[Senate Report 108-264]
[From the U.S. Government Publishing Office]
Calendar No. 515
108th Congress Report
SENATE
2d Session 108-264
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AMENDING THE INDIAN LAND CONSOLIDATION ACT TO IMPROVE PROVISIONS
RELATING TO PROBATE OF TRUST AND RESTRICTED LAND, AND FOR OTHER
PURPOSES
_______
May 13, 2004.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1721]
The Committee on Indian Affairs, to which 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,
reports favorably thereon with an amendment in the nature of a
substitute and recommends that the bill, as amended, do pass.
Purpose
The principal purpose of S. 1721 is to amend the Indian
Land Consolidation Act, 25 U.S.C. 2201 et seq. (the ``ILCA''),
to address the ever-worsening administrative and economic
problems associated with the phenomenon of fractionated
ownership of Indian lands. To this end, the amendment in the
nature of a substitute (the ``Amendment'') would provide a new,
uniform Federal probate code applicable to such lands and to
Indian trust funds, as well as to make other mechanisms
available to the Department of Interior, Indian tribes and
individual owners of trust or restricted interests in land for
consolidating ownership of highly fractionated parcels of land.
Background
Federal policy towards Indian tribal governments has
vacillated between two extremes. Since the founding days of the
Republic, Federal policy has generally addressed tribal
governments directly through a government-to-government
relationship.\1\ At various times since 1789, however, the
Federal government has treated tribal governments with varying
degrees of apathy or antipathy, reflecting the relative
strength of the United States vis-a-vis the tribes. Near the
end of the Indian Wars of the 19th century came the allotment
period, beginning in 1887 and continuing through 1934, when
Congress enacted the Indian Reorganization Act, which formally
ended the policy of allotment. The allotment period and the
Federal policy associated with it is widely regarded as the
most concerted Federal assault on tribal authority and the
tribal land base. The cornerstone of this policy, the General
Allotment Act of 1887 \2\ (GAA) or the ``Dawes Act'' as it came
to be known, sought to end the communal nature of tribal
ownership of reservation land by allotting it in parcels of 40
to 160 acres to individual members of the tribes.
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\1\ This policy--for the United States to conduct its relations
with Indian tribes on a government-to-government basis--was strongly
re-affirmed by President Nixon in 1970: see ``Special Message to
Congress on Indian Affairs,'' July 8, 1970.
\2\ Act of February 8, 1887, 24 Stat. 388, codified at 25 U.S.C.
Sec. Sec. 331 et seq.
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Before the allotment policy, Indian tribes bargained with
the Federal government to cede vast portions of North America
in exchange for Federal recognition of permanent tribal
homelands or reservations. Through treaties, acts of Congress,
or executive orders, these reservations established a
geographic region set apart as areas where Indians, acting
though their tribal governments, could ``make their own laws
and be ruled by them.'' \3\
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\3\ Williams v. Lee, 358 U.S. 217, 220 (1959).
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Through allotment, the Federal government reduced
collective tribal land ownership by patenting parcels of
reservation land to individual Indians. In some cases, nearly
all of a tribe's land base was allotted in this manner. At
first, Indian allotments were subject to restraints on
alienation for a twenty-five year period. During that period,
tribal members were free to use their individual allotments,
but they could not sell or encumber these lands. Federal law
did not provide a means for the lease or even the testamentary
devise of these interests. The Dawes Act provided only that
these interests were to descend pursuant to state intestacy
rules. Under these rules, each of a decedent's heirs received
an equal undivided share of each interest in land owned by the
decedent. It was not until 1910 that Congress provided that
individuals could devise these interests.\4\ Because tribal
members were unfamiliar with European-derived notions of land
ownership and the complex systems of law and procedure that had
been developed to support the transfer of ownership of property
from one generation to the next through testamentary documents,
few Indians wrote wills, making explicit devise of such
interests an exception rather than the rule. Thus, in each
successive generation smaller and smaller interests descended
to the next generation. As these interests have grown smaller,
it is not uncommon for an interest holder's connection with the
land to become more abstract. As far back as 1934, Congressman
Howard made the following observation:
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\4\ Act of June 25, 1910, 36 Stat. 856, codified at 25 U.S.C. 373.
[O]ne heir may own minute fractional shares in 30 or
40 different allotments. The cost of leasing,
bookkeeping, and distributing the proceeds in many
cases far exceeds the total income. The Indians and the
Indian Service personnel are thus trapped in a
meaningless system of minute partition in which all
thought of the possible use of land to satisfy human
needs is lost in a mathematical haze of bookkeeping.\5\
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\5\ Representative Howard, 78 Cong.Rec. 11728 (1934), as quoted in
Hodel v. Irving, 481 U.S. 704, 708 (1987).
It is now seventy years after these remarks were made, and
still interests in trust and restricted lands continue to
descend by intestate succession and fractionate into ever-
smaller units of ownership.\6\ Even when partition in kind
(i.e., dividing up a single parcel of land into several
separate parcels, each going to a separate individual owner) is
a legal option, it is rarely a practical alternative,
especially where the ownership of a tract is held by dozens of
individual Indians. As the Bureau of Indian Affairs (``BIA'')
reported to the Senate Committee on Interior and Insular
Affairs: ``As most of the allotments were of not more than 160
acres of dry farming or grazing lands * * * it will readily be
seen that it was not feasible to partition the land in kind.''
\7\ The ownership of some tracts have become so fractionated
that while partition in kind may remain a theoretical solution,
it is a practical impossibility.
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\6\ See, for example, Indian Programs, Profile of Land Ownership at
12 Reservations, GAO, February 1992 (GAO/RCED-92-96BR). The Committee
has shown considerable interest in the issue of fractionation over the
past several years. In 1999, the Committee held a joint hearing with
the House Resources Committee on S. 1586 (S.Hrg. 106-282) and in 2000
passed extensive amendments to the ILCA, discussed below. See, also,
the Committee report accompanying S. 1586, Rep. 106-361, July 26, 2000.
In 108th Congress, the Committee held two hearings on S. 550, a bill
covering the same subjects as S. 1721, one on May 7 and another on
October 16, 2003.
\7\ Committee Print, 98th Congress 2nd Sess. Indian Heirship Land
and Survey of the 86th Congress, December 1, 1960, p. 3.
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Rather than characterizing the allotment policy as an
assault on tribal authority, its proponents billed allotment as
a means to ``elevate'' the status of each individual Indian, by
replacing communal property with private property and
supplanting tribal culture by assimilating individual Indians
into mainstream culture. Whether stated or not, however, none
of these objectives could be separated from allotment's
fundamental purpose of reducing, then eliminating, the tribes'
communal land-holdings, followed by the demise of tribal
authority.\8\ In fact, allotments were frequently accompanied
with declarations of ``surplus'' lands, which were then removed
from tribal ownership. By the 1930's, the combined effect of
the allotment of Indian lands and the direct government sale of
reservation lands, the majority of lands reserved to tribes in
19th century agreements with the United States had passed to
non-Indian ownership.
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\8\ Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1 (1995).
The majority of Indian lands passed from native
ownership under the allotment policy. Of the
approximately 156 million acres of Indian lands in
1881, less than 105 million remained by 1890, and 78
million by 1900. Indian land holdings were reduced from
138 million in 1887 to 48 million in 1934, a loss of 90
million acres. Of this, about 27 million acres, or two
thirds of the total land allotted, passed from Indian
allottees by sale between 1887 and 1934. An additional
60 million acres were either ceded outright or sold to
non-Indian homesteaders and corporations as ``surplus''
lands.\9\
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\9\ See F. Cohen, Handbook of Federal Indian Law (1982 ed.) p. 138.
Nevertheless, allotment was only one step towards
eliminating or reducing the extent of tribal authority. Even
when the allotment or diminishment of a reservation was
undertaken with the intent of eventually terminating a tribe's
authority over its land, the Supreme Court has been reluctant
to conclude that the mere loss of a tribe's title to the land
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automatically divests jurisdiction:
Although the Congresses that passed the surplus land
acts anticipated the imminent demise of the reservation
and, in fact, passed the acts partially to facilitate
the process, we have never been willing to extrapolate
from this expectation a specific congressional purpose
of diminishing reservations with the passage of every
surplus land act.\10\
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\10\Solem v. Bartlett, 465 U.S. 463, 469 (1984). Eight years before
Justice Marshall expressed this view for a unanimous Supreme Court,
then-Justice William Rehnquist reached a similar conclusion in Moe v.
Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976). In Moe,
the Court rejected the argument that the fee status of half of the land
on the reservation worked a de facto diminishment of the reservation.
Thus, although the General Allotment Act provided for state
jurisdiction over allottees after their lands were patented to them in
fee, this did not result in the end of the ``reservation-system.''
Justice Rehnquist reached this conclusion by relying on the Court's
recent decision in Mattz v. Arnett, 412 U.S. 481 (1973), and ``the many
complex intervening jurisdictional statutes directed at the reach of
state laws [in which] Congress by its more modern legislation has
evinced a clear intent to eschew such [a] ``checkerboard'' approach
within an existing Indian reservation[.]''
With the enactment of the Indian Reorganization Act of 1934
(IRA),\11\ Congress repudiated the allotment policy and
provided measures to reverse some of its most nefarious
results. As one Federal appellate court explained:
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\11\ Act of June 18, 1934, 48 Stat. 984, codified at 25 U.S.C.
Sec. Sec. 461 et seq.
One of the purposes of the [Indian] Reorganization
Act was to put an end to the allotment system which had
resulted in a serious diminution of [the] Indian land
base and which, through the process of intestate
succession, had resulted in many Indians holding
uneconomic fractional interests of the original
allotments.\12\
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\12\ Stevens v. Commissioner of the Internal Revenue Service, 452
F.2d 741 (9th Cir. 1971).
The IRA provided some tools to reverse the effects of the
allotment policy. First, the IRA formally ended the policy of
allotting tribal lands,\13\ indefinitely extended the trust
period on lands held in trust or restricted status,\14\ and
ended the widespread practice of issuing so-called ``forced-fee
patents.'' Second, it directed the Secretary to restore tribal
lands that the government had declared to be ``surplus''.\15\
The IRA also authorized the Secretary to acquire lands and
associated interests in lands.\16\
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\13\ 25 U.S.C. Sec. 461.
\14\ 25 U.S.C. Sec. 462. Indefinitely extending the trust period
prevented tracts of Indian lands from immediately passing out of trust.
It did not, however, prevent land from passing out of trust when it is
inherited by a non-Indian heir or when an allotment owner petitions the
Secretary to terminate the trust status of an allotment or remove the
Federal restrictions on alienation. With respect to Indian tribes
organized pursuant to the IRA, however, allotted lands descend in trust
or restricted status to the lineal descendants of a member of the
tribe.
\15\ 25 U.S.C. Sec. 463.
\16\ 25 U.S.C. Sec. 465.
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In the late 1940's and the 1950's, Federal Indian policy
changed yet again as Congress sought to terminate its
relationship with certain specific Indian tribes. During this
period, known as the ``termination era,'' the Federal
government made few efforts to address the effects of the GAA.
The government sought to find ways to eliminate Federal
responsibility to tribes and their members rather than address
the problems associated with former policies. On most
reservations, Indian owners continued to inherit smaller and
smaller shares of the undivided interests in each tract of
allotted land. Also, interests were not necessarily inherited
by residents, or even tribal members, of the reservation where
an allotment was located. As locating dozens of individuals
with undivided interests in a tract became increasingly
difficult, the Department of Interior simply relied on its
authority to lease unused lands on behalf of their owners while
discouraging Indian owners from becoming active in the leasing,
management, or development of their own lands.\17\
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\17\ The lease revenue from these lands is a source of the
persistent popular misconception that Indians receive some form of
Federal stipend, simply because of their status as Indians.
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In the 1960's, Congress embarked on yet another new course
of Indian policy, abandoning the termination policy and
beginning to lay the foundation for the policy of Indian
selfdetermination.\18\ Fractionated ownership of reservation
lands was seen as a problem that required immediate attention.
From 1959 through 1961, House and Senate Committees undertook a
significant effort to analyze the extent of land
fractionation.\19\ With the assistance of the Interior
Department, studies were commissioned to analyze the magnitude
of the fractionation problem. These studies revealed that at
least one-half of the 12 million allotted acres were held in
fractionated ownership, with one-fourth of these lands owned by
six or more heirs. Nevertheless, it was not until 1983 that
Congress enacted a statute to address the fractionated
ownership of Indian lands.
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\18\ See, F. Cohen, Handbook of Federal Indian Law (1982 ed.), pp.
180-88.
\19\ House Committee on Interior and Insular Affairs, Indian
Heirship Land Study, 86th Cong. 2nd Sess. (Com. Print 1961) and Senate
Committee on Interior and Insular Affairs, Indian Heirship Land Study,
86th Cong. 2nd Sess. (Com. Print 1960-1961). Additional hearings were
held in 1966, see Hearings on H.R. 11113 before the Subcommittee on
Indian Affairs of the House Committee on Interior and Insular Affairs,
98th Cong., 2nd Sess. (1966).
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The Indian Land Consolidation Act of 1983
In 1983, Congress enacted the Indian Land Consolidation
Act, P.L. 97-459 (25 U.S.C. 2201 et seq.) which addressed land
fractionation 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 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).
Although there was no disagreement about the need for
legislation to address fractionation of Indian lands, certain
provisions in the ILCA were immediately criticized. During the
98th Congress, the Senate Select Committee on Indian Affairs
held two hearings on the 1983 version of the
Act.''18a Most participants directed their criticism
at the escheat provision, section 207. In response to concerns
that section 207 violated the 5th Amendment restriction on
taking property without compensation, the Interior Department
responded: ``[A] s a legal point, section 207 does not take
property away from anybody who currently owns it. What it does
is set criteria for whether the property can be further
devised[.]''19a Accordingly, the amendments approved
by Congress in 1984 continued to prevent either the devise or
descent of many fractional interests.\20\ However, the
amendment sought to ``loosen[] the restrictive language of the
Act providing for the escheat of minor fractional interests in
trust allotted lands or restricted lands.'' \21\ It did this by
(1) permitting owners of escheatable interests to devise those
interests to other owners of a parcel; (2) allowing some
ineligible devisees to direct interests towards eligible
individuals; and (3) assessing an interest's value using a 5
year ``look-back'' at the revenue produced by an interest and
allowing a beneficiary to rebut the presumption that an
interest is without significant economic value . The 1984
amendments also provided that the tribal probate codes adopted
pursuant to the ILCA could take precedence over the escheat
provisions of section 207.
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\18a\ Hearing Before the Select Committee on Indian Affairs, United
States Senate, Amendments to the Indian Land Consolidation Act, S.
Hrng. 98-390 (July 26, 1983) and Hearing Before the Select Committee on
Indian Affairs, United States Senate, Amendments to the Indian Land
Consolidation Act of 1983, S. Hrng. 98-1054 (July 31, 1984). See also,
the Hearing Before the Select Committee on Indian Affairs, United
States Senate, S. 2480-S. 2663 (June 21, 1984) and the document
submitted for the record by Michael L. Lawson, Heirship: The Indian
Amoeba.
\19a\ S. Hrng. 98-390, p. 7. In fact, at the time Congress was
considering amendments to the ILCA, the constitutionality of the Act
was affirmed by a Federal district court in Irving v. Watt, Civ. 83-
5139 (D. S.D. Dec. 15, 1983), and was on appeal before the 8th Circuit.
The 1984 amendments were signed into law on October 30, 1984. The 8th
Circuit did not reverse the district court until March 29, 1985. The
Supreme Court affirmed the 8th Circuit on May 18, 1987 in Hodel v.
Irving, 481 U.S. 704 (1987).
\20\ P.L. 98-608, October 30, 1984, 99 Stat. 3171.
\21\ Sen. Rep. 98-632, p. 7.
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Judicial Review of the ILCA
The Supreme Court found the original version of the ILCA to
be unconstitutional in the case of Irving v. Clark, 758 F.2d
1260 (8th Cir. 1985), aff'd sub nom. Hodel v. Irving, 481 U.S.
704 (1987). Each member of the Court agreed that the ILCA could
not withstand constitutional scrutiny, but there was no
consensus on the appropriate basis for this result. In a
concurring opinion, Justice Stevens criticized both the
majority opinion and Congress, charging that the Congress
enacted section 207 of the ILCA ``abruptly with [a] lack of
explanation.'' He then criticized the majority opinion for the
``substantial gap [that] separates the claims that the Court
allows the[] appellees to advance from the rationale that the
Court ultimately finds persuasive.'' \22\
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\22\ Hodel at 719, Justices Stevens and White concurring.
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It is possible that each of Justice Stevens' criticisms can
be traced to Congress, even those directed at the majority
opinion. Justice Stevens noted a number of flaws in the
consideration, drafting, and application of the original
version of the Act: ``The House returned the bill to the
Senate, which accepted the House addition without hearings and
without any floor discussion of Sec. 207.'' In addition he
noted: ``The text of the Act also does not explain why Congress
omitted a grace period for consolidation of the fractional
interests that were to escheat to the tribe pursuant to
[section 207].''
Justice Stevens also pointed out an apparent inconsistency
between the Court's primary rationale for invalidating the
statute and the case before the Court. According to the Court:
``[The ILCA] effectively abolishes both descent and devise of
these property interests even when the passing of the property
to the heir might result in consolidation of property--as for
instance when the heir already owns another undivided interest
in the property.'' But the facts before the Court concerned
interests that would further fractionate, and none of the
plaintiffs owned pre-existing interests in the parcels they
were to inherit.
Like Justice Stevens, the Court's majority was concerned
with the way in which the ILCA was drafted. For example,
Congress assumed section 207 would only ``restrict the
descendancy of some of these fractional interests if these
interests are so small as to be financially meaningless.'' \23\
But the provision included in the ILCA relied exclusively on
past income generation to assess an interest's value. As the
Court noted, the ILCA's ``income generation test'' fell short
of culling valuable from de minimis interests, and it is
possible that a more accurate mechanism for determining the
value of the 2% interests may have produced a different result
before the Court.
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\23\ House Rep. No. 97-908 (Sept. 30, 1982), p. 11.
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Indeed, the Court was willing to concede that a number of
factors weighed in favor of the ILCA. The Court noted that
Congress enacted the law ``pursuant to its broad authority to
regulate the descent and devise of Indian trust land [and]* * *
as a means of ameliorating, over time, the extreme
fractionation of certain Indian lands.'' Also, the Court noted
that it was unlikely that the owners of the interest could
point to ``investment backed expectations'' in property that
had been held in trust for a century, and that had been
``overwhelmingly acquired by gift, descent, or devise.'' The
Court also noted an ``average reciprocity of advantage''
weighed ``weakly'' in favor of the statute. As the Court
explained:
All members do not own escheatable interests, nor do
all owners belong to the Tribe. Nevertheless, there is
substantial overlap between the two groups. The owners
of escheatable interests often benefit from the escheat
of others' fractional interests. Moreover, the whole
benefit gained is greater than the sum of the burdens
imposed since consolidated lands are more productive
than fractionated lands.\24\
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\24\ Hodel at 715-6.
The absence of a more discerning test for determining the
value of each interest created several difficult choices for
the Irving Court (all of those choices, of course, obviated
when the Court ruled ILCA section 207 unconstitutional). First,
the Court would have to either devise a judicial test to
replace ILCA's ``income generation test'' or somehow articulate
limits on the use of the ILCA's income generation test. Second,
even if the Court could fashion a method for determining each
fractional interest's value, it would then have to set the
standard for which interests were ``financially meaningless.''
Third, if the Court could resolve that difficult question, it
would find itself in the classical ``slippery slope'' dilemma
of incremental reasoning: that is, if the Court were to decide
that interests worth $50 or less could escheat
constitutionally, could it then provide a principled basis for
deciding that interests worth, say, $51 could not? It is not
surprising that the Court did not decide the case in a fashion
that would have required it to struggle with these other
issues, each of which fall within the province of the
legislative rather than the judicial branch, especially in the
field of Indian law.
When the original version of the ILCA reached the Court in
1987, Sec. 207 was analyzed by the Court from three very
different perspectives. To three Justices, the statute violated
the 5th Amendment because it was insufficiently solicitous of
Indian rights.\30\ Four members of the Court found a 5th
Amendment taking because the ``character of the Government
regulation'' was ``extraordinary,'' raising concerns that
upholding the statute would expand the government's authority
over property rights.\31\ Finally, the statute was improperly
constructed to please two members of the Court who may have
been satisfied if the provision had simply conditioned
retention of the interest upon ``performance of a modest
statutory duty * * * within a reasonable period of time.'' \32\
Although the Irving decision may be fairly characterized as an
invitation to Congress to ``go back to the drawing board'' and
address the problem of fractionation in a constitutionally
acceptable manner, unfortunately the Supreme Court expressed no
view on whether Congress's efforts to do so in the 1984
amendments to the ILCA resolved any of the Court's concerns.
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\30\ Hodel at 719, Justices Brennan, Marshall, and Blackmun
concurring.
\31\ Hodel, at 716. The Court observed that by enacting section
207, Congress was ``acting pursuant to its broad authority to regulate
the descent and devise of Indian trust lands'' (citing Jefferson v.
Fink, 247 U.S. 288 (1918)). Irving, at 712. The Court concluded that,
although the forced escheat mechanism in section 207 brings a benefit
that ``is greater than the sum of the burdens imposed since
consolidated lands are more productive than fractionated lands,'' the
``extraordinary'' regulation of section 207 ``amounts to virtually the
abrogation of the right to pass on * * * the small undivided interest *
* * to one's heirs'' and ``effectively abolishes both descent and
devise of these property interests even when the passing of the
property might result in consolidation. * * *'' Id., at 716-17
(emphasis added).
\32\ Id. at 719, Justices Stevens and White concurring.
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In 1984, three years before the Irving decision and five
months before the Eighth Circuit's decision in Irving v. Clark,
Congress amended the escheat provision in ILCA by providing for
a 5-year ``look-back'' period for determining value instead of
one year (with a rebuttable presumption that the income would
continue) and allowing a devise of the interest to co-owners in
the same parcel. It is not surprising that the 98th Congress
assumed that it could constitutionally limit the devise or
descent of some interests in trust lands in this manner. In
fact, the Irving decision itself was neither anticipated \33\
nor embraced by commentators, who viewed the case as something
of an aberration.\34\ Also, Congress appears to have assumed--
accurately--that the courts would be sympathetic with the
statute's objective.\35\ The Irving Court conceded: ``The
fractionation problem on Indian reservations is extraordinary
and may call for dramatic action to encourage consolidation.''
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\33\ See, Kornstein, Inheritance: A Constitutional Right? 36
Rutgers L. Rev. 741 (1984).
\34\ See, Chester, Essay: Is the Right to Devise Property
Constitutionally Protected?--The Strange Case of Hodel v. Irving, 24
Sw. U. L. Rev. 1195 (1995). Although Professor Chester characterizes
Irving as ``strange'' and questions whether, for a number of reasons,
it would be sufficiently robust to have a major impact on the law of
inheritance in the long run, he acknowledges its potential as a
significant change in the Court's jurisprudence in the area and
cautions that ``what happens to this case as precedent over the next
few years should be watched carefully.'' Id., at 1213.
\35\ In light of the Supreme Court's decision in Northern Cheyenne
Tribe v. Hollowbreast, 425 U.S. 649 (1976), Congress assumed that it
had wide latitude to regulate the devise and descent of Indian property
before it vested in a new owner. In Hollowbreast, the Supreme Court
addressed mineral interests to allotments on the Northern Cheyenne
Indian Reservation. A 1926 statute conferred the subsurface mineral
estates to each allotment owner after fifty years. Before fifty years
elapsed, a new law reserved the mineral rights for the benefit of the
tribe. The Court upheld the statute and rejected the allottee claims
that this constituted a taking of their vested property rights.
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Ten years after it refused to express an opinion on the
1984 amendments to the ILCA, the Supreme Court considered
whether these modest amendments rehabilitated the ILCA in
Babbitt v. Youpee, 519 U.S. 234 (1997). With Justice White no
longer on the Court, only Justice Stevens wrote that the
amended statute could be constitutionally applied to Mr.
Youpee's estate. The remainder of the Court found the ILCA as
amended to be unconstitutional. Specifically, the Supreme Court
considered the following amendments to the ILCA enacted in
1984:
[As] amended section 207 differs from the original in
three respects: it looks back five years instead of one
to determine the income produced from a small interest,
and creates a rebuttable presumption that this income
stream will continue; it permits devise of otherwise
escheatable interests to persons who already own an
interest in the same parcel; and it authorizes tribes
to develop their own codes governing the disposition of
fractional interests.\36\
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\36\ Babbitt v. Youpee, 519 U.S. 234 (1997).
The Court noted that the Act still relied exclusively on
the income generated by a parcel to assess its value, an
approach to valuation that could allow valuable interests to
escheat if they were not producing income. Most important,
although the modified statute allowed an owner to devise his
interest, he could only devise it to another ``owner of an
undivided interest in such parcel of trust or restricted
land.'' This did not go far enough to satisfy the standard
established in Irving. As the Court explained: ``Congress''
creation of an ever-so-slight class of individuals equipped to
receive fractional interests by devise [i.e. existing interest
holders] does not suffice, under a fair reading of Irving, to
rehabilitate the measure.'' Quoting from the 9th Circuit Court
of Appeal's observation, Justice Ginsburg pointed out that the
class of current owners ``is unlikely to contain any [of the
testator's] lineal descendants.'' \37\ Finally, the United
States did not assert that the establishment of tribal code
provisions was relevant in Youpee. In light of Irving, the
result in Youpee is not surprising. In fact, several years
before Youpee even reached the Court, the Department of
Interior was soliciting input from tribes and individual owners
of trust and restricted land on how to address land
fractionation issues.\38\
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\37\ Youpee at 733, quoting Youpee v. Babbitt, 67 F.3d 194, 199-200
(9th Cir. 1995).
\38\ Statement of Assistant Secretary for Indian Affairs Kevin
Gover, Joint Hearing Before the United States Senate Committee on
Indian Affairs and the House of Representatives Committee on Resources,
Indian Land Consolidation Amendments; And to Permit Leasing of Oil and
Gas Rights on Navajo Allotted Lands, Nov. 4, 1999, S. Hrng. 282, p. 83.
(Describing a consultation process on land consolidation begun in
1994.)
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ILCA and Treaty Rights
A discussion of the principles drawn from the Supreme
Court's opinions on the ILCA would not be complete without
addressing the concurring opinion in Irving authored by Justice
Brennan, and joined by Justices Marshall and Blackmun. In their
concurring opinion, these Justices aligned themselves with the
decision of the 8th Circuit Court of Appeals. While the Court
of Appeals ruled that a 5th Amendment taking had occurred, they
based this conclusion on the nature of the property at
issue.\39\
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\39\ By contrast, the Supreme Court's majority in Irving found a
taking based on the nature of the government's action. According to the
Court, ``the character of the Government regulation here is
extraordinary[,] * * * [a] virtual abrogation of the right to pass on a
certain type of property * * * to one's heirs,'' a right which had
``been part of the Anglo-American legal system since feudal times.''
Id., at 716. Of course, allotments did not exist in feudal Europe, and
with limited exceptions, these interests did not even exist in the
United States for more than a century after its founding. Although
looking to European antecedents as a means of understanding the rights
attaching to interests in allotted Indian lands might be, therefore,
fraught with hazards, the full measure of an individual's interest in
an allotment cannot be ascertained without some reference to concepts
of Anglo-American property for at least three reasons. First, the very
notion of establishing allotments and the language employed to define
these property interests originated in Western, rather than indigenous,
culture. Second, these allotments were the result of negotiations
between an Indian tribe and the United States. Therefore, Anglo-
American notions of property were the intellectual and cultural
backdrop for one (but only one) of the two parties that negotiated the
relevant agreement. In light of the longstanding principle that
treaties are to be interpreted in favor of Indian tribes and their
members, it follows a fortiorari that the holders of these rights
possess whatever beneficial attributes may be gleaned from the Anglo-
American culture that chose to create and characterize them.
---------------------------------------------------------------------------
The crux of Justice Brennan's three sentence concurring
opinion consists of the following statement: ``largely for the
reasons discussed by the [8th Circuit] Court of Appeals, I am
of the view that the unique negotiations giving rise to the
property rights and expectations at issue here make this case
an unusual one.'' Specifically, the 8th Circuit decision
referred to the treaty negotiations that led to the creation of
the allotments at issue and concluded that the allottees
bargained with the United States and ``obtain[ed] patents to
protect allotments from future governmental interference,''
including right to devise their interest. Pointing to the
Supreme Court's decision in Choate v. Trapp, 224 U.S. 665
(1912), the 8th Circuit explained that treaty provisions can
give rise to individual rights that may not be altered without
just compensation. In Choate, the original allottees enjoyed an
immunity from taxation that could not be altered by Congress
without payment of just compensation.
In the 8th Circuit Court of Appeals, the Irving plaintiffs
claimed that the ILCA violated two interests protected by
Choate: a promise that interests in allotted land would
continue to descend through family lines without governmental
interference and that state law would be used to determine the
inheritance of allotments. The 8th Circuit interpreted treaty
provisions as a Federal guarantee that ``lands allotted to
individual Indians could not be taken from [the allottees or]
their children [i.e. heirs or devisees].'' \40\ Thus, the panel
of judges agreed that the ILCA ran afoul of Choate when it
prevented either the devise or descent of an interest in
allotted land. However, the 8th Circuit explicitly rejected the
idea that heirs under state law enjoyed any vested rights under
the treaty. The would-be heirs argued that the treaty
guaranteed the exclusive use of state law of intestacy to
determine the descent of interests in trust land. As the 8th
Circuit pointed out, this theory would require courts to find a
taking if the law authorized the testamentary devise of
allotted land.\41\ Such a result would hinder Congressional
authority ``to alter and condition rights that have not yet
vested in individual Indians[].'' It would also elevate the
rights of heirs above those of a living allotment owner.
``[T]he existence of any vested rights in an allottee's heirs
would mean that an Indian to whom land was allotted would have
no power to dispose of that property by will.'' \42\
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\40\ Irving v. Clark, 758 F.2d 1260, 1264, aff'd on different
grounds sub. nom. Hodel v. Irving, 481 U.S. 704 (1987).
\41\ In fact, some of the plaintiffs in Irving could only assert
claims under devise based on Federal laws enacted after the treaty.
\42\ Irving v. Clark, 758 F.2d 1260, 1265 (1985).
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Although the Supreme Court decided Irving on different
grounds, the continuing vitality of Choate is obvious; treaties
give rise to interests and rights which may not be eliminated
without the payment of compensation. Even though the 8th
Circuit was solicitous of this principle, it would not accept
an invitation to require the Federal government to compensate
every would-be heir who was prevented from inheriting because
of an adjustment in the rules governing the descent and devise
of allotments. The majority in Irving v. Hodel agreed that
Congress's ``broad authority to adjust the rules governing the
descent and devise'' of this property\43\ would permit
aggressive changes in the rules of devise and descent without
effecting a compensable taking. According to the Irving Court,
Congress could even go so far as ``abolishing the descent of
such interests by rules of intestacy, thereby forcing the
owners to formally designate an heir to prevent escheat to the
Tribe.'' Id., at 717-18.
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\43\ Id., at 717.
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The Indian Land Consolidation Act Amendments of 2000 (P.L. 106-462)
In 2000, the Congress adopted further amendments to ILCA--
P.L. 106-462, the Indian Land Consolidation Act Amendments of
2000 (the ``2000 Amendments''). Section 102 of the 2000
Amendments set forth the five-fold policy of the United States
to--
(1) prevent further fractionation of Indian trust
allotments;
(2) consolidate fractional interests and their
ownership into usable parcels;
(3) consolidate those interests in a manner that
enhances tribal sovereignty;
(4) promote tribal self-sufficiency and self-
determination; and
(5) reverse the effects of the allotment policy on
Indian tribes.
The 2000 Amendments brought a number of significant changes
to ILCA that were calculated to implement the various aspects
of this declared Federal policy. These changes include
extensive revisions of ILCA section 206 (25 U.S.C. 2205)
relating to tribal probate codes; a new uniform Indian probate
code with provisions for the testamentary disposition and
intestate succession of interests in trust and restricted
Indian lands (ILCA section 207(a) and (b), 25 U.S.C. 2206(a)
and (b)); a new pilot program for the voluntary acquisition of
fractional interests as well as provisions for administering
the interests acquired under that program (ILCA sections 213
and 214, 25 U.S.C. 2212 and 2213); and provisions to facilitate
land consolidating transactions between individual Indians and
their tribes (ILCA section 217, 25 U.S.C. 2216). Thus, the 2000
Amendments brought an assortment of different mechanisms to
bear on the problem on Indian land fractionation, which had
continued unabated since the 1984 amendments to ILCA.
The probate code in the 2000 Amendments (see ILCA section
207, 25 U.S.C. 2206) was also intended to have, over time, a
consolidating effect on fractionated parcels of Indian land.
The code, which has not yet gone into effect,\44\ establishes a
scheme of intestate succession that has a much narrower range
of potential individual heirs than is found in typical state
codes of intestate succession, and makes the Indian tribe the
``heir of last resort'' if there are no eligible individual
heirs. Although the testamentary provisions of the probate code
in the 2000 Amendments (ILCA section 207(a)) provide landowners
of trust and restricted land with some latitude in terms of
selecting from eligible devisees of their land, allowing the
devise of a trust or restricted interest to any Indian person
or to the Indian tribe, it still has significant limitations: a
devise of an interest to a non-Indian (which might include the
testator's own non-Indian children) creates only a life estate
in the devisee, with the remainder going to heirs of the 1st or
2nd degree if those heirs happen to be ``Indian'' as that term
is defined in ILCA section 202(2) (25 U.S.C. 2201(2)).\45\ If
the testator's heirs of the 1st or 2nd degree are non-Indian,
they inherit the remainder interest only if they already own an
undivided interest in the same parcel of land, failing which
the remainder interest passes to the tribe.
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\44\ Pursuant to ILCA section 207(g)(5), the probate provisions of
the 2000 amendments do not affect the estate of any decedent who dies
prior to the day which is 365 days after the date on which the
Secretary makes a certification under section 207(g)(4). That
certification has not yet been made.
\45\ The 2000 Amendments would allow the devise of a trust or
restricted interest to a testator's non-Indian heir of the 1st or 2nd
degree or non-Indian collateral heir of the 1st or 2nd degree only if
the testator has no Indian spouse, Indian lineal descendent, Indian
heir of the 1st or 2nd degree or Indian collateral heir of the 1st or
2nd degree. Therefore, if a testator happened to have, for instance, an
Indian uncle or and Indian first cousin, he could not devise the
interest to his own children if they were not Indian.
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Accordingly, 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 the ILCA. Not surprisingly, in the
hearings in May and October of 2003 on S. 550, a bill that is,
in essence, an earlier version of S. 1721, the Committee
received statements from Indian landowners and tribal
representatives expressing great concern over the limitations
placed on landowners by the intestate and testamentary
provisions of the 2000 Amendments, and indicating that some
landowners have submitted, or were prepared to submit,
applications for fee patents of their interests in order to
avoid the limitations of the Federal probate code and assure
their ability to devise the property to their children or other
family members.\46\ This unfortunate result was never intended
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 protest.\47\ Therefore, in addition to
addressing the alarming rate of fractionation of Indian lands,
the Amendment is intended to address the concerns of Indian
landowners and their advocates over the impact that the probate
code of the 2000 Amendments would have if it were to be
certified.
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\46\ See, written testimony of Ben O'Neal, a trust land owner and
member of the Business Council of the Eastern Shoshone Tribe of the
Wind River Reservation, submitted for the record of the Committee's
hearing on May 7, 2003, and written testimony of D. Fred Matt,
Chairman, Confederated Tribes of the Salish and Kootenai Tribes of the
Flathead Reservation, submitted for the record of the Committee's
hearing on October 15, 2003.
\47\ See, 25 U.S.C. 462 (extending the trust and restricted period)
and 478-1 (making section 462 applicable to all tribes and all trust
and restricted Indian lands). See, also, Sampson v. Andrus, 483 F.
Supp. 240, 242 (D.C. S.D. 1980).
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The Need for Legislation
Several decades after adopting a policy of breaking up
Indian reservations through allotments and other means,
Congress ended and formally repudiated this policy through the
Indian Reorganization Act of 1934. Congress also sought to
reverse the effects of the allotment era, although its efforts
in this regard have achieved only limited success. While
testimony before the Committee's hearing on S. 550 in May of
2003 indicates that the Department's fractional interest
acquisition pilot program in the BIA's Midwest Regional Office
had succeeded, as of that time, in purchasing over 40,000
fractional interests located on 3 reservations--and thereby
forever avoiding any further fractionation of those interests
over the course of future generations--the Department's witness
also testified that the rate of fractionation of other
interests has been so great that the same number of outstanding
interests exist today on these 3 reservations as when the
program first began 4 years ago.\48\ It is clear, then, that
more aggressive measures are necessary in order to (1) slow the
rate of fractionation; (2) consolidate fractionated interests;
and (3) facilitate and improve the implementation of the
Congressional policy of acquiring and consolidating fractional
interests embodied and expressed in the 2000 Amendments.
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\48\ See, Testimony of Wayne Nordwall, Director, Western Region,
Bureau of Indian Affairs, submitted for the record at the Committee's
hearing on S. 550 held on May 7, 2003. Mr. Nordwall also testified at
the Committee's hearing on October 15, 2003, and his written testimony
submitted there indicates that the rate of fractionation may have even
outstripped the Department's total acquisitions. This excerpt from his
testimony submitted at the latter hearing, describing the same highly
fractionated tract that was at issue in Hodel v. Irving, supra, also
illustrates both the magnitude and the financial impact of the
fractionation problem:
Today, this tract produces $2000 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.
The administrative cost of handing this tract in 2003 are estimated by
the BIA at $42,800.
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Like the probate code in the 2000 amendments, the intestacy
provisions of the Amendment's uniform probate code that would
replace\49\ ILCA section 207(a) are intended to slow the rate
of fractionation of individual Indian trust and restricted land
over the course of time. The general rules of intestate
succession in the Amendment would limit (1) the number of
successive classes of potential individual heirs standing to
inherit an interest before it would pass to the Indian tribe,
and also (2) the eligibility for membership within each such
class. The classes of individual heirs in the general rule
(i.e., section 207(a)(2)(B)) are children and, by
representation, grandchildren; great-grandchildren; parents;
and, finally, siblings. To be eligible to inherit within these
classes, a child, grandchild, great grandchild, etc., must
qualify as an ``eligible heir,'' a term that the Amendment adds
to ILCA's definition section, 25 U.S.C. 2201. The term
``eligible heirs'' is defined to mean, for purposes of ILCA
section 207 (25 U.S.C. 2206), any of a decedent's children,
grandchildren, great grandchildren, parents, full siblings, and
halfsiblings by blood who are (1) ``Indian'' as defined by the
Amendment,\50\ (2) lineal descendants within two degrees of
consanguinity of an Indian, or (3) owners of a trust or
restricted interest in a parcel of land for purposes of
inheriting another such. interest in the same parcel.\51\ These
classes of individuals eligible to inherit by intestate
succession under the Amendment are limited in comparison to
those of typical state codes, which tend to reach out to remote
collateral family relations to find an heir before property
escheats to the State.\52\ See, for examples, A.R.S. Sec. 14-
2103 (Arizona), MT.ST. Sec. 72-2-113 (Montana), and Cal. Prob.
Code App. Sec. Sec. 6401 and 6402 (California).
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\49\ As with the probate code in the 2000 amendments, the probate
code in the Amendment would not affect the estate of any person who
dies before the date that is one year after the Secretary certifies
compliance with the notification requirements of section 8(a) of the
Amendment.
\50\ The Amendment defines Indian so as to include, inter alia,
``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 Indian Probate Reform Act of 2004) of a trust or
restricted interest in land * * *.''
\51\ The term ``eligible heirs'' determines who may inherit under
the probate code by intestate succession. The term is not used to limit
who may receive an interest in trust or restricted land or trust
personalty by testamentary devise under the probate code.
\52\ Use of the limiting term ``eligible heir'' in section 207(a)
somewhat increases the probability that the tribe, as the ``heir of
last resort'' under the Amendment's probate code, will inherit the
interest where the decedent dies without a will, because only those
individual family members within each successive statutory class of
heirs who meet the definition of ``eligible heirs'' may inherit the
trust or restricted interest. A child, grandchild, etc., of the
decedent who does not qualify as an ``eligible heir'' cannot inherit a
trust or restricted interest by intestate succession. On the other
hand, the term is defined broadly enough to allow close family members
of many decedents to inherit trust or restricted interests through
intestate succession--and by maintaining the trust or restricted status
of the interests, keep the interests within the reach of a probate code
that, unlike state probate codes, will have a consolidating effect over
the course of time, and keep those interests available for purchase by
co-heirs or co-interest owners at probate under the amendments to ILCA
section 207 or by the Secretary under the fractional interest
acquisition program under ILCA section 213. See footnote 59.
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In addition, the uniform probate code in the Amendment has
a special ``single heir rule'' \53\ applicable to small
interests that are not passing under a valid will--i.e., 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.\54\ The single heir rule
is intended to place a ``floor'' on fractionation insofar as it
is the consequence of intestate succession and to provide
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 to just three--children, grandchildren, and great
grandchildren--and only one person in each successive class,
the oldest eligible heir, may inherit the interest. If there
are no eligible heirs in any of the three classes, the interest
passes to the Indian tribe with jurisdiction over the
interest.\55\ It is important to note, however, that the
Amendment 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.
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\53\ If enacted, the single heir rule would become ILCA section
207(a)(2)(D).
\54\ The interest to which this percentage applies is the interest
held by the decedent at the time of his or her death and is to be
determined based on ``the Secretary's records at the time of the
heirship determination.'' This wording is intended to address problems
of ownership calculation that might frequently arise in tracts that
have hundreds, and in some instances thousands, of different owners.
For example: if, unknown to a decedent's surviving family members,
another co-owner of the parcel who was related to the decedent had
predeceased her, and the decedent was an eligible heir of this other
co-owner, it is possible that the Secretary's records may show that the
decedent owned less than 5% of the parcel whereas in reality she owned
slightly more than 5%. In such a case, a subsequent determination that
the decedent may have owned somewhat more than the Secretary's records
reflected at the time of the heirship determination would not undo the
application of the single heir rule. Similar language is included in
other provisions of S. 1721 that require ownership calculations--the
partition section (new section 205(d)(2)(E)) and the purchase option at
probate (new section 207(p)(5))--for similar reasons.
\55\ The rule would allow the Indian tribe with jurisdiction over
the interest to adopt a different rule of intestate succession
applicable to interests of less than 5%, provided that the tribal rule
does not allow intestate inheritance of such interests by more than one
person. The tribe's rule should be set forth in a tribal ordinance,
legislation or other appropriate enactment of the governing body of the
tribe.
---------------------------------------------------------------------------
While the intestate provisions of the Amendment are
designed to limit the range of eligible heirs, the testamentary
provisions of S. 1721 (i.e., the bill's amendment to ILCA
section 207(b)) are written to provide owners of trust and
restricted interests in land and trust personalty with a very
wide range of testamentary options. Specifically, the landowner
may devise such interests in trust 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, and 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 (including the testator's non-
Indian lineal descendants).
As the Court states in Irving:
[E]ncouraging the consolidation of Indian lands is a
public purpose of high order. The fractionation problem
on Indian reservations is extraordinary and may call
for dramatic action to encourage consolidation.
Id., at 712.
The Amendment's limitations on inheritance by intestate
succession, especially in the context of the single heir rule,
are indeed examples of ``dramatic action to encourage
consolidation.'' \56\ On the other hand, owners of trust or
restricted interests in land may devise this property to lineal
descendants and many other persons who are eligible devisees of
the property. Therefore, the Amendment's probate code would
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
Amendment's probate code, would inevitably lead to some
fractionation. At the same time, because landowners would have
real testamentary choices under the Amendment, the
constitutionality issues enunciated in Irving and Babbitt v.
Youpee, and cases such as Phillips v. Washington Legal
Foundation, 524 U.S. 156 (1998), wherein the Rehnquist Court
relies on Irving in a non-Indian setting, have been addressed.
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\56\ However, the intestate provisions of the Amendment do not go
nearly as far as the majority of the Court in Irving suggests that
Congress might go in order to resolve the fractionation problem--i.e.,
with the Amendment, Congress would not be ``abolishing descent of such
interest by rules of intestacy'' and ``forcing the owners to formally
designate an heir to prevent escheat to the Tribe.'' Irving, at 718.
The Committee recognizes, then, that there are ways in which
Amendment's probate code might have provided an even more ``dramatic''
solution to fractionation than it does and still have been
constitutional. However, the probate code is intended to apply to trust
and restricted lands in many different areas and reservations across
the United States that are characterized by great diversity in local
circumstances, and the most aggressive uniform Indian probate code that
the constitution would allow would not be appropriate in many parts of
Indian country.
---------------------------------------------------------------------------
The Amendment includes additional mechanisms, beyond the
probate code, that are intended to facilitate the consolidation
of fractional interests. For example, section 4 of the
Amendment amends 25 U.S.C. 2204 (ILCA section 205) by creating
a process for the partition by sale of certain highly
fractionated Indian lands. This provision would allow the
Indian owners of undivided interests in tracts of land that
meet the definition of ``highly fractionated'' \57\ to request
that the Secretary partition the property by sale.\58\ Another
example of a ``consolidating mechanism'' in the Amendment is
the amendment to ILCA section 207 that would allow the coowners
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 the estate. Under this provision, the heirs'
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 passing without a will.
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\57\ The definition section of ILCA (section 202) is amended to
include the term ``parcel of highly fractionated Indian land,'' which
is defined as any parcel that has either (1) 50 to 99 coowners, none of
whom holds an undivided trust or restricted interest in the parcel that
is greater than 10 percent of entire undivided ownership, or (2) 100 or
more co-owners of undivided trust or restricted interests.
\58\ The partition provision includes a requirement that the party
requesting the partition be responsible for the costs of mailing and
publishing notice to co-owners and pay the estimated costs, or submit a
bond for that amount, ``up front.'' There are two primary purposes for
this requirement. First, the partition contemplated by this subsection
will result in the forced sale of fractionated interests held by a
great number of individuals, and it is appropriate that the process be
initiated only by persons who have a genuine desire to have their
property partitioned. Furthermore, although each administrative
partition action should result in a significant collective benefit to
Indian landowners and a benefit to the United States--consolidation of
ownership of a parcel of land from dozens, hundreds or, in some cases,
thousands of co-owners down to a single owner, and with that, a
dramatic decline in the costs incurred by the Department in managing
and tracking fractional interests--each such action will nevertheless
demand considerable time, effort and resources of the Department to
complete. Therefore, the second purpose behind the requirement that the
party requesting the partition be responsible for mailing and
publication costs is to control the number of requests for partition to
which the Secretary must respond and to assure that the process is not
easily abused or invoked for reasons other than for the consolidation
of interests (for example, to simply have the property appraised). The
Committee is nevertheless mindful that, in a great number of cases, the
cost of mailing and publication will exceed the proportionate share of
the proceeds that any one owner of a fractional interest stands to
receive from a sale of the property, so that there may be little
incentive for any such co-owner to initiate the process (with the
exception of co-owners who initiate the process to bid for and acquire
full ownership of the land). Accordingly, the Secretary is given the
express authority and discretion to waive this payment and bonding
requirement, in whole or in part, in any case where doing so would
further the purposes of the Act.
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As noted above, the Committee received testimony from the
Department indicating that the fractional interest acquisition
program has achieved some success but that, since the
initiation of that program, the rate of fractionation has been
equal to or greater than the rate at which the Department has
been able to purchase fractional interest from landowners. The
Amendment attempts to address this problem with amendments to
ILCA that are intended to (1) improve and facilitate the
implementation and execution of the fractional interest
acquisition program (see, for example, the amendments to ILCA
section 213 (25 U.S.C. 2212 in section 6(a)(5) of the
Amendment); (2) put a ``floor'' on fractionation with the
``single heir rule'' applicable to intestate succession of
small interests (see discussion above); and (3) keep fractional
interests under a Federal probate code that slows the rate of
fractionation and promotes consolidation, as opposed to state
probate codes which tend to promote fractionation.\59\
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\59\ Allowing fractional trust or restricted interests to pass into
fee status and to become subject to state laws of intestate succession
(and frequently the laws of multiple States, whenever decedents die
possessed of trust or restricted interests in reservations situated in
several States), means that those interests will likely continue to
fractionate and thereby further complicate and enlarge the Department's
difficulties in managing, and consolidating the ownership of, highly
fractionated tracts of Indian land. On the other hand, by keeping these
interests in trust or restricted status, the Amendment would facilitate
the consolidation of fractional interests by allowing co-heirs, co-
owners, the tribe with jurisdiction over the interest or the Secretary
on behalf of the tribe to exercise the ``purchase option at probate,''
or to allow heirs to enter into consolidation agreements during probate
proceedings. In short, maintaining the trust or restricted status of
these fractional interests operates to further the principal goals of
the ILCA and the Indian policies it embodies: consolidation of
fractional interests and ownership of those interests into usable
parcels of land and reversing the effects of the allotment policy on
Indian tribes.
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Legislative History
S. 1721 was introduced by Senator Campbell on October 14,
2003, and was referred to the Committee on Indian Affairs. On
November 12, 2003, at the request of Senator Campbell, Senator
Thomas was added as a co-sponsor of S. 1721. Although the
Committee on Indian Affairs did not hold a hearing on S. 1721
itself, the Committee held two hearings on a predecessor bill
to S. 1721, to wit, S. 550, on May 7 and October 15, 2003.
Committee Recommendation and Tabulation of Vote
In an open business session on January 28, 2004, the
Committee on Indian Affairs, by voice vote, adopted an
amendment in the nature of a substitute offered by Senator
Campbell and ordered the bill reported to the Senate. Before
the bill was delivered to the Clerk of the Senate, the Senate
Committee on Indian Affairs, in an open business session on
April 21, 2004, approved the amendment in the nature of a
substitute by voice vote and ordered the bill, as amended,
reported favorably to the Senate.
Section-by-Section Analysis
Section 1. Short title
This section sets forth the short title of the bill:
``American Indian Probate Reform Act of 2004.''
Section 2. Findings
This section sets forth the findings in support of the
provisions of the bill, including the General Allotment Act's
provisions directing that Indian allotments would descend in
accordance with the State law of intestate succession based on
the location of the allotment, and how this Congressional
reliance on State law has contributed to fractionation and,
where lands are located in more than 1 state, made estate
planning unnecessarily difficult. The findings section also
states the advantages of a single uniform probate code,
including a reduction in fractionation, facilitation of efforts
to provide estate planning and inter-tribal efforts to develop
tribal probate codes, and that a uniform probate code should
operate to further the policy of the United States as set forth
in the 2000 Amendments.
Section 3. Indian probate reform
Section 3 of the Amendment amends ILCA by replacing
existing subsections (a) and (b) of section 207 (25 U.S.C. 2206
(a) and (b)) of the ILCA with a new uniform Indian probate code
that includes provisions for intestate succession (i.e., where
there is no valid will) of interests in trust and restricted
lands and trust funds, as well as for the testamentary devise
(i.e., by will) of such interests and funds. Section 3 also
amends and subsection (c) relating to joint tenancy by creating
a rule of construction for devises of trust or restricted
interests in land to multiple devisees.
Generally, the uniform Federal Indian probate code
(amendments to subsections (a) and (b) of ILCA section 207)
would apply to the inheritance of trust or restricted land and
trust funds unless a tribal probate code applicable to a
particular reservation has been approved by the Secretary of
Interior pursuant to section 206 of ILCA (25 U.S.C. 2205). The
Amendment also includes a provision that makes the uniform
Indian probate code and other provisions of the ILCA
inapplicable to specific reservations or trust and restricted
lands that are governed by special Federal laws that expressly
identify those reservations or lands.
Where the owner of trust or restricted land dies without a
will, the probate code's general rule of intestate succession
provides that interests in trust or restricted lands and trust
funds will pass to ``eligible heirs'' within the following
successive classes of heirs: the decedent's surviving children
or, by ``right of representation,'' grandchildren (meaning a
grandchild only shares what his or her deceased parent would
have received had the parent outlived the decedent), then the
surviving great-grandchildren, then the surviving parents, then
surviving siblings--with members of each succeeding class
inheriting only if the interest does not pass to one or more
members of the previous classes. If an interests does not pass
to some member of any of the forgoing classes, then the Indian
tribe with jurisdiction over the interest inherits it as the
heir of last resort.\60\
---------------------------------------------------------------------------
\60\ The Amendment also provides for the contingency of there being
no such tribe to inherit the property, by allowing for division of an
interest among co-owners of trust or restricted interests in the same
parcel and, in the absence of such co-owners, sale of the interest and
use of the proceeds under the ILCA's fractional interest acquisition
program.
---------------------------------------------------------------------------
The probate code includes a special rule applicable to the
inheritance of small fractional interests (specifically, any
fractional interest that is less than 5% of the total undivided
ownership of the parcel of which it is a part) passing without
a will--the ``single heir rule.'' These small interests may be
inherited by only one person: the oldest eligible heir among
the decedent's surviving children, and if there are no eligible
heirs among the children, then the oldest eligible heir among
the decedent's surviving grandchildren, and if there are no
such heirs among the surviving grandchildren, then the oldest
eligible heir among the decedent's surviving great-
grandchildren, and if there are no eligible heirs among the
great-grandchildren, then the Indian tribe.\61\ However, the
single heir rule does not apply to an interest passing under a
valid will, and the code authorizes the tribe to adopt a
different rule of succession for these small fractional
interests, but only if the tribal rule provides for inheritance
of the interest by one person, to prevent further
fractionation.
---------------------------------------------------------------------------
\61\ Both the general rule of succession and the single heir rule
provide for division of the interest equally among all co-owners of
trust or restricted interests in the same parcel where there are no
individual heirs and no Indian tribe to inherit the interest, and for
the sale of the interest and application of proceeds to the fractional
interest acquisition program in the unlikely event that there are no
individual heirs, no tribe and no co-owners.
---------------------------------------------------------------------------
The probate code also authorizes an owner of trust or
restricted land to ``devise'' (to pass property on by executing
a will) the land in trust or restricted status to the
testator's lineal descendants, any person who owns a pre-
existing trust or restricted interest in the same parcel of
land, the Indian tribe with jurisdiction over the interest, or
any Indian. The owner may also give a life-estate to any
person, and may devise the interest in non-trust status to
persons who are not Indian.
The Amendment also sets forth sets out rules for
interpretation of wills under the probate code, rules
preventing ``heirship by killing,'' and general rules governing
probate that (1) address pretermitted spouses and children,
divorce, after-born heirs, advancements of trust or restricted
personalty during lifetime, multiple lines of inheritance, and
(2) give the Secretary authority to approve renunciations of
inherited interests by heirs and consolidation agreements
within the context of probate proceedings. The Amendment also
provides a rule of construction for a term used throughout the
probate code (``applicable federal law'') and a provision that
makes the Act inapplicable to lands and allotments that are
already the subject of special legislation expressly applicable
to specific Indian reservations or to the allotted lands of
specific tribes.
Section 4. Partition of highly fractionated indian lands
This section amends ILCA section 205 by adding a new
subsection authorizing any co-owner of an interest in a parcel
of trust or restricted land that is highly fractionated to
request the Secretary to commence the partition by sale of the
parcel.\62\ The Secretary is authorized to proceed if the
parcel meets the definition of ``highly fractionated,'' that
is, if it has at least 50-99 co-owners, no one of whom owns an
undivided interest that is greater than 10% of the whole, or by
100 or more co-owners. The requesting party is responsible for
payment of the costs of providing notice and publication,
although the Secretary may waive this requirement if doing so
would further the policies of the ILCA.\63\
---------------------------------------------------------------------------
\62\ By its terms, the partition process will not be immediately
available. Subsection (d)(2) states that no application for partition
``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) American Indian Probate Reform Act of
2004.''
\63\ See footnote 58.
---------------------------------------------------------------------------
If a parcel is determined by the Secretary to meet this
test, the land may be partitioned by sale--by auction or sealed
bids--for not less than its fair market value, subject to
certain consent requirements (for example, where the tribe owns
an interest in the parcel, its consent is required, or where a
co-owner has been residing or operating a business on the
property). Generally, only parties eligible to bid at the
partition sale would be the Indian tribe, members of the tribe,
descendants of the original allotee and co-owners of trust
interests in the property who are members of an Indian tribe
other than the tribe with jurisdiction over the interest.\64\
The Amendment would allow the owner of the largest interest in
the tract to match the highest bid if that interest is greater
than 20% of the whole, and, subject to certain conditions, it
would also allow the tribe of jurisdiction to match the highest
bid if the high bidder is not a member of that tribe. The
Secretary is authorized to adopt any regulations that may be
necessary to implement the partition provision. Any such
regulations must include provisions for giving notice of
partition sales to eligible bidders.
---------------------------------------------------------------------------
\64\ For land in the State of California not within a tribe's
reservation or subject to a tribe's jurisdiction, the only eligible
purchasers would be persons who are members or eligible to be members
of a tribe and owners of trust or restricted interests in the parcel
being partitioned.
---------------------------------------------------------------------------
Section 5. Owner managed interests
This section would add a new section to ILCA that would
authorize the owners of trust or restricted lands to enter into
surfaces leases of their lands for a term of not more than 10
years, for agricultural purposes only. Before any interest
would acquire ``owner managed'' status under the section, all
of the owners of trust or restricted interests in the same
parcel must agree upon the status--so that no parcel would be
partially owner-managed and partially managed by the Secretary.
Once a parcel acquires owner-managed status, it would remain
owner-managed despite transfer or conveyance of trust or
restricted interests to new owners, until such time that all
owners of such interests have submitted applications to the
Secretary to revoke the status. The Secretary is not
responsible for the collection of or accounting for revenues
under a lease authorized by this section so long as the
interests are in owner-managed status. However, if owner-
managed status is revoked, the Secretary must collect and
account for all future revenues from and after the date of
revocation, but revocation of the owner-managed status does not
affect the validity of a lease that was made in accordance with
the section prior to the date of revocation.
Section 6. Additional amendments
This section of the substitute amendment to S. 1721 amends
various sections of ILCA, in both technical and substantive
ways. The following is a brief description of the more
substantive amendments that S. 1721 makes to ILCA.
(a) Purchase option at probate
This new provision would allow the heirs of undivided trust
or restricted interests (and surviving spouses who are
receiving a life estate) to voluntarily sell their interests,
for not less than fair market value, to ``eligible'' purchasers
during probate proceedings. Eligible purchasers include co-
heirs of the same property in the estate, co-owners of trust or
restricted interests in the same parcel of land involved in the
estate, and the Indian tribe with jurisdiction over the
interest or the Secretary on behalf of that tribe. The sale
would require the heirs' consent, unless the interest passing
was less than 5% of the parcel of which it was a part and the
interest is passing without a will, and if more than one
eligible purchaser wishes to purchase the interest, the
Secretary must sell it by auction to the highest bidder among
the eligible purchasers. If the interest is less than a 5%
interest and is passing without a will, any of the eligible
purchasers could force the sale at probate--unless the heir was
residing on the parcel at the time of the decedent's death, in
which case the heir's consent would still be required. As with
the ``single heir rule,'' any owner of trust property may avoid
this involuntary sale of small interests simply by writing a
will. The provisions of this subsection would not apply to any
interest that is subject to a consolidation agreement
authorized under ILCA section 207(e) or by the new provision
that the Amendment would add as ILCA section 207(k)(9).
(b) Tribal probate code limitations
This section disallows approval of a tribal probate code
under ILCA section 206 if the code prohibits devises to lineal
descendants of the original allottee or to an Indian who is not
a member of the tribe with jurisdiction over the interest,
unless the tribal code, in the context of those devises, also
provides for renunciation of the interest to an eligible
devisee, the opportunity for a devisee who is a surviving
spouse or lineal descendent of a testator to reserve a life
estate, and payment of fair market value as provided under ILCA
section 206(c)(2). It also places a ``family farm'' exception
on the right of a tribe to purchase an interest devised to a
non-Indian person under 25 U.S.C. section 2205(c), where the
devisee is a member of the decedent's family (lineal descendant
of the decedent or landowner or of the grandparent of the
decedent or landowner, a spouse of the decedent or landowner,
or the spouse of the decedent's or landowner's lineal
descendant) and the devisee agrees that the tribe will have the
opportunity to acquire the interest if the interest is offered
for sale to a non-family member.
(c) Fractional Interest Acquisition Program and Secretarial
liens on acquired interests
The substitute amendment to S.1721 would make several
revisions to ILCA sections 213 and 214 (25 U.S.C. 2212 and
2213) relating to the fractional interest acquisition program,
designed to improve the manner in which it is carried out. One
change is that the 3-year limitation placed on the program is
eliminated. Several other provisions of this section are
designed to facilitate the administration of the acquisition
program, inter alia, by allowing the Secretary to make program
acquisitions in the context of probate proceedings (i.e.,
allowing the Secretary to exercise the ``purchase option at
probate'' on behalf of the tribe). The Amendment would also
authorize to be appropriated $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 for purposes of carrying out the
acquisition program under ILCA section 213 (25 U.S.C. 2212).
The Amendment also gives the Secretary discretion to remove
of Secretarial liens in certain circumstances, and facilitates
the financing of repayment obligations of individual Indians
who purchase reacquired interests under the program from the
Secretary.
This section of the Amendment also includes a provision
that would give the tribe with jurisdiction a right of first
refusal to purchase any interest that is the subject of an
application to terminate trust status or remove restrictions by
matching any offer being paid for the interest or, if there is
no such offer, paying fair market value for the interest. There
is an exception for conveyances of interests that are part of a
``family farm'' being conveyed to a ``family member'' as
defined in section 206(c)(2)(A)(iv) (see discussion in (b),
above, relating to tribal probate codes) if the conveyance
requires that the tribe with jurisdiction over the interest be
afforded to purchase match the offered price or pay fair market
value where no price is offered.
(d) Establishing fair market value
Section 216 (25 U.S.C. 2215), which allows the Secretary to
develop a system for establishing fair market value of various
types of lands and improvements to for purposes of the
fractional interest acquisition program, is amended by having
it govern amounts to be offered under the other provisions of
the ILCA as well.
(e) Acquisition fund
The Amendment makes technical changes to the wording of
ILCA section 216 (25 U.S.C. 2215), and requires that all
proceeds from leases, permits and sales derived from interests
acquired under section 213 (25 U.S.C. 2212) or paid by Indian
landowners under that section be used for the acquisition of
undivided interests. It also authorizes the Secretary to use
the revenues to acquire undivided interests in accordance with
section 205 (25 U.S.C. 2204).
(f) Trust and restricted land transactions
The Amendment amends ILCA section 217 (25 U.S.C. 2216)
which authorizes certain sales, exchanges and gift deeds for no
or nominal consideration between certain Indian family members
and between an Indian and the Indian tribe provided that the
grantor is first given an estimate of value of the interest.
The grantor may waive the requirement of an estimate if the
conveyance is to certain family members. The Amendment would
also allow the written waiver in the context of transfers to
the tribe with jurisdiction over the interest as well as to co-
owners if the grantor's interest represents 5 percent or less
of the parcel.
Section 217 is also amended in subsection (e) by making
certain the names, and mailing addresses of the owners of any
interest in trust or restricted lands available to designated
persons upon written request.
Finally, section 217 is amended by requiring the Secretary,
before approving an application to terminate trust status of,
or remove restrictions from, a parcel of trust or restricted
land, to provide the tribe with jurisdiction over the property
with the right to match any offer to purchase the parcel in the
application or to pay fair market value where there is no
purchase price offered. This section provides an exception for
family farms, where the conveyance is to a member of the family
of the landowner.
(g) Approvals of leases, rights-of-way, and sales of
natural resources
ILCA section 219 (25 U.S.C. 2218) is amended, first, in
subsection (b)(1)(A) by changing the consent percentage for
leases and agreements relating to trust or restricted land
owned by 5 or fewer persons from 100 down to 90 percent, and,
second, by adding a section that says nothing in the Act
supersedes, repeals or modifies any general or specific statute
authorizing the grant or approval of any land use transaction
involving fractional interests in trust or restricted land.
(h) Definitions
The substitute amendment would amend the definitions of
several terms and it would add new defined terms, including
``Indian,'' ``trust or restricted lands'' and ``trust or
restricted interest in land,'' ``parcel of highly fractionated
Indian land,'' ``land,'' ``person'' and ``individual,''
``eligible heirs'' and ``without regard to waste.'' See, also,
discussion above regarding the defined terms ``Indian,''
``eligible heirs'' and ``highly fractionated Indian lands.''
(i) Revisions to the acts of February 8, 1887 (25 U.S.C.
348) and June 18, 1934 (25 U.S.C. 464)
The provisions of two acts, section 5 of the Indian General
Allotment Act (25 U.S.C. 348, the ``GAA'') and section 4 of the
Indian Reorganization Act (25 U.S.C. 464, the ``IRA''),
respectively, would be amended so as to conform them to changes
to the ILCA. Section 5 of the GAA is amended to reflect that
the Amendment's probate code, or an applicable tribal probate
code, will apply to the land for which trust patents have been
issued, and similar conforming amendments are made to section 4
of the IRA.
(j) Estate planning and probate code development
The Amendment would amend ILCA section 207(f)(1) and (2)
(25 U.S.C. 2206(f)(1) and (2)) by including language that the
Secretary's (1) activities under this subsection shall be in
accordance with any applicable tribal probate code or land
consolidation plan, and (2) estate planning assistance program
should dramatically increase the use of wills and reduce the
number and complexity of estate passing by intestate
succession, and by adding a new provision authorizing grants to
non-profit and other organizations to provide estate planning
services to Indians and probate code development assistance to
Indian tribes and Indian organizations.
(k) Notification to landowners
The Amendment adds a new subsection to ILCA section 207
requiring the Secretary to provide certain ownership
information relating to a parcel of trust or restricted land
upon written request by an owner of an interest in the parcel.
(l) Pilot program for the management of trust assets of
Indian families and relatives
This section of the Amendment also includes revisions to
ILCA section 207 that would authorize the Secretary to
establish, with certain limitations, a pilot project whereby
private and family trusts or other entities would facilitate
and assist in the management of trust assets owned by Indian
family members and relatives in furtherance of the purposes of
the ILCA. The total number of entities participating in the
pilot project cannot exceed thirty, and no such entity may
engage in activities under the project until implementing
regulations have been adopted. The subsection includes
provisions that any transactions involving the lease, use,
mortgage or other disposition of trust assets administered by
an entity under the pilot program requires approval by the
Secretary in accordance with applicable Federal law and that
authorize the Secretary to make payments of income or revenues
derived from such assets directly to a participating entity in
accordance with regulations adopted pursuant to the subsection.
(m) Giving notice to and locating heirs
Section 6 of the Amendment includes two new subsections to
section 207 of ILCA pertaining to the manner of searching for
heirs and dealing with heirs whose whereabouts have been
unknown for extended periods. The bill provides that if the
Secretary determines during the probate hearing that a missing
heir has had no contact with the Department for a 6-year period
preceding the hearing, that heir may be presumed to have
predeceased the decedent for purposes of descent and
distribution of trust or restricted land and trust personalty
within that decedent's estate.
Section 7. Annual notice and filing; current whereabouts of interest
owners
This section adds a new section to ILCA requiring the
Secretary to send landowners written notice, at least annually,
along with other regular reports to owners of trust or
restricted lands or individual Indian money accounts, a change
of address form to confirm or update the owner's name and
address.
Section 8. Notice of amendments and effective date
This section requires the Secretary to give notice to
Indian landowners of the amendments made by this Act informing
the landowners of estate planning options and transactions that
may be used to consolidate ownership of land, and, after doing
so, to certify that the notice requirements have been met--in
the same manner required under the 2000 amendments to ILCA--and
to thereafter certify that notice had been given. This section,
also like the 2000 amendments, states that the amendments would
not apply to the estate of any individual who dies before the
date that is 1 year after the date of the Secretary's
certification.
Section 9. ``Severability''
This section sets forth a ``severability clause''
applicable to the Act.
Cost and Budgetary Consideration
The cost estimate for S. 1721, as amended, as calculated by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 13, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 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 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 interest 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 bill 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 bill. 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 authorizations in S.
1271.
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 these 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 bill would impose a private-sector mandate on
individuals who would otherwise inherit interests in Indian
lands under current law. The bill 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 bill would fall below the annual
threshold established by UMRA for private-sector mandates ($120
million in 2004, adjusted annually for inflation). The bill
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 Authorization Level..................... 0 2 2 2 2 2
Estimated Outlays................................. 0 2 2 2 2 2
Grants and Loans to Indians to purchase partitions at
auction:
Estimated Authorization Level..................... 0 * * * * *
Estimated Outlays................................. 0 * * * * *
Total Proposed Changes:
Enacted Authorization Level........................... 0 77 79 147 147 147
Estimated Outlays..................................... 0 25 61 99 130 142
Total Spending Under S. 1721:
Estimated Authorization Level......................... 22 77 97 147 147 147
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 ownership on 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 in each of 2007 through
2010 for the Secretary to acquire undivided interests in Indian
trust and restricted lands from willing sellers at fair market
value and to collect any revenue generated from the leasing of
natural resources on that interest. 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 bill 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, the Department of the Interior may
spend--subject to appropriation--any receipts from natural
resource 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, so 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 the 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 bill would
impose a private-sector mandate on individuals who would
otherwise inherit interests in Indian trust or restricted lands
under current law. The bill 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 bill would fall below the annual threshold
established by UMRA for private-sector mandates ($120 million
in 2004, adjusted annually for inflation). The bill 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 bill would impose a private-sector
mandate 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 bill also would allow the Secretary of the Interior to
partition certain parcels of Indian lands with a large number
of owners 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 bill would impose
a mandate on those interest owners not consenting to the
partition. CBO estimates that the cost 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.
Estimate prepared by: Federal Costs: Lanette J. Walker;
Impact on State, Local, and Tribal Governments: Marjorie
Miller; and Impact on the Private Sector: Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
amendment in the nature of a substitute to S. 1721 will create
only de minimis regulatory or paperwork burdens.
Executive Communications
The Committee has received a letter dated May 5, 2004, from
the Department of Interior addressing the amendment in the
nature of a substitute approved by the Committee on April 21,
2004. That letter, which generally supports the amendment, is
set forth below:
Department of the Interior,
Office of the Secretary,
Washington, DC, May 5, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of the Interior on S. 1721, the ``American Indian
Probate Reform Act of 2004'', which was amended in the nature
of a substitute by the Committee on April 21, 2004. The
Department would like to thank the Congress for its continued
efforts to address this extremely important issue. S. 1721 is a
positive step forward and will provide the Department valuable
tools to help us stop the exponential growth of fractionated
interests. The Department generally supports S. 1721.
As Secretary Norton stated in her letter to you and Senator
Inouye on April 6, 2004, the Department is committed to
achieving a just resolution of the issues related to Indian
Trust and to the four part plan you envisioned for trust
reform. The plan includes swiftly enacting legal reforms to
Indian probate, commencing efforts to reconsolidate the Indian
land base, and returning Indian lands to tribal ownership. The
Department is in complete agreement that legislation to provide
for probate reform and tools to strengthen the Department's
land consolidation effort is needed. As we have stated on
numerous occasions, this may be our last opportunity to reform
probate before the current system collapses.
However, previously we had serious concerns with the
version of S. 1721 that was moving forward. It was our view
that modifications to that version were necessary in order to
make improvements to the current law. Any legislation in this
area must provide meaningful reform before the Administration
can support it. Since the last markup in January, we have
worked extensively with your staff on this issue and are
pleased to see that many important changes are now reflected in
the bill.
Taken as a whole, S. 1721 would provide the Department
valuable tools for attacking the growing fractionation problem
facing Indian Country. It is a positive and meaningful step
forward. We look forward to working with the Congress as the
legislation moves forward on some remaining issues we have with
the bill, such as (1) enabling the Department to address the
aftermath of the Supreme Court's decision in Babbit v. Youpee
(519 U.S. 234 (1997)), the decision of the District of South
Dakota decision in DuMarce v. Norton, and other situations
involving statutes under which highly fractionated intestate
interests automatically escheat to the tribe; (2) ensuring that
language creating a new loan program meets Federal credit
standards; (3) clarifying that the government does not retain
any liability for owner managed interests; and (4) ensuring
that any waiver of sovereign immunity is consistent with the
appropriate type of relief for partition actions.
Again, the Department would like to thank the Congress for
its continued effort to address this extremely important issue.
The Office of Management and Budget has advised that there
is no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
David L. Bernhardt,
Director, Office of Congressional and
Legislative Affairs and Counselor to the Secretary.
Changes in Existing Law
In Compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
enactment of S. 1721 will result in the following changes in 25
U.S.C. 2201, et seq., and 25 U.S.C. Sec. Sec. 348 and 464, with
existing language which is to be deleted in black brackets and
the new language to be added in italic:
25 U.S.C. 2201
Sec. 2201. Definitions
For the purpose of this chapter--
* * * * * * *
(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 this chapter;] ``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 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; 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 descendants within 2 degrees of
consanguinity of an Indian; or
(C) owners of a trust of 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.
25 U.S.C. 2204
Sec. 2204. Purchase of trust or restricted or controlled lands at no
less than fair market value; requisite conditions
(a) In General.--Subject to subsection (b), any Indian
tribe may purchase at no less than the fair market value part
or all of the interests in any tract of trust or restricted
land within that tribe's reservation or otherwise subject to
that tribe's jurisdiction with the consent of the owners of
such interests. The tribe may purchase all of the interests in
such tract with the consent of the owners of [over 50 per
centum of the undivided interests] undivided interests equal to
at least 50 percent of the undivided interest in such tract.
Interests owned by an Indian tribe in a tract may be included
in the computation of the percentage of ownership of the
undivided interests in that tract for purposes of determining
whether the consent requirement under the preceding sentence
has been met.
* * * * * * *
(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 the 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 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)(C)(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) 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) Any purchaser of a parcel of
land under this paragraph 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 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
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).
25 U.S.C. 2205
Sec. 2205. Tribal probate codes; acquisitions of fractional interests
by tribes
(a) Tribal Probate Codes.--
(1) In general.--
* * * * * * *
[(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 allotee; 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 a spouse or lineal descendant of
the 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) of this title] section
207(b)(2)(A)(ii) of this title, 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 person 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) prevents or
limits the ability of an owner of land
to which that clause applies to
mortgage the land or limits 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.
(B) Reservation of life estate.--A non-Indian
devisee described in [subparagraph (A) or a
non-Indian devisee described in Section
2206(a)(6)(B) of this title] paragraph (1), may
retain a life estate in the interest involved,
including a life estate to the revenue produced
from the interest. The amount of any payment
required under paragraph (1) shall be reduced
to reflect the value of any life estate
reserved by a non-Indian devisee under this
subparagraph.
25 U.S.C. 2206
Sec. 2206. 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.
[(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 46
[(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.]
(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
one 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 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 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
decendent'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 the 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 descent 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
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 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
Reform 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 items (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 predeceased 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 personalty 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) 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
jointenancy 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) 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
[(B)] (D) assist Indian landowners in
accessing information pursuant to section
217(e).
[(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.]
(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; and
(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).
[(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).]
(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
descendants, such descendants 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) Heirship 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
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 the 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 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
private and family trust 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 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;
(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 (or the time and place for
submitting sealed bids), 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 personally
if the interest sold would have otherwise passed to the
heir or devisee in trust or restricted status.
25 U.S.C. 2212
[Sec. 2212. 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.--]
(2) Authority of secretary.--The Secretary shall
submit--
(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] 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.
(3) Interests held in trust.--Subject to section 214,
the Secretary shall immediately hold interests acquired
under this Act in trust for the recognized tribal
government that exercises jurisdiction over the land
involved.
(b) Requirements.--In implementing subsection (a), the
Secretary--
* * * * * * *
[(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 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 a 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 USC 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.
25 U.S.C. 2213
Sec. 2213. Administration of acquired fractional interests, disposition
of proceeds
* * * * * * *
[(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.--In accordance with
regulations to be promulgated by the Secretary, and in
consultation with tribal governments and other entities
described in section 213(b)(3), the Secretary shall
periodically remove liens referred to in paragraph (1)
from interests in land acquired by the Secretary.
25 U.S.C. 2214
Sec. 2214. Establishing fair market value
For purposes of this chapter, the Secretary may develop a
system of establishing the fair market value of various types
of lands and improvements. Such a system may include
determinations of fair market value based on appropriate
geographic units as determined by the Secretary. Such system
may govern the amounts offered for the purchase of interests in
trust or restricted lands under [section 2212 of this title]
this Act.
25 U.S.C. 2215
Sec. 2215. Acquisition fund
(a) In General.--The Secretary shall establish an
Acquisition Fund to--
(1) disburse appropriations authorized to accomplish
the purposes of section 213; and
[(2) collect all revenues received from the lease,
permit, or sale of resources from interests in trust or
restricted lands transferred to Indian tribes by the
Secretary under section 213 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.
25 U.S.C. 2216
Sec. 2216. Trust and restricted land transactions
* * * * * * *
(b) Sales, Exchanges and Gift Deeds Between Indians and
Between Indians and Indian Tribes.--
(1) In General.--
* * * * * * *
[(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 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).
25 U.S.C. 2218
Sec. 2218. Approval of leases, rights-of-way, and sales of natural
resources
* * * * * * *
(b) Applicable Percentage.--
(1) Percentage interest.--The applicable percentage
referred to in subsection (a)(1) of this section 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.
25 U.S.C. 2220
Sec. 2220. 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 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.
25 U.S.C. 2221
Sec. 2221. 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.
25 U.S.C. 348
Sec. 348. Patents to be held in trust; descent and partition
Upon the approval of the allotments provided for in this
Act by the Secretary of the Interior, he shall cause patents to
issue therefor in the name of the allottees, which patents
shall be of the legal effect, and declare that the United
States does and will hold the land thus allotted, for the
period of twenty-five years, in trust for the sole use and
benefit of the Indian to whom such allotment shall have been
made, or, in case of his decease, of his heirs according to the
laws of the State or Territory where such land is located, and
that at the expiration of said period the United States will
convey the same by patent to said Indian, or his heirs as
aforesaid, in fee, discharged of said trust and free of all
charge or incumbrance whatsoever: Provided, That the President
of the United States may in any case in his discretion extend
the period. And if any conveyance shall be made of the lands
set apart and allotted as herein provided, or any contract made
touching the same, before the expiration of the time above
mentioned, such conveyance or contract shall be absolutely null
and void: [Provided, That the law of descent in force in the
State 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 (25 U.S.C.A. Sec. 2201 et seq.) or a tribal probate code
approved under such Act and except as herein otherwise
provided:] 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:
* * * * * * *
25 U.S.C. 464
Sec. 464. Transfer of restricted Indian lands or shares in assets of
Indian tribes or corporation; exchange of lands
Except as provided herein, 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
(25 U.S.C.A. Sec. 2201 et seq.), any other Indian person for
whom the Secretary of Interior determines that the United
States may hold land in trust:] in accordance with the Indian
Land Consolidation Act (25 U.S.C. 2201 et seq.) (including a
tribal probate code approved under that Act or regulations
promulgated under that Act):
* * * * * * *