be construed broadly in order to effect the
policy that no person shall be allowed to profit by his
own wrong, wherever committed.
(k) General Rules Governing Probate.--
(1) Scope.--Except as provided under applicable
Federal law or a tribal probate code approved under
section 206, the provisions of this subsection shall
govern the probate of estates containing trust and
restricted interests in land or trust personalty.
(2) Pretermitted spouses and children.--
(A) Spouses.--
(i) In general.--Except as provided
in clause (ii), if the surviving spouse
of a testator married the testator
after the testator executed the will of
the testator, the surviving spouse
shall receive the intestate share in
the decedent's trust or restricted land
and trust personalty that the spouse
would have received if the testator had
died intestate.
(ii) Exception.--Clause (i) shall not
apply to a trust or restricted interest
land where--
(I) the will of a testator is
executed before the date of
enactment of this subparagraph;
(II)(aa) the spouse of a
testator is a non-Indian; and
(bb) the testator devised the
interests in trust or
restricted land of the testator
to 1 or more Indians;
(III) it appears, based on an
examination of the will or
other evidence, that the will
was made in contemplation of
the marriage of the testator to
the surviving spouse;
(IV) the will expresses the
intention that the will is to
be effective notwithstanding
any subsequent marriage; or
(V)(aa) the testator provided
for the spouse by a transfer of
funds or property outside the
will; and
(bb) an intent that the
transfer be in lieu of a
testamentary provision is
demonstrated by statements of
the testator or through a
reasonable inference based on
the amount of the transfer or
other evidence.
(iii) Spouses married at the time of
the will.--Should the surviving spouse
of the testator be omitted from the
will of the testator, the surviving
spouse shall be treated, for purposes
of trust or restricted land or trust
personalty in the testator's estate, in
accordance with the provisions of
section 207(a)(2)(A), as though there
was no will but only if--
(I) the testator and
surviving spouse were
continuously married without
legal separation for the 5-year
period preceding the decedent's
death;
(II) the testator and
surviving spouse have a
surviving child who is the
child of the testator;
(III) the surviving spouse
has made substantial payments
toward the purchase of, or
improvements to, the trust or
restricted land in such estate;
or
(IV) the surviving spouse is
under a binding obligation to
continue making loan payments
for the trust or restricted
land for a substantial period
of time;
except that, if there is evidence that
the testator adequately provided for
the surviving spouse and any minor
children by a transfer of funds or
property outside of the will, this
clause shall not apply.
(B) Children.--
(i) In general.--If a testator
executed the will of the testator
before the birth or adoption of 1 or
more children of the testator, and the
omission of the children from the will
is a product of inadvertence rather
than an intentional omission, the
children shall share in the trust or
restricted interests in land and trust
personalty as if the decedent had died
intestate.
(ii) Adopted heirs.--Any person
recognized as an heir by virtue of
adoption under the Act of July 8, 1940
(25 U.S.C. 372a), shall be treated as
the child of a decedent under this
subsection.
(iii) Adopted-out children.--
(I) In general.--For purposes
of this Act, an adopted person
shall not be considered the
child or issue of his natural
parents, except in distributing
the estate of a natural kin,
other than the natural parent,
who has maintained a family
relationship with the adopted
person. If a natural parent
shall have married the adopting
parent, the adopted person for
purposes of inheritance by,
from and through him shall also
be considered the issue of such
natural parent.
(II) Eligible heir pursuant
to other Federal law or tribal
law.--Notwithstanding the
provisions of subparagraph
(B)(iii)(I), other Federal laws
and laws of the Indian tribe
with jurisdiction over the
trust or restricted interest in
land may otherwise define the
inheritance rights of adopted-
out children.
(3) Divorce.--
(A) Surviving spouse.--
(i) In general.--An individual who is
divorced from a decedent, or whose
marriage to the decedent has been
annulled, shall not be considered to be
a surviving spouse unless, by virtue of
a subsequent marriage, the individual
is married to the decedent at the time
of death of the decedent.
(ii) Separation.--A decree of
separation that does not dissolve a
marriage, and terminate the status of
husband and wife, shall not be
considered a divorce for the purpose of
this subsection.
(iii) No effect on adjudications.--
Nothing in clause (i) shall prevent the
Secretary from giving effect to a
property right settlement relating to a
trust or restricted interest in land or
an interest in trust personalty if 1 of
the parties to the settlement dies
before the issuance of a final decree
dissolving the marriage of the parties
to the property settlement.
(B) Effect of subsequent divorce on a will or
devise.--
(i) In general.--If, after executing
a will, a testator is divorced or the
marriage of the testator is annulled,
as of the effective date of the divorce
or annulment, any disposition of trust
or restricted interests in land or of
trust personalty made by the will to
the former spouse of the testator shall
be considered to be revoked unless the
will expressly provides otherwise.
(ii) Property.--Property that is
prevented from passing to a former
spouse of a decedent under clause (i)
shall pass as if the former spouse
failed to survive the decedent.
(iii) Provisions of wills.--Any
provision of a will that is considered
to be revoked solely by operation of
this subparagraph shall be revived by
the remarriage of a testator to the
former spouse of the testator.
(4) After-born heirs.--A child in gestation at the
time of decedent's death will be treated as having
survived the decedent if the child lives at least 120
hours after its birth.
(5) Advancements of trust personalty during lifetime;
effect on distribution of estate.--
(A) The trust personalty of a decedent who
dies intestate as to all or a portion of his or
her estate, given during the decedent's
lifetime to a person eligible to be an heir of
the decedent under subsection (b)(2)(B), shall
be treated as an advancement against the heir's
inheritance, but only if the decedent declared
in a contemporaneous writing, or the heir
acknowledged in writing, that the gift is an
advancement or is to be taken into account in
computing the division and distribution of the
decedent's intestate estate.
(B) For the purposes of this section, trust
personalty advanced during the decedent's
lifetime is valued as of the time the heir came
into possession or enjoyment of the property or
as of the time of the decedent's death,
whichever occurs first.
(C) If the recipient of the trust personalty
predeceases the decedent, the property shall
not be treated as an advancement or taken into
account in computing the division and
distribution of the decedent's intestate estate
unless the decedent's contemporaneous writing
provides otherwise.
(6) Heirs related to decedent through 2 lines; single
share.--A person who is related to the decedent through
2 lines of relationship is entitled to only a single
share of the trust or restricted land or trust
personalty in the decedent's estate based on the
relationship that would entitle such person to the
larger share.
(7) Notice.--
(A) In general.--To the maximum extent
practicable, the Secretary shall notify each
owner of trust and restricted land of the
provisions of this Act.
(B) Combined notices.--The notice under
subparagraph (A) may, at the discretion of the
Secretary, be provided with the notice required
under subsection (a) of section 8 of the
American Indian Probate Reform Act of 2004.
(8) Renunciation or disclaimer of interests.--
(A) In general.--Any person 18 years of age
or older may renounce or disclaim an
inheritance of a trust or restricted interest
in land or in trust personalty through
intestate succession or devise, either in full
or subject to the reservation of a life estate
(where the interest is an interest in land), in
accordance with subparagraph (B), by filing a
signed and acknowledged declaration with the
probate decisionmaker prior to entry of a final
probate order. No interest so renounced or
disclaimed shall be considered to have vested
in the renouncing or disclaiming heir or
devisee, and the renunciation or disclaimer
shall not be considered to be a transfer or
gift of the renounced or disclaimed interest.
(B) Eligible recipients of renounced or
disclaimed interests; notice to recipients.--
(i) Interests in land.--A trust or
restricted interest in land may be
renounced or disclaimed only in favor
of--
(I) an eligible heir;
(II) any person who would
have been eligible to be a
devisee of the interest in
question pursuant to subsection
(b)(1)(A) (but only in cases
where the renouncing person is
a devisee of the interest under
a valid will); or
(III) the Indian tribe with
jurisdiction over the interest
in question;
and the interest so renounced shall
pass to its recipient in trust or
restricted status.
(ii) Trust personalty.--An interest
in trust personalty may be renounced or
disclaimed in favor of any person who
would be eligible to be a devisee of
such an interest under subsection
(b)(3) and shall pass to the recipient
in accordance with the provisions of
that subsection.
(iii) Unauthorized renunciations and
disclaimers.--Unless renounced or
disclaimed in favor of a person or
Indian tribe eligible to receive the
interest in accordance with the
provisions of this subparagraph, a
renounced or disclaimed interest shall
pass as if the renunciation or
disclaimer had not been made.
(C) Acceptance of interest.--A renunciation
or disclaimer of an interest filed in
accordance with this paragraph shall be
considered accepted when implemented in a final
order by a decisionmaker, and shall thereafter
be irrevocable. No renunciation or disclaimer
of an interest shall be included in such order
unless the recipient of the interest has been
given notice of the renunciation or disclaimer
and has not refused to accept the interest. All
disclaimers and renunciations filed and
implemented in probate orders made effective
prior to the date of enactment of the American
Indian Probate Reform Act of 2004 are hereby
ratified.
(D) Rule of construction.--Nothing in this
paragraph shall be construed to allow the
renunciation of an interest that is subject to
the provisions of section 207(a)(2)(D) (25
U.S.C. 2206(a)(2)(D)) in favor of more than 1
person.
(9) Consolidation agreements.--
(A) In general.--During the pendency of
probate, the decisionmaker is authorized to
approve written consolidation agreements
effecting exchanges or gifts voluntarily
entered into between the decedent's eligible
heirs or devisees, to consolidate interests in
any tract of land included in the decedent's
trust inventory. Such agreements may provide
for the conveyance of interests already owned
by such heirs or devisees in such tracts,
without having to comply with the Secretary's
rules and requirements otherwise applicable to
conveyances by deed of trust or restricted
interests in land.
(B) Effective.--An agreement approved under
subparagraph (A) shall be considered final when
implemented in an order by a decisionmaker. The
final probate order shall direct any changes
necessary to the Secretary's land records, to
reflect and implement the terms of the approved
agreement.
(C) Effect on purchase option at probate.--
Any interest in trust or restricted land that
is subject to a consolidation agreement under
this paragraph or section 207(e) (25 U.S.C.
2206(e)) shall not be available for purchase
under section 207(p) (25 U.S.C. 2206(p)) unless
the decisionmaker determines that the agreement
should not be approved.
(l) Notification to Landowners.--After receiving written
request by any owner of a trust or restricted interest in land,
the Secretary shall provide to such landowner the following
information with respect to each tract of trust or restricted
land in which the landowner has an interest:
(1) The location of the tract of land involved.
(2) The identity of each other co-owner of interests
in the parcel of land.
(3) The percentage of ownership of each owner of an
interest in the tract.
(m) Pilot Project for the Management of Trust Assets of
Indian Families and Relatives.--
(1) Development pilot project.--The Secretary shall
consult with tribes, individual landowner
organizations, Indian advocacy organizations, and other
interested parties to--
(A) develop a pilot project for the creation
of legal entities such as private or family
trusts, partnerships corporations, or other
organizations to improve, facilitate, and
assist in the efficient management of interests
in trust or restricted lands or funds owned by
Indian family members and relatives; and
(B) develop proposed rules, regulations, and
guidelines to implement the pilot project,
including--
(i) the criteria for establishing
such legal entities;
(ii) reporting and other requirements
that the Secretary determines to be
appropriate for administering such
entities; and
(iii) provisions for suspending or
revoking the authority of an entity to
engage in activities relating to the
management of trust or restricted
assets under the pilot project in order
to protect the interests of the
beneficial owners of such assets.
(2) Primary purposes; limitation; approval of
transactions; payments by secretary.--
(A) Purposes.--The primary purpose of any
entity organized under the pilot project shall
be to improve, facilitate, and assist in the
management of interests in trust or restricted
land, held by 1 or more persons, in furtherance
of the purposes of this Act.
(B) Limitation.--The organization or
activities of any entity under the pilot
project shall not be construed to impair,
impede, replace, abrogate, or modify in any
respect the trust duties or responsibilities of
the Secretary, nor shall anything in this
subsection or in any rules, regulations, or
guidelines developed under this subsection
enable any private or family trustee of trust
or restricted interests in land to exercise any
powers over such interests greater than that
held by the Secretary with respect to such
interests.
(C) Secretarial approval of transactions.--
Any transaction involving the lease, use,
mortgage or other disposition of trust or
restricted land or other trust assets
administered by or through an entity under the
pilot project shall be subject to approval by
the Secretary in accordance with applicable
Federal law.
(D) Payments.--The Secretary shall have the
authority to make payments of income and
revenues derived from trust or restricted land
or other trust assets administered by or
through an entity participating in the pilot
project directly to the entity, in accordance
with requirements of the regulations adopted
pursuant to this subsection.
(3) Limitations on pilot project.--
(A) Number of organizations.--The number of
entities established under the pilot project
authorized by this subsection shall not exceed
30.
(B) Regulations required.--No entity shall
commence activities under the pilot project
authorized by this subsection until the
Secretary has adopted final rules and
regulations under paragraph (1)(B).
(4) Report to congress.--Prior to the expiration of
the pilot project provided for under this subsection,
the Secretary shall submit a report to Congress
stating--
(A) a description of the Secretary's
consultation with Indian tribes, individual
landowner associations, Indian advocacy
organizations, and other parties consulted with
regarding the development of rules and
regulations for the creation and management of
interests in trust and restricted lands under
the pilot project;
(B) the feasibility of accurately monitoring
the performance of legal entities such as those
involved in the pilot project, and the
effectiveness of such entities as mechanisms to
manage and protect trust assets;
(C) the impact that the use of entities such
as those in the pilot project may have with
respect to the accomplishment of the goals of
the Indian Land Consolidation Act (25 U.S.C.
2201 et seq.); and
(D) any recommendations that the Secretary
may have regarding whether to adopt a permanent
program as a management and consolidation
measure for interests in trust or restricted
lands.
(n) Notice to Heirs.--Prior to holding a hearing to determine
the heirs to trust or restricted property, or making a decision
determining such heirs, the Secretary shall seek to provide
actual written notice of the proceedings to all heirs. Such
efforts shall include--
(1) a search of publicly available records and
Federal records, including telephone and address
directories and including electronic search services or
directories;
(2) an inquiry with family members and co-heirs of
the property;
(3) an inquiry with the tribal government of which
the owner is a member, and the tribal government with
jurisdiction over the property, if any; and
(4) if the property is of a value greater than
$2,000, engaging the services of an independent firm to
conduct a missing persons search.
(o) Missing Heirs.--
(1) For purposes of this subsection and subsection
(m), an heir may be presumed missing if--
(A) such heir's whereabouts remain unknown 60
days after completion of notice efforts under
subsection (m); and
(B) in the proceeding to determine a
decedent's heirs, the Secretary finds that the
heir has had no contact with other heirs of the
decedent, if any, or with the Department
relating to trust or restricted land or other
trust assets at any time during the 6-year
period preceding the hearing to determine
heirs.
(2) Before the date for declaring an heir missing,
any person may request an extension of time to locate
such heir. The Secretary shall grant a reasonable
extension of time for good cause.
(3) An heir shall be declared missing only after a
review of the efforts made in the heirship proceeding
and a finding has been made that this subsection has
been complied with.
(4) An heir determined to be missing pursuant to this
subsection shall be deemed to have predeceased the
decedent for purposes of descent and devise of trust or
restricted land and trust personalty within that
decedent's estate.
(p) Purchase Option at Probate.--
(1) In general.--The trust or restricted interests in
a parcel of land in the decedent's estate may be
purchased at probate in accordance with the provisions
of this subsection.
(2) Sale of interest at fair market value.--Subject
to paragraph (3), the Secretary is authorized to sell
trust or restricted interests in land subject to this
subsection, including the interest that a surviving
spouse would otherwise receive under section 207(a)(2)
(A) or (D), at no less than fair market value, as
determined in accordance with the provisions of this
Act, to any of the following eligible purchasers:
(A) Any other eligible heir taking an
interest in the same parcel of land by
intestate succession or the decedent's other
devisees of interests in the same parcel who
are eligible to receive a devise under section
207(b)(1)(A).
(B) All persons who own undivided trust or
restricted interests in the same parcel of land
involved in the probate proceeding.
(C) The Indian tribe with jurisdiction over
the interest, or the Secretary on behalf of
such Indian tribe.
(3) Request to purchase; auction; consent
requirements.--No sale of an interest in probate shall
occur under this subsection unless--
(A) an eligible purchaser described in
paragraph (2) submits a written request to
purchase prior to the distribution of the
interest to heirs or devisees of the decedent
and in accordance with any regulations of the
Secretary; and
(B) except as provided in paragraph (5), the
heirs or devisees of such interest, and the
decedent's surviving spouse, if any, receiving
a life estate under section 207(a)(2) (A) or
(D) consent to the sale.
If the Secretary receives more than 1 request to
purchase the same interest, the Secretary shall sell
the interest by public auction or sealed bid (as
determined by the Secretary) at not less than the
appraised fair market value to the eligible purchaser
submitting the highest bid.
(4) Appraisal and notice.--Prior to the sale of an
interest pursuant to this subsection, the Secretary
shall--
(A) appraise the interest at its fair market
value in accordance with this Act;
(B) provide eligible heirs, other devisees,
and the Indian tribe with jurisdiction over the
interest with written notice, sent by first
class mail, that the interest is available for
purchase in accordance with this subsection;
and
(C) if the Secretary receives more than 1
request to purchase the interest by a person
described in subparagraph (B), provide notice
of the manner (auction or sealed bid), time and
place of the sale, a description, and the
appraised fair market value, of the interest to
be sold--
(i) to the heirs or other devisees
and the Indian tribe with jurisdiction
over the interest, by first class mail;
and
(ii) to all other eligible
purchasers, by posting written notice
in at least 5 conspicuous places in the
vicinity of the place of hearing.
(5) Small undivided interests in indian lands.--
(A) In general.--Subject to subparagraph (B),
the consent of a person who is an heir
otherwise required under paragraph (3)(B) shall
not be required for the auction and sale of an
interest at probate under this subsection if--
(i) the interest is passing by
intestate succession; and
(ii) prior to the auction the
Secretary determines in the probate
proceeding that the interest passing to
such heir represents less than 5
percent of the entire undivided
ownership of the parcel of land as
evidenced by the Secretary's records as
of the time the determination is made.
(B) Exception.--Notwithstanding subparagraph
(A), the consent of such heir shall be required
for the sale at probate of the heir's interest
if, at the time of the decedent's death, the
heir was residing on the parcel of land of
which the interest to be sold was a part.
(6) Distribution of proceeds.--Proceeds from the sale
of interests under this subsection shall be distributed
to the heirs, devisees, or spouse whose interest was
sold in accordance with the values of their respective
interests. The proceeds attributable to an heir or
devisee shall be held in an account as trust personalty
if the interest sold would have otherwise passed to the
heir or devisee in trust or restricted status.
* * * * * * *
[SEC. 213. PILOT PROGRAM FOR THE ACQUISITION OF FRACTIONAL INTERESTS.]
SEC. 2212. FRACTIONAL INTEREST ACQUISITION PROGRAM.
(a) Acquisition by Secretary.--
(1) In general.--The Secretary may acquire, at the
discretion of the Secretary and with the consent of the
owner, or from an heir during probate in accordance
with section 207(p) (25 U.S.C. 2206(p)) 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(g)(5).
[(B) Required report.--Prior to expiration of
the authority provided for in subparagraph (A),
the Secretary shall submit]
(2) Authority of secretary.--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] how
the fractional interest acquisition program should be
enhanced to increase the resources made available to
Indian tribes and individual Indian landowners.
* * * * * * *
(b) Requirements.--In implementing subsection (a), the
Secretary--
(1) * * *
* * * * * * *
[(4) shall minimize the administrative costs
associated with the land acquisition program.]
(4) shall minimize the administrative costs
associated with the land acquisition program through
the use of policies and procedures designed to
accommodate the voluntary sale of interests under this
section, notwithstanding the existence of any otherwise
applicable policy, procedure, or regulation, through
the elimination of duplicate--
(A) conveyance documents;
(B) administrative proceedings; and
(C) transactions.
(c) Sale of Interest to Indian Landowners.--
(1) Conveyance at request.--
(A) In general.--At the request of any Indian
who owns [at least 5 percent of the] an
undivided interest in a parcel of trust or
restricted land, the Secretary shall convey an
interest in such parcel acquired under this
section to the Indian [landowner upon payment
by the Indian landowner of the amount paid for
the interest by the Secretary.] landowner--
(i) on payment by the Indian
landowner of the amount paid for the
interest by the Secretary; or
(ii) if--
(I) the Indian referred to in
this subparagraph provides
assurances that the purchase
price will be paid by pledging
revenue from any source,
including trust resources; and
(II) the Secretary determines
that the purchase price will be
paid in a timely and efficient
manner.
(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 unless the interest is subject to a
foreclosure of a mortgage in accordance with
the Act of March 29, 1956 (25 U.S.C. 483a).
* * * * * * *
(3) Limitation.--If an Indian tribe that has
jurisdiction over a parcel of trust or restricted land
owns [10 percent or more of the undivided interests] an
undivided interest in a parcel of such land, such
interest may only be acquired under paragraph (1) with
the consent of such Indian tribe.
(d) Authorization of Appropriations.--There is authorized to
be appropriated to carry out this section $75,000,000 for
fiscal year 2005, $95,000,000 for fiscal year 2006, and
$145,000,000 for each of fiscal years 2007 through 2010.
SEC. 214. ADMINISTRATION OF ACQUIRED FRACTIONAL INTERESTS, DISPOSITION
OF PROCEEDS.
(a) * * *
[(b) Conditions.--
[(1) In general.--The conditions described in this
paragraph are as follows:
[(A) Until the purchase price paid by the
Secretary for an interest referred to in
subsection (a) has been recovered, or until the
Secretary makes any of the findings under
paragraph (2)(A), any lease, resource sale
contract, right-of-way, or other document
evidencing a transaction affecting the interest
shall contain a clause providing that all
revenue derived from the interest shall be paid
to the Secretary.
[(B) 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.]
(b) Application of Revenue From Acquired Interests to Land
Consolidation Program.--
(1) In general.--The Secretary shall have a lien on
any revenue accruing to an interest described in
subsection (a) until the Secretary provides for the
removal of the lien under paragraph (3), (4), or (5).
(2) Requirements.--
(A) In general.--Until the Secretary removes
a lien from an interest in land under paragraph
(1)--
(i) any lease, resource sale
contract, right-of-way, or other
document evidencing a transaction
affecting the interest shall contain a
clause providing that all revenue
derived from the interest shall be paid
to the Secretary; and
(ii) any revenue derived from any
interest acquired by the Secretary in
accordance with section 213 shall be
deposited in the fund created under
section 216.
(B) Approval of transactions.--
Notwithstanding section 16 of the Act of June
18, 1934 (commonly known as the ``Indian
Reorganization Act'') (25 U.S.C. 476), or any
other provision of law, until the Secretary
removes a lien from an interest in land under
paragraph (1), the Secretary may approve a
transaction covered under this section on
behalf of an Indian tribe.
(3) Removal of liens after findings.--The Secretary
may remove a lien referred to in paragraph (1) if the
Secretary makes a finding that--
(A) the costs of administering the interest
from which revenue accrues under the lien will
equal or exceed the projected revenues for the
parcel of land involved;
(B) in the discretion of the Secretary, it
will take an unreasonable period of time for
the parcel of land to generate revenue that
equals the purchase price paid for the
interest; or
(C) a subsequent decrease in the value of
land or commodities associated with the parcel
of land make it likely that the interest will
be unable to generate revenue that equals the
purchase price paid for the interest in a
reasonable time.
(4) Removal of liens upon payment into the
acquisition fund.--The Secretary shall remove a lien
referred to in paragraph (1) upon payment of an amount
equal to the purchase price of that interest in land
into the Acquisition Fund created under section 2215 of
this title, except where the tribe with jurisdiction
over such interest in land authorizes the Secretary to
continue the lien in order to generate additional
acquisition funds.
(5) Other removal of liens.--The Secretary may, in
consultation with tribal governments and other entities
described in section 213(b)(3), periodically remove
liens referred to in paragraph (1) from interests in
land acquired by the Secretary.
* * * * * * *
SEC. 216. ACQUISITION FUND.
(a) In General.--The Secretary shall establish an Acquisition
Fund to--
(1) * * *
[(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 or paid by Indian
landowners under section 213(c).]
(2) collect all revenues received from the lease,
permit, or sale of resources from interests acquired
under section 213 or paid by Indian landowners under
section 213.
(b) Deposits; Use.--
(1) In general.--[Subject to paragraph (2), all] 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[.]; and
(C) be used to acquire undivided interests on
the reservation from which the income was
derived.
[(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.]
(2) Use of funds.--The Secretary may use the revenue
deposited in the Acquisition Fund under paragraph (1)
to acquire some or all of the undivided interests in
any parcels of land in accordance with section 205.
SEC. 217. TRUST AND RESTRICTED LAND TRANSACTIONS.
(a) * * *
(b) Sales, Exchanges and Gift Deeds Between Indians and
Between Indians and Indian Tribes.--
(1) In general.--
(A) * * *
[(B) Waiver of requirement.--The requirement
for an estimate of value under subparagraph (A)
may be waived in writing by an Indian selling,
exchanging, or conveying by gift deed for no or
nominal consideration 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.]
(B) Waiver of requirement.--The requirement
for an estimate of value under subparagraph (A)
may be waived in writing by an owner of a trust
or restricted interest in land either selling,
exchanging, or conveying by gift deed for no or
nominal consideration such interest--
(i) to an Indian person who is the
owner's spouse, brother, sister, lineal
ancestor, lineal descendant, or
collateral heir; or
(ii) to an Indian co-owner or to the
tribe with jurisdiction over the
subject parcel of land, where the
grantor owns a fractional interest that
represents 5 percent or less of the
parcel.
* * * * * * *
(e) 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--] Notwithstanding any other provision of law, the
names and mailing addresses of the owners of any interest in
trust or restricted lands, and information on the location of
the parcel and the percentage of undivided interest owned by
each individual shall, upon written request, be made available
to
(1) other [Indian] owners of interests in trust or
restricted lands within the same reservation;
* * * * * * *
(3) [prospective applicants for the leasing, use, or
consolidation of] any person that is leasing, using, or
consolidating, or is applying to lease, use, or
consolidate, such trust or restricted land or the
interest in trust or restricted lands.
[(f) Notice to Indian Tribe.--After the expiration of the
limitation period provided for in subsection (b)(2) and prior
to considering an Indian application to terminate the trust
status or to remove the restrictions on alienation from trust
or restricted land sold, exchanged or otherwise conveyed under
this section, the Indian tribe that exercises jurisdiction over
the parcel of such land shall be notified of the application
and given the opportunity to match the purchase price that has
been offered for the trust or restricted land involved.]
(f) Purchase of Land by Indian Tribe.--
(1) In general.--Except as provided in paragraph (2),
before the Secretary approves an application to
terminate the trust status or remove the restrictions
on alienation from a parcel of, or interest in, trust
or restricted land, the Indian tribe with jurisdiction
over the parcel shall have the opportunity--
(A) to match any offer contained in the
application; or
(B) in a case in which there is no purchase
price offered, to acquire the interest in the
parcel by paying the fair market value of the
interest.
(2) Exception for family farms.--
(A) In general.--Paragraph (1) shall not
apply to a parcel of, or interest in, trust or
restricted land that is part of a family farm
that is conveyed to a member of the family of a
landowner (as defined in section
206(c)(2)(A)(iv)) if the conveyance requires
that in the event that the parcel or interest
is offered for sale to an entity or person that
is not a member of the family of the landowner,
the Indian tribe with jurisdiction over the
land shall be afforded the opportunity to
purchase the interest pursuant to paragraph
(1).
(B) Applicability of other provision.--
Section 206(c)(2)(A) shall apply with respect
to the recording and mortgaging of any trust or
restricted land referred to in subparagraph
(A).
* * * * * * *
SEC. 219. APPROVAL OF LEASES, RIGHTS-OF-WAY, AND SALES OF NATURAL
RESOURCES.
(a) * * *
(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] 90
percent.
* * * * * * *
(g) Other Laws.--Nothing in this Act shall be construed to
supersede, repeal, or modify any general or specific statute
authorizing the grant or approval of any type of land use
transaction involving fractional interests in trust or
restricted land.
* * * * * * *
SEC. 221. OWNER-MANAGED INTERESTS.
(a) Purpose.--The purpose of this section is to provide a
means for the co-owners of trust or restricted interests in a
parcel of land to enter into surface leases of such parcel for
certain purposes without approval of the Secretary.
(b) Mineral Interests.--Nothing in this section shall be
construed to limit or otherwise affect the application of any
Federal law requiring the Secretary to approve mineral leases
or other agreements for the development of the mineral interest
in trust or restricted land.
(c) Owner Management.--
(1) In general.--Notwithstanding any provision of
Federal law requiring the Secretary to approve
individual Indian leases of individual Indian trust or
restricted land, where the owners of all of the
undivided trust or restricted interests in a parcel of
land have submitted applications to the Secretary
pursuant to subsection (a), and the Secretary has
approved such applications under subsection (d), such
owners may, without further approval by the Secretary,
enter into a lease of the parcel for agricultural
purposes for a term not to exceed 10 years.
(2) Rule of construction.--No such lease shall be
effective until it has been executed by the owners of
all undivided trust or restricted interests in the
parcel.
(d) Approval of Applications for Owner Management.--
(1) In general.--Subject to the provisions of
paragraph (2), the Secretary shall approve an
application for owner management submitted by a
qualified applicant pursuant to this section unless the
Secretary has reason to believe that the applicant is
submitting the application as the result of fraud or
undue influence. No such application shall be valid or
considered if it is received by the Secretary prior to
the date that is 1 year after the date on which notice
is published pursuant to section 8(a)(4) of the
American Indian Probate Reform Act of 2004.
(2) Commencement of owner-managed status.--
Notwithstanding the approval of 1 or more applications
pursuant to paragraph (1), no trust or restricted
interest in a parcel of land shall acquire owner-
managed status until applications for all of the trust
or restricted interests in such parcel of land have
been submitted to and approved by the Secretary
pursuant to this section.
(e) Validity of Leases.--No lease of trust or restricted
interests in a parcel of land that is owner-managed under this
section shall be valid or enforceable against the owners of
such interests, or against the land, the interest or the United
States, unless such lease--
(1) is consistent with, and entered into in
accordance with, the requirements of this section; or
(2) has been approved by the Secretary in accordance
with other Federal laws applicable to the leasing of
trust or restricted land.
(f) Lease Revenues.--The Secretary shall not be responsible
for the collection of, or accounting for, any lease revenues
accruing to any interests under a lease authorized by
subsection (e), so long as such interest is in owner-managed
status under the provisions of this section.
(g) Jurisdiction.--
(1) Jurisdiction unaffected by status.--The Indian
tribe with jurisdiction over an interest in trust or
restricted land that becomes owner-managed pursuant to
this section shall continue to have jurisdiction over
the interest to the same extent and in all respects
that such tribe had prior to the interest acquiring
owner-managed status.
(2) Persons using land.--Any person holding, leasing,
or otherwise using such interest in land shall be
considered to consent to the jurisdiction of the Indian
tribe referred to in paragraph (1), including such
tribe's laws and regulations, if any, relating to the
use, and any effects associated with the use, of the
interest.
(h) Continuation of Owner-Managed Status; Revocation.--
(1) In general.--Subject to the provisions of
paragraph (2), after the applications of the owners of
all of the trust or restricted interests in a parcel of
land have been approved by the Secretary pursuant to
subsection (d), each such interest shall continue in
owner-managed status under this section notwithstanding
any subsequent conveyance of the interest in trust or
restricted status to another person or the subsequent
descent of the interest in trust or restricted status
by testate or intestate succession to 1 or more heirs.
(2) Revocation.--Owner-managed status of an interest
may be revoked upon written request of the owners
(including the parents or legal guardians of minors or
incompetent owners) of all trust or restricted
interests in the parcel, submitted to the Secretary in
accordance with regulations adopted under subsection
(l). The revocation shall become effective as of the
date on which the last of all such requests has been
delivered to the Secretary.
(3) Effect of revocation.--Revocation of owner-
managed status under paragraph (2) shall not affect the
validity of any lease made in accordance with the
provisions of this section prior to the effective date
of the revocation, provided that, after such revocation
becomes effective, the Secretary shall be responsible
for the collection of, and accounting for, all future
lease revenues accruing to the trust or restricted
interests in the parcel from and after such effective
date.
(i) Defined Terms.--
(1) For purposes of subsection (d)(1), the term
``qualified applicant'' means--
(A) a person over the age of 18 who owns a
trust or restricted interest in a parcel of
land; and
(B) the parent or legal guardian of a minor
or incompetent person who owns a trust or
restricted interest in a parcel of land.
(2) For purposes of this section, the term ``owner-
managed status'' means, with respect to a trust or
restricted interest, that--
(A) the interest is a trust or restricted
interest in a parcel of land for which
applications covering all trust or restricted
interests in such parcel have been submitted to
and approved by the Secretary pursuant to
subsection (d);
(B) the interest may be leased without
approval of the Secretary pursuant to, and in a
manner that is consistent with, the
requirements of this section; and
(C) no revocation has occurred under
subsection (h)(2).
(j) Secretarial Approval of Other Transactions.--Except with
respect to the specific lease transaction described in
paragraph (1) of subsection (c), interests that acquire owner-
managed status under the provisions of this section shall
continue to be subject to all Federal laws requiring the
Secretary to approve transactions involving trust or restricted
land (including leases with terms of a duration in excess of 10
years) that would otherwise apply to such interests if the
interests had not acquired owner-managed status under this
section.
(k) Effect of Section.--Subject to subsections (c), (f), and
(h), nothing in this section diminishes or otherwise affects
any authority or responsibility of the Secretary with respect
to an interest in trust or restricted land.
SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHEREABOUTS OF INTEREST
OWNERS.
On at least an annual basis, the Secretary shall include
along with other regular reports to owners of trust or
restricted interests in land and individual Indian money
account owners a change of name and address form by means of
which the owner may confirm or update the owner's name and
address. The change of name and address form shall include a
section in which the owner may confirm and update the owner's
name and address.
----------
SECTION 5 OF THE ACT OF FEBRUARY 8, 1887
Sec. 5. That 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 in force in the
Sate or Territory where such lands are situate shall apply
thereto after patents therefor have been executed and
delivered, except as provided by the Indian Land Consolidation
Act or a tribal probate code approved under such Act and except
as herein otherwise provided; and the laws of the State of
Kansas regulating the descent and partition of real estate
shall, so far as practicable, apply to all lands in the Indian
Territory which may be allotted in severalty under the
provisions of this act:] Provided, That the rules of intestate
succession under the Indian Land Consolidation Act (25 U.S.C.
2201 et seq.) (including a tribal probate code approved under
that Act or regulations promulgated under that Act) shall apply
to that land for which patents have been executed and
delivered: 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 three per cent 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 General Land office, and afterward delivered, free of
charge, to the allottee entitled thereto. And if any religious
society or other organization is now occupying 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 hereby 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 hereafter in the employment of Indian
police, or any other employes 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.
Provided further, That whenever the Secretary of the Interior
shall be satisfied that any of the Indians of the Siletz Indian
Reservation, in the State of Oregon, fully capable of managing
their own business affairs, and being of the age of twenty-one
years or upward, shall, through inheritance or otherwise,
become the owner of more than eighty acres of land upon said
reservation, he shall cause patents to be issued to such Indian
or Indians for all of such lands over and above the eighty
acres thereof. Said patent or patents shall be issued for the
least valuable portions of said lands, and the same shall be
discharged of any trust and free of all charge, incumbrance, or
restriction whatsoever; and the Secretary of the Interior is
hereby authorized and directed to ascertain, as soon as shall
be practicable, whether any of said Indians of the Siletz
Reservation should receive patents conveying in fee lands to
them under the provisions of this Act.
----------
SECTION 4 OF THE ACT OF JUNE 18, 1934
Sec. 4. Except as herein provided, 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[, except as provided by the
Indian Land Consolidation Act, any other Indian person for whom
the Secretary of the Interior determines that the United States
may hold land in trust:] 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.