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pdfPUBLIC LAW 108–374—OCT. 27, 2004
118 STAT. 1773
Public Law 108–374
108th Congress
An Act
To amend the Indian Land Consolidation Act to improve provisions relating to
probate of trust and restricted land, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘American Indian Probate Reform
Act of 2004’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) the Act of February 8, 1887 (commonly known as the
‘‘Indian General Allotment Act’’) (25 U.S.C. 331 et seq.), which
authorized the allotment of Indian reservations, did not permit
Indian allotment owners to provide for the testamentary disposition of the land that was allotted to them;
(2) that Act provided that allotments would descend
according to State law of intestate succession based on the
location of the allotment;
(3) the reliance of the Federal Government on the State
law of intestate succession with respect to the descent of allotments has resulted in numerous problems affecting Indian
tribes, members of Indian tribes, and the Federal Government,
including—
(A) the increasingly fractionated ownership of trust
and restricted land as that land is inherited by successive
generations of owners as tenants in common;
(B) the application of different rules of intestate succession to each interest of a decedent in or to trust or restricted
land if that land is located within the boundaries of more
than 1 State, which application—
(i) makes probate planning unnecessarily difficult;
and
(ii) impedes efforts to provide probate planning
assistance or advice;
(C) the absence of a uniform general probate code
for trust and restricted land, which makes it difficult for
Indian tribes to work cooperatively to develop tribal probate
codes; and
(D) the failure of Federal law to address or provide
for many of the essential elements of general probate law,
either directly or by reference, which—
(i) is unfair to the owners of trust and restricted
land (and heirs and devisees of owners); and
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Oct. 27, 2004
[S. 1721]
American Indian
Probate Reform
Act of 2004.
15 USC 2201
note.
15 USC 2201
note.
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118 STAT. 1774
PUBLIC LAW 108–374—OCT. 27, 2004
(ii) makes probate planning more difficult;
(4) a uniform Federal probate code would likely—
(A) reduce the number of fractionated interests in trust
or restricted land;
(B) facilitate efforts to provide probate planning assistance and advice and create incentives for owners of trust
and restricted land to engage in estate planning;
(C) facilitate intertribal efforts to produce tribal probate codes in accordance with section 206 of the Indian
Land Consolidation Act (25 U.S.C. 2205); and
(D) provide essential elements of general probate law
that are not applicable on the date of enactment of this
Act to interests in trust or restricted land; and
(5) the provisions of a uniform Federal probate code and
other forth in this Act should operate to further the policy
of the United States as stated in the Indian Land Consolidated
Act Amendments of 2000, Public Law 106–462, 102, November
7, 2000, 114 Stat. 1992.
SEC. 3. INDIAN PROBATE REFORM.
(a) NONTESTAMENTARY DISPOSITION.—Section 207 of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by striking
subsection (a) and inserting the following:
‘‘(a) NONTESTAMENTARY DISPOSITION.—
‘‘(1) RULES OF DESCENT.—Subject to any applicable Federal
law relating to the devise or descent of trust or restricted
property, any trust or restricted interest in land or interest
in trust personalty that is not disposed of by a valid will—
‘‘(A) shall descend according to an applicable tribal
probate code approved in accordance with section 206; or
‘‘(B) in the case of a trust or restricted interest in
land or interest in trust personalty to which a tribal probate
code does not apply, shall descend in accordance with—
‘‘(i) paragraphs (2) through (5); and
‘‘(ii) other applicable Federal law.
‘‘(2) RULES GOVERNING DESCENT OF ESTATE.—
‘‘(A) SURVIVING SPOUSE.—If there is a surviving spouse
of the decedent, such spouse shall receive trust and
restricted land and trust personalty in the estate as follows:
‘‘(i) If the decedent is survived by 1 or more eligible
heirs described in subparagraph (B) (i), (ii), (iii), or
(iv), the surviving spouse shall receive 1⁄3 of the trust
personalty of the decedent and a life estate without
regard to waste in the interests in trust or restricted
lands of the decedent.
‘‘(ii) If there are no eligible heirs described in
subparagraph (B) (i), (ii), (iii), or (iv), the surviving
spouse shall receive all of the trust personalty of the
decedent and a life estate without regard to waste
in the trust or restricted lands of the decedent.
‘‘(iii) The remainder shall pass as set forth in
subparagraph (B).
‘‘(iv) Trust personalty passing to a surviving spouse
under the provisions of this subparagraph shall be
maintained by the Secretary in an account as trust
personalty, but only if such spouse is Indian.
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118 STAT. 1775
‘‘(B) INDIVIDUAL AND TRIBAL HEIRS.—Where there is
no surviving spouse of the decedent, or there is a remainder
interest pursuant to subparagraph (A), the trust or
restricted estate or such remainder shall, subject to subparagraphs (A) and (D), pass as follows:
‘‘(i) To those of the decedent’s children who are
eligible heirs (or if 1 or more of such children do
not survive the decedent, the children of any such
deceased child who are eligible heirs, by right of representation, but only if such children of the deceased
child survive the decedent) in equal shares.
‘‘(ii) If the property does not pass under clause
(i), to those of the decedent’s surviving great-grandchildren who are eligible heirs, in equal shares.
‘‘(iii) If the property does not pass under clause
(i) or (ii), to the decedent’s surviving parent who is
an eligible heir, and if both parents survive the
decedent and are both eligible heirs, to both parents
in equal shares.
‘‘(iv) If the property does not pass under clause
(i), (ii), or (iii), to those of the decedent’s surviving
siblings who are eligible heirs, in equal shares.
‘‘(v) If the property does not pass under clause
(i), (ii), (iii), or (iv), to the Indian tribe with jurisdiction
over the interests in trust or restricted lands;
except that notwithstanding clause (v), an Indian co-owner
(including the Indian tribe referred to in clause (v)) of
a parcel of trust or restricted land may acquire an interest
that would otherwise descend under that clause by paying
into the estate of the decedent, before the close of the
probate of the estate, the fair market value of the interest
in the land; if more than 1 Indian co-owner offers to pay
for such interest, the highest bidder shall acquire the
interest.
‘‘(C) NO INDIAN TRIBE.—
‘‘(i) IN GENERAL.—If there is no Indian tribe with
jurisdiction over the interests in trust or restricted
lands that would otherwise descend under subparagraph (B)(v), then such interests shall be divided
equally among co-owners of trust or restricted interests
in the parcel; if there are no such co-owners, then
to the United States, provided that any such interests
in land passing to the United States under this
subparagraph shall be sold by the Secretary and the
proceeds from such sale deposited into the land acquisition fund established under section 216 (25 U.S.C.
2215) and used for the purposes described in subsection
(b) of that section.
‘‘(ii) CONTIGUOUS PARCEL.—If the interests passing
to the United States under this subparagraph are in
a parcel of land that is contiguous to another parcel
of trust or restricted land, the Secretary shall give
the owner or owners of the trust or restricted interest
in the contiguous parcel the first opportunity to purchase the interest at not less than fair market value
determined in accordance with this Act. If more than
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PUBLIC LAW 108–374—OCT. 27, 2004
1 such owner in the contiguous parcel request to purchase the parcel, the Secretary shall sell the parcel
by public auction or sealed bid (as determined by the
Secretary) at not less than fair market value to the
owner of a trust or restricted interest in the contiguous
parcel submitting the highest bid.
‘‘(D) INTESTATE DESCENT OF SMALL FRACTIONAL
INTERESTS IN LAND.—
‘‘(i) GENERAL RULE.—Notwithstanding subparagraphs (A) and (B), and subject to any applicable Federal law, any trust or restricted interest in land in
the decedent’s estate that is not disposed of by a valid
will and represents less than 5 percent of the entire
undivided ownership of the parcel of land of which
such interest is a part, as evidenced by the decedent’s
estate inventory at the time of the heirship determination, shall descend in accordance with clauses (ii)
through (iv).
‘‘(ii) SURVIVING SPOUSE.—If there is a surviving
spouse, and such spouse was residing on a parcel of
land described in clause (i) at the time of the decedent’s
death, the spouse shall receive a life estate without
regard to waste in the decedent’s trust or restricted
interest in only such parcel, and the remainder interest
in that parcel shall pass in accordance with clause
(iii).
‘‘(iii) SINGLE HEIR RULE.—Where there is no life
estate created under clause (ii) or there is a remainder
interest under that clause, the trust or restricted
interest or remainder interest that is subject to this
subparagraph shall descend, in trust or restricted
status, to—
‘‘(I) the decedent’s surviving child, but only
if such child is an eligible heir; and if 2 or more
surviving children are eligible heirs, then to the
oldest of such children;
‘‘(II) if the interest does not pass under subclause (I), the decedent’s surviving grandchild, but
only if such grandchild is an eligible heir; and
if 2 or more surviving grandchildren are eligible
heirs, then to the oldest of such grandchildren;
‘‘(III) if the interest does not pass under subclause (I) or (II), the decedent’s surviving great
grandchild, but only if such great grandchild is
an eligible heir; and if 2 or more surviving great
grandchildren are eligible heirs, then to the oldest
of such great grandchildren;
‘‘(IV) if the interest does not pass under subclause (I), (II), or (III), the Indian tribe with jurisdiction over the interest; or
‘‘(V) if the interest does not pass under subclause (I), (II), or (III), and there is no such Indian
tribe to inherit the property under subclause (IV),
the interest shall be divided equally among coowners 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
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118 STAT. 1777
sale used, in the same manner provided in
subparagraph (C).
The determination of which person is the oldest eligible
heir for inheritance purposes under this clause shall be
made by the Secretary in the decedent’s probate proceeding
and shall be consistent with the provisions of this Act.
‘‘(iv) EXCEPTIONS.—Notwithstanding clause (iii)—
‘‘(I)(aa) the heir of an interest under clause
(iii), unless the heir is a minor or incompetent
person, may agree in writing entered into the
record of the decedent’s probate proceeding to
renounce such interest, in trust or restricted
status, in favor of—
‘‘(AA) any other eligible heir or Indian
person related to the heir by blood, but in
any case never in favor of more than 1 such
heir or person;
‘‘(BB) any co-owner of another trust or
restricted interest in such parcel of land; or
‘‘(CC) the Indian tribe with jurisdiction
over the interest, if any; and
‘‘(bb) the Secretary shall give effect to such
agreement in the distribution of the interest in
the probate proceeding; and
‘‘(II) the governing body of the Indian tribe
with jurisdiction over an interest in trust or
restricted land that is subject to the provisions
of this subparagraph may adopt a rule of intestate
descent applicable to such interest that differs from
the order of decedent set forth in clause (iii). The
Secretary shall apply such rule to the interest
in distributing the decedent’s estate, but only if—
‘‘(aa) a copy of the tribal rule is delivered
to the official designated by the Secretary to
receive copies of tribal rules for the purposes
of this clause;
‘‘(bb) the tribal rule provides for the intestate inheritance of such interest by no more
than 1 heir, so that the interest does not further fractionate;
‘‘(cc) the tribal rule does not apply to any
interest disposed of by a valid will;
‘‘(dd) the decedent died on or after the
date described in subsection (b) of section 8
of the American Indian Probate Act of 2004,
or on or after the date on which a copy of
the tribal rule was delivered to the Secretary
pursuant to item (aa), whichever is later; and
‘‘(ee) the Secretary does not make a determination within 90 days after a copy of the
tribal rule is delivered pursuant to item (aa)
that the rule would be unreasonably difficult
to administer or does not conform with the
requirements in item (bb) or (cc).
‘‘(v) RULE OF CONSTRUCTION.—This subparagraph
shall not be construed to limit a person’s right to
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Applicability.
Deadline.
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118 STAT. 1778
PUBLIC LAW 108–374—OCT. 27, 2004
devise any trust or restricted interest by way of a
valid will in accordance with subsection (b).
‘‘(3) RIGHT OF REPRESENTATION.—If, under this subsection,
all or any part of the estate of a decedent is to pass to children
of a deceased child by right of representation, that part is
to be divided into as many equal shares as there are living
children of the decedent and pre-deceased children who left
issue who survive the decedent. Each living child of the
decedent, if any, shall receive 1 share, and the share of each
pre-deceased child shall be divided equally among the predeceased 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.—Section 207 of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by striking
subsection (b) and inserting the following:
‘‘(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).
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‘‘(2) DEVISE OF TRUST OR RESTRICTED LAND AS A LIFE ESTATE
OR IN FEE.—
‘‘(A) IN GENERAL.—Except as provided under any
applicable Federal law, any trust or restricted interest
in land that is not devised in accordance with paragraph
(1)(A) may be devised only—
‘‘(i) as a life estate to any person, with the
remainder being devised only in accordance with
subparagraph (B) or paragraph (1); or
‘‘(ii) except as provided in subparagraph (B), as
a fee interest without Federal restrictions against
alienation to any person who is not eligible to be a
devisee under clause (iv) of paragraph (1)(A).
‘‘(B) INDIAN REORGANIZATION ACT LANDS.—Any interest
in trust or restricted land that is subject to section 4
of the Act of June 18, 1934 (25 U.S.C. 464), may be devised
only in accordance with—
‘‘(i) that section;
‘‘(ii) subparagraph (A)(i); or
‘‘(iii) paragraph (1)(A);
provided that nothing in this section or in section 4 of
the Act of June 18, 1934 (25 U.S.C. 464), shall be construed
to authorize the devise of any interest in trust or restricted
land that is subject to section 4 of that Act to any person
as a fee interest under subparagraph (A)(ii).
‘‘(3) GENERAL DEVISE OF AN INTEREST IN TRUST PERSONALTY.—
‘‘(A) TRUST PERSONALITY DEFINED.—The term ‘trust
personalty’ as used in this section includes all funds and
securities of any kind which are held in trust in an individual Indian money account or otherwise supervised by
the Secretary.
‘‘(B) IN GENERAL.—Subject to any applicable Federal
law relating to the devise or descent of such trust personalty, or a tribal probate code approved by the Secretary
in accordance with section 206, the owner of an interest
in trust personalty may devise such an interest to any
person or entity.
‘‘(C) MAINTENANCE AS TRUST PERSONALTY.—In the case
of a devise of an interest in trust personalty to a person
or Indian tribe eligible to be a devisee under paragraph
(1)(A), the Secretary shall maintain and continue to manage
such interests as trust personalty.
‘‘(D) DIRECT DISBURSEMENT AND DISTRIBUTION.—In the
case of a devise of an interest in trust personalty to a
person or Indian tribe not eligible to be a devisee under
paragraph (1)(A), the Secretary shall directly disburse and
distribute such personalty to the devisee.
‘‘(4) INVALID DEVISES AND WILLS.—
‘‘(A) LAND.—Any trust or restricted interest in land
that is not devised in accordance with paragraph (1) or
(2) or that is not disposed of by a valid will shall descend
in accordance with the applicable law of intestate succession as provided for in subsection (a).
‘‘(B) PERSONALTY.—Any trust personalty that is not
disposed of by a valid will shall descend in accordance
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Applicability.
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with the applicable law of intestate succession as provided
for in subsection (a).’’.
(c) JOINT TENANCY; RIGHT OF SURVIVORSHIP.—Section 207(c)
of the Indian Land Consolidation Act (25 U.S.C. 2206(c)) is amended
by striking all that follows the heading, ‘‘Joint Tenancy; Right
of Survivorship’’, and inserting the following:
‘‘(1) PRESUMPTION OF JOINT TENANCY.—If a testator devises
trust or restricted interests in the same parcel of land to
more than 1 person, in the absence of clear and express language in the devise stating that the interest is to pass to
the devisees as tenants in common, the devise shall be presumed to create a joint tenancy with the right of survivorship
in the interests involved.
‘‘(2) EXCEPTION.—Paragraph (1) shall not apply to any
devise of an interest in trust or restricted land where the
will in which such devise is made was executed prior to the
date that is 1 year after the date on which the Secretary
publishes the certification required by section 8(a)(4) of the
American Indian Probate Reform Act of 2004.’’.
(d) RULE OF CONSTRUCTION.—Section 207 of the Indian Land
Consolidation Act (25 U.S.C. 2206) is amended by adding at the
end the following:
‘‘(h) 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
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as ‘brothers’, ‘sisters’, ‘nieces’, or ‘nephews’, are construed
to include both types of relationships.
‘‘(B) MEANING OF ‘HEIRS’ AND ‘NEXT OF KIN’, ETC.; TIME
OF ASCERTAINING CLASS.—A devise of trust or restricted
interest in land or an interest in trust personalty to the
testator’s or another designated person’s ‘heirs’, ‘next of
kin’, ‘relatives’, or ‘family’ shall mean those persons,
including the spouse, who would be entitled to take under
the provisions of this Act for nontestamentary disposition.
The class is to be ascertained as of the date of the testator’s
death.
‘‘(C) TIME FOR ASCERTAINING CLASS.—In construing a
devise to a class other than a class described in subparagraph (B), the class shall be ascertained as of the time
the devise is to take effect in enjoyment. The surviving
issue of any member of the class who is then dead shall
take by right of representation the share which their
deceased ancestor would have taken.
‘‘(3) MEANING OF ‘DIE WITHOUT ISSUE’ AND SIMILAR
PHRASES.—In any devise under this chapter, the words ‘die
without issue’, ‘die without leaving issue’, ‘have no issue’, or
words of a similar import shall be construed to mean that
an individual had no lineal descendants in his lifetime or at
his death, and not that there will be no lineal descendants
at some future time.
‘‘(4) PERSONS BORN OUT OF WEDLOCK.—In construing provisions of this chapter relating to lapsed and void devises, and
in construing a devise to a person or persons described by
relationship to the testator or to another, a person born out
of wedlock shall be considered the child of the natural mother
and also of the natural father.
‘‘(5) LAPSED DEVISES.—Subject to the provisions of subsection (b), where the testator devises or bequeaths a trust
or restricted interest in land or trust personalty to the testator’s
grandparents or to the lineal descendent of a grandparent,
and the devisee or legatee dies before the testator leaving
lineal descendents, such descendents shall take the interest
so devised or bequeathed per stirpes.
‘‘(6) VOID DEVISES.—Except as provided in paragraph (5),
and if the disposition shall not be otherwise expressly provided
for by a tribal probate code approved under section 206 (25
U.S.C. 2205), if a devise other than a residuary devise of
a trust or restricted interest in land or trust personalty fails
for any reason, such interest shall become part of the residue
and pass, subject to the provisions of subsection (b), to the
other residuary devisees, if any, in proportion to their respective
shares or interests in the residue.
‘‘(7) FAMILY CEMETERY PLOT.—If a family cemetery plot
owned by the testator at his decease is not mentioned in the
decedent’s will, the ownership of the plot shall descend to
his heirs as if he had died intestate.
‘‘(j) HEIRSHIP BY KILLING.—
‘‘(1) HEIR BY KILLING DEFINED.—As used in this subsection,
‘heir by killing’ means any person who knowingly participates,
either as a principal or as an accessory before the fact, in
the willful and unlawful killing of the decedent.
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‘‘(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
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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 nonIndian; 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
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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 adoptedout 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
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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.
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‘‘(6) HEIRS RELATED TO DECEDENT THROUGH 2 LINES; SINGLE
SHARE.—A person who is related to the decedent through 2
lines of relationship is entitled to only a single share of the
trust or restricted land or trust personalty in the decedent’s
estate based on the relationship that would entitle such person
to the larger share.
‘‘(7) NOTICE.—
‘‘(A) IN GENERAL.—To the maximum extent practicable,
the Secretary shall notify each owner of trust and restricted
land of the provisions of this Act.
‘‘(B) COMBINED NOTICES.—The notice under subparagraph (A) may, at the discretion of the Secretary, be provided with the notice required under subsection (a) of
section 8 of the American Indian Probate Reform Act of
2004.
‘‘(8) RENUNCIATION OR DISCLAIMER OF INTERESTS.—
‘‘(A) IN GENERAL.—Any person 18 years of age or older
may renounce or disclaim an inheritance of a trust or
restricted interest in land or in trust personalty through
intestate succession or devise, either in full or subject to
the reservation of a life estate (where the interest is an
interest in land), in accordance with subparagraph (B),
by filing a signed and acknowledged declaration with the
probate decisionmaker prior to entry of a final probate
order. No interest so renounced or disclaimed shall be
considered to have vested in the renouncing or disclaiming
heir or devisee, and the renunciation or disclaimer shall
not be considered to be a transfer or gift of the renounced
or disclaimed interest.
‘‘(B) ELIGIBLE RECIPIENTS OF RENOUNCED OR DISCLAIMED INTERESTS; NOTICE TO RECIPIENTS.—
‘‘(i) INTERESTS IN LAND.—A trust or restricted
interest in land may be renounced or disclaimed only
in favor of—
‘‘(I) an eligible heir;
‘‘(II) any person who would have been eligible
to be a devisee of the interest in question pursuant
to subsection (b)(1)(A) (but only in cases where
the renouncing person is a devisee of the interest
under a valid will); or
‘‘(III) the Indian tribe with jurisdiction over
the interest in question;
and the interest so renounced shall pass to its recipient
in trust or restricted status.
‘‘(ii) TRUST PERSONALTY.—An interest in trust
personalty may be renounced or disclaimed in favor
of any person who would be eligible to be a devisee
of such an interest under subsection (b)(3) and shall
pass to the recipient in accordance with the provisions
of that subsection.
‘‘(iii) UNAUTHORIZED RENUNCIATIONS AND DISCLAIMERS.—Unless renounced or disclaimed in favor
of a person or Indian tribe eligible to receive the
interest in accordance with the provisions of this
subparagraph, a renounced or disclaimed interest shall
pass as if the renunciation or disclaimer had not been
made.
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‘‘(C) ACCEPTANCE OF INTEREST.—A renunciation or disclaimer of an interest filed in accordance with this paragraph shall be considered accepted when implemented in
a final order by a decisionmaker, and shall thereafter be
irrevocable. No renunciation or disclaimer of an interest
shall be included in such order unless the recipient of
the interest has been given notice of the renunciation or
disclaimer and has not refused to accept the interest. All
disclaimers and renunciations filed and implemented in
probate orders made effective prior to the date of enactment
of the American Indian Probate Reform Act of 2004 are
hereby ratified.
‘‘(D) RULE OF CONSTRUCTION.—Nothing in this paragraph shall be construed to allow the renunciation of an
interest that is subject to the provisions of section
207(a)(2)(D) (25 U.S.C. 2206(a)(2)(D)) in favor of more than
1 person.
‘‘(9) CONSOLIDATION AGREEMENTS.—
‘‘(A) IN GENERAL.—During the pendency of probate,
the decisionmaker is authorized to approve written consolidation agreements effecting exchanges or gifts voluntarily
entered into between the decedent’s eligible heirs or devisees, to consolidate interests in any tract of land included
in the decedent’s trust inventory. Such agreements may
provide for the conveyance of interests already owned by
such heirs or devisees in such tracts, without having to
comply with the Secretary’s rules and requirements otherwise applicable to conveyances by deed of trust or restricted
interests in land.
‘‘(B) EFFECTIVE.—An agreement approved under
subparagraph (A) shall be considered final when implemented in an order by a decisionmaker. The final probate
order shall direct any changes necessary to the Secretary’s
land records, to reflect and implement the terms of the
approved agreement.
‘‘(C) EFFECT ON PURCHASE OPTION AT PROBATE.—Any
interest in trust or restricted land that is subject to a
consolidation agreement under this paragraph or section
207(e) (25 U.S.C. 2206(e)) shall not be available for purchase under section 207(p) (25 U.S.C. 2206(p)) unless the
decisionmaker determines that the agreement should not
be approved.’’.
SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN LANDS.
Section 205 of the Indian Land Consolidation Act (25 U.S.C.
2204) (as amended by section 6(a)(2)) is amended by adding at
the end the following:
‘‘(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.
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‘‘(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)
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of at least 50 percent of the undivided interests
in the parcel, but only in cases where the Secretary
determines that, based on the final appraisal prepared pursuant to subparagraph (F), any 1 owner’s
total undivided interest in the parcel (not including
the interest of an Indian tribe or that of the owner
requesting the partition) has a value in excess
of $1,500.
Any consent required by this clause must be in writing
and acknowledged before a notary public (or other
official authorized to make acknowledgments), and
shall be approved by Secretary unless the Secretary
has reason to believe that the consent was obtained
as a result of fraud or undue influence.
‘‘(ii) CONSENT BY THE SECRETARY ON BEHALF OF
CERTAIN INDIVIDUALS.—For the purposes of clause
(i)(III), the Secretary may consent on behalf of—
‘‘(I) undetermined heirs of trust or restricted
interests and owners of such interests who are
minors and legal incompetents having no parents
or legal guardian; and
‘‘(II) missing owners or owners of trust or
restricted interests whose whereabouts are
unknown, but only after a search for such owners
has been completed in accordance with the provisions of this subsection.
‘‘(E) APPRAISAL.—After the Secretary has determined
that the subject parcel is a parcel of highly fractionated
Indian land pursuant to subparagraph (C), the Secretary
shall cause to be made, in accordance with the provisions
of this Act for establishing fair market value, an appraisal
of the fair market value of the subject parcel.
‘‘(F) NOTICE TO OWNERS ON COMPLETION OF
APPRAISAL.—Upon completion of the appraisal, the Secretary shall give notice of the requested partition and
appraisal to all owners of undivided interests in the parcel,
in accordance with principles of due process. Such notice
shall include the following requirements:
‘‘(i) WRITTEN NOTICE.—The Secretary shall attempt
to give each owner written notice of the partition action
stating the following:
‘‘(I) That a proceeding to partition the parcel
of land by sale has been commenced.
‘‘(II) The legal description of the subject parcel.
‘‘(III) The owner’s ownership interest in the
subject parcel as evidenced by the Secretary’s
records as of the date that owners are determined
in accordance with clause (ii).
‘‘(IV) The results of the appraisal.
‘‘(V) The owner’s right to receive a copy of
the appraisal upon written request.
‘‘(VI) The owner’s right to comment on or
object to the proposed partition and the appraisal.
‘‘(VII) That the owner must timely comment
on or object in writing to the proposed partition
or the appraisal, in order to receive notice of
approval of the appraisal and right to appeal.
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‘‘(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
Deadline.
Newspaper.
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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;
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‘‘(vi) the date by which an administrative appeal
must be taken, a citation to the provisions of the Secretary’s regulations that will govern the owner’s
appeal, and any other information required by such
regulations to be given to parties affected by adverse
decisions of the Secretary;
‘‘(vii) in cases where the Secretary determines that
any person’s undivided trust or restricted interest in
the parcel exceeds $1,500 pursuant to paragraph
(2)(D)(iii), that the Secretary has authority to consent
to the partition on behalf of undetermined heirs of
trust or restricted interests in the parcel and owners
of such interests whose whereabouts are unknown;
and
‘‘(viii) any other information the Secretary deems
to be appropriate.
‘‘(I) SALE TO ELIGIBLE PURCHASER.—
‘‘(i) IN GENERAL.—Subject to clauses (ii) and (iii)
and the consent requirements of paragraph (2)(D), the
Secretary shall, after providing notice to owners under
subparagraph (H), including the time and place of sale
or for receiving sealed bids, at public auction or by
sealed bid (whichever of such methods of sale the Secretary determines to be more appropriate under the
circumstances) sell the parcel of land by competitive
bid for not less than the final appraised fair market
value to the highest bidder from among the following
eligible bidders:
‘‘(I) The Indian tribe, if any, with jurisdiction
over the trust or restricted interests in the parcel
being sold.
‘‘(II) Any person who is a member, or is eligible
to be a member, of the Indian tribe described
in subclause (I).
‘‘(III) Any person who is a member, or is
eligible to be a member, of an Indian tribe but
not of the tribe described in subclause (I), but
only if such person already owns an undivided
interest in the parcel at the time of sale.
‘‘(IV) Any lineal descendent of the original
allottee of the parcel who is a member or is eligible
to be a member of an Indian tribe or, with respect
to a parcel located in the State of California that
is not within an Indian tribe’s reservation or not
otherwise subject to the jurisdiction of an Indian
tribe, who is a member, or eligible to be a member,
of an Indian tribe or owns a trust or restricted
interest in the parcel.
‘‘(ii) RIGHT TO MATCH HIGHEST BID.—If the highest
bidder is a person who is only eligible to bid under
clause (i)(III), the Indian tribe that has jurisdiction
over the parcel, if any, shall have the right to match
the highest bid and acquire the parcel, but only if—
‘‘(I) prior to the date of the sale, the governing
body of such tribe has adopted a tribal law or
resolution reserving its right to match the bids
of such nonmember bidders in partition sales
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under this subsection and delivered a copy of such
law or resolution to the Secretary; and
‘‘(II) the parcel is not acquired under clause
(iii).
‘‘(iii) RIGHT TO PURCHASE.—Any person who is a
member, or eligible to be a member, of the Indian
tribe with jurisdiction over the trust or restricted
interests in the parcel being sold and is, as of the
time of sale under this subparagraph, the owner of
the largest undivided interest in the parcel shall have
a right to purchase the parcel by tendering to the
Secretary an amount equal to the highest sufficient
bid submitted at the sale, less that amount of the
bid attributable to such owner’s share, but only if—
‘‘(I) the owner submitted a sufficient bid at
the sale;
‘‘(II) the owner’s total undivided interest in
the parcel immediately prior to the sale was—
‘‘(aa) greater than the undivided interest
held by any other co-owners, except where
there are 2 or more co-owners whose interests
are of equal size but larger than the interests
of all other co-owners and such owners of the
largest interests have agreed in writing that
1 of them may exercise the right of purchase
under this clause; and
‘‘(bb) equal to or greater than 20 percent
of the entire undivided ownership of the
parcel;
‘‘(III) within 3 days following the date of the
auction or for receiving sealed bids, and in accordance with the regulations adopted to implement
this section, the owner delivers to the Secretary
a written notice of intent to exercise the owner’s
rights under this clause; and
‘‘(IV) such owner tenders the amount of the
purchase price required under this clause—
‘‘(aa) not less than 30 days after the date
of the auction or time for receiving sealed
bids; and
‘‘(bb) in accordance with any requirements
of the regulations promulgated to implement
this section.
‘‘(iv) INTEREST ACQUIRED.—A purchaser of a parcel
of land under this subparagraph shall acquire title
to the parcel in trust or restricted status, free and
clear of any and all claims of title or ownership of
all persons or entities (not including the United States)
owning or claiming to own an interest in such parcel
prior to the time of sale.
‘‘(J) PROCEEDS OF SALE.—
‘‘(i) Subject to clauses (ii) and (iii), the Secretary
shall distribute the proceeds of sale of a parcel of
land under the provisions of this section to the owners
of interests in such parcel in proportion to their respective ownership interests.
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‘‘(ii) Proceeds attributable to the sale of trust or
restricted interests shall be maintained in accounts
as trust personalty.
‘‘(iii) Proceeds attributable to the sale of interests
of owners whose whereabouts are unknown, of undetermined heirs, and of other persons whose ownership
interests have not been recorded shall be held by the
Secretary until such owners, heirs, or other persons
have been determined, at which time such proceeds
shall be distributed in accordance with clauses (i) and
(ii).
‘‘(K) LACK OF BIDS OR CONSENT.—
‘‘(i) LACK OF BIDS.—If no bidder described in
subparagraph (I) presents a bid that equals or exceeds
the final appraised value, the Secretary may either—
‘‘(I) purchase the parcel of land for its
appraised fair market value on behalf of the Indian
tribe with jurisdiction over the land, subject to
the lien and procedures provided under section
214(b) (25 U.S.C. 2213(b)); or
‘‘(II) terminate the partition process.
‘‘(ii) LACK OF CONSENT.—If an applicant fails to
obtain any applicable consent required under the provisions of subparagraph (D) by the date established by
the Secretary prior to the proposed sale, the Secretary
may either extend the time for obtaining any such
consent or deny the request for partition.
‘‘(3) ENFORCEMENT.—
‘‘(A) IN GENERAL.—If a partition is approved under
this subsection and an owner of an interest in the parcel
of land refuses to surrender possession in accordance with
the partition decision, or refuses to execute any conveyance
necessary to implement the partition, then any affected
owner or the United States may—
‘‘(i) commence a civil action in the United States
district court for the district in which the parcel of
land is located; and
‘‘(ii) request that the court issue an order for ejectment or any other appropriate remedy necessary for
the partition of the land by sale.
‘‘(B) FEDERAL ROLE.—With respect to any civil action
brought under subparagraph (A)—
‘‘(i) the United States—
‘‘(I) shall receive notice of the civil action; and
‘‘(II) may be a party to the civil action; and
‘‘(ii) the civil action shall not be dismissed, and
no relief requested shall be denied, on the ground
that the civil action is against the United States or
that the United States is a necessary and indispensable
party.
‘‘(4) GRANTS AND LOANS.—The Secretary may provide
grants and low interest loans to successful bidders at sales
authorized by this subsection, provided that—
‘‘(A) the total amount of such assistance in any such
sale shall not exceed 20 percent of the appraised value
of the parcel of land sold; and
Notice.
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‘‘(B) the grant or loan funds provided shall only be
applied toward the purchase price of the parcel of land
sold.
‘‘(5) REGULATIONS.—The Secretary is authorized to adopt
such regulations as may be necessary to implement the provisions of this subsection. Such regulations shall include provisions for giving notice of sales to prospective purchasers eligible
to submit bids at sales conducted under paragraph (2)(I).’’.
SEC. 5. OWNER-MANAGED INTERESTS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)
is amended by adding at the end the following:
‘‘SEC. 221. OWNER-MANAGED INTERESTS.
25 USC 2220.
‘‘(a) PURPOSE.—The purpose of this section is to provide a
means for the co-owners of trust or restricted interests in a parcel
of land to enter into surface leases of such parcel for certain purposes without approval of the Secretary.
‘‘(b) MINERAL INTERESTS.—Nothing in this section shall be construed to limit or otherwise affect the application of any Federal
law requiring the Secretary to approve mineral leases or other
agreements for the development of the mineral interest in trust
or restricted land.
‘‘(c) OWNER MANAGEMENT.—
‘‘(1) IN GENERAL.—Notwithstanding any provision of Federal law requiring the Secretary to approve individual Indian
leases of individual Indian trust or restricted land, where the
owners of all of the undivided trust or restricted interests
in a parcel of land have submitted applications to the Secretary
pursuant to subsection (a), and the Secretary has approved
such applications under subsection (d), such owners may, without further approval by the Secretary, enter into a lease of
the parcel for agricultural purposes for a term not to exceed
10 years.
‘‘(2) RULE OF CONSTRUCTION.—No such lease shall be effective until it has been executed by the owners of all undivided
trust or restricted interests in the parcel.
‘‘(d) APPROVAL OF APPLICATIONS FOR OWNER MANAGEMENT.—
‘‘(1) IN GENERAL.—Subject to the provisions of paragraph
(2), the Secretary shall approve an application for owner
management submitted by a qualified applicant pursuant to
this section unless the Secretary has reason to believe that
the applicant is submitting the application as the result of
fraud or undue influence. No such application shall be valid
or considered if it is received by the Secretary prior to the
date that is 1 year after the date on which notice is published
pursuant to section 8(a)(4) of the American Indian Probate
Reform Act of 2004.
‘‘(2) COMMENCEMENT OF OWNER-MANAGED STATUS.—Notwithstanding the approval of 1 or more applications pursuant
to paragraph (1), no trust or restricted interest in a parcel
of land shall acquire owner-managed status until applications
for all of the trust or restricted interests in such parcel of
land have been submitted to and approved by the Secretary
pursuant to this section.
‘‘(e) VALIDITY OF LEASES.—No lease of trust or restricted
interests in a parcel of land that is owner-managed under this
section shall be valid or enforceable against the owners of such
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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
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‘‘(B) the parent or legal guardian of a minor or incompetent person who owns a trust or restricted interest in
a parcel of land.
‘‘(2) For purposes of this section, the term ‘owner-managed
status’ means, with respect to a trust or restricted interest,
that—
‘‘(A) the interest is a trust or restricted interest in
a parcel of land for which applications covering all trust
or restricted interests in such parcel have been submitted
to and approved by the Secretary pursuant to subsection
(d);
‘‘(B) the interest may be leased without approval of
the Secretary pursuant to, and in a manner that is consistent with, the requirements of this section; and
‘‘(C) no revocation has occurred under subsection (h)(2).
‘‘(j) SECRETARIAL APPROVAL OF OTHER TRANSACTIONS.—Except
with respect to the specific lease transaction described in paragraph
(1) of subsection (c), interests that acquire owner-managed status
under the provisions of this section shall continue to be subject
to all Federal laws requiring the Secretary to approve transactions
involving trust or restricted land (including leases with terms of
a duration in excess of 10 years) that would otherwise apply to
such interests if the interests had not acquired owner-managed
status under this section.
‘‘(k) EFFECT OF SECTION.—Subject to subsections (c), (f), and
(h), nothing in this section diminishes or otherwise affects any
authority or responsibility of the Secretary with respect to an
interest in trust or restricted land.’’.
SEC. 6. ADDITIONAL AMENDMENTS.
(a) IN GENERAL.—The Indian Land Consolidation Act (25 U.S.C.
2201 et seq.) is amended—
(1) in the second sentence of section 205(a) (25 U.S.C.
2204(a)), by striking ‘‘over 50 per centum of the undivided
interests’’ and inserting ‘‘undivided interests equal to at least
50 percent of the undivided interest’’;
(2) in section 207 (25 U.S.C. 2206), by adding a subsection
at the end as follows:
‘‘(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.
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‘‘(C) The Indian tribe with jurisdiction over the interest,
or the Secretary on behalf of such Indian tribe.
‘‘(3) REQUEST TO PURCHASE; AUCTION; CONSENT REQUIREMENTS.—No sale of an interest in probate shall occur under
this subsection unless—
‘‘(A) an eligible purchaser described in paragraph (2)
submits a written request to purchase prior to the distribution of the interest to heirs or devisees of the decedent
and in accordance with any regulations of the Secretary;
and
‘‘(B) except as provided in paragraph (5), the heirs
or devisees of such interest, and the decedent’s surviving
spouse, if any, receiving a life estate under section 207(a)(2)
(A) or (D) consent to the sale.
If the Secretary receives more than 1 request to purchase
the same interest, the Secretary shall sell the interest by public
auction or sealed bid (as determined by the Secretary) at not
less than the appraised fair market value to the eligible purchaser submitting the highest bid.
‘‘(4) APPRAISAL AND NOTICE.—Prior to the sale of an interest
pursuant to this subsection, the Secretary shall—
‘‘(A) appraise the interest at its fair market value
in accordance with this Act;
‘‘(B) provide eligible heirs, other devisees, and the
Indian tribe with jurisdiction over the interest with written
notice, sent by first class mail, that the interest is available
for purchase in accordance with this subsection; and
‘‘(C) if the Secretary receives more than 1 request
to purchase the interest by a person described in subparagraph (B), provide notice of the manner (auction or sealed
bid), time and place of the sale, a description, and the
appraised fair market value, of the interest to be sold—
‘‘(i) to the heirs or other devisees and the Indian
tribe with jurisdiction over the interest, by first class
mail; and
‘‘(ii) to all other eligible purchasers, by posting
written notice in at least 5 conspicuous places in the
vicinity of the place of hearing.
‘‘(5) SMALL UNDIVIDED INTERESTS IN INDIAN LANDS.—
‘‘(A) IN GENERAL.—Subject to subparagraph (B), the
consent of a person who is an heir otherwise required
under paragraph (3)(B) shall not be required for the auction
and sale of an interest at probate under this subsection
if—
‘‘(i) the interest is passing by intestate succession;
and
‘‘(ii) prior to the auction the Secretary determines
in the probate proceeding that the interest passing
to such heir represents less than 5 percent of the
entire undivided ownership of the parcel of land as
evidenced by the Secretary’s records as of the time
the determination is made.
‘‘(B) EXCEPTION.—Notwithstanding subparagraph (A),
the consent of such heir shall be required for the sale
at probate of the heir’s interest if, at the time of the
decedent’s death, the heir was residing on the parcel of
land of which the interest to be sold was a part.
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‘‘(6) DISTRIBUTION OF PROCEEDS.—Proceeds from the sale
of interests under this subsection shall be distributed to the
heirs, devisees, or spouse whose interest was sold in accordance
with the values of their respective interests. The proceeds
attributable to an heir or devisee shall be held in an account
as trust personalty if the interest sold would have otherwise
passed to the heir or devisee in trust or restricted status.’’;
(3) in section 206 (25 U.S.C. 2205)—
(A) in subsection (a), by striking paragraph (3) and
inserting the following:
‘‘(3) TRIBAL PROBATE CODES.—Except as provided in any
applicable Federal law, the Secretary shall not approve a tribal
probate code, or an amendment to such a code, that prohibits
the devise of an interest in trust or restricted land to—
‘‘(A) an Indian lineal descendant of the original allottee;
or
‘‘(B) an Indian who is not a member of the Indian
tribe with jurisdiction over such an interest;
unless the code provides for—
‘‘(i) the renouncing of interests to eligible devisees
in accordance with the code;
‘‘(ii) the opportunity for a devisee who is the spouse
or lineal descendant of a testator to reserve a life
estate without regard to waste; and
‘‘(iii) payment of fair market value in the manner
prescribed under subsection (c)(2).’’; and
(B) in subsection (c)—
(i) in paragraph (1)—
(I) by striking the paragraph heading and
inserting the following:
‘‘(1) AUTHORITY.—
‘‘(A) IN GENERAL.—’’;
(II) in the first sentence of subparagraph (A)
(as redesignated by clause (i)), by striking ‘‘section
207(a)(6)(A) of this title’’ and inserting ‘‘section
207(b)(2)(A)(ii) of this title’’; and
(III) by striking the last sentence and inserting
the following:
‘‘(B) TRANSFER.—The Secretary shall transfer payments received under subparagraph (A) to any person or
persons who would have received an interest in land if
the interest had not been acquired by the Indian tribe
in accordance with this paragraph.’’; and
(ii) in paragraph (2)—
(I) in subparagraph (A)—
(aa) by striking the subparagraph heading
and all that follows through ‘‘Paragraph (1)
shall not apply’’ and inserting the following:
‘‘(A) INAPPLICABILITY TO CERTAIN INTERESTS.—
‘‘(i) IN GENERAL.—Paragraph (1) shall not apply’’;
(bb) in clause (i) (as redesignated by item
(aa)), by striking ‘‘if, while’’ and inserting the
following: ‘‘if—
‘‘(I) while’’;
(cc) by striking the period at the end and
inserting ‘‘; or’’; and
(dd) by adding at the end the following:
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‘‘(II)(aa) the interest is part of a family farm
that is devised to a member of the family of the
decedent; and
‘‘(bb) the devisee agrees that the Indian tribe
with jurisdiction over the land will have the opportunity to acquire the interest for fair market value
if the interest is offered for sale to a person or
entity that is not a member of the family of the
owner of the land.
‘‘(ii) RECORDING OF INTEREST.—On request by the
Indian tribe described in clause (i)(II)(bb), a restriction
relating to the acquisition by the Indian tribe of an
interest in a family farm involved shall be recorded
as part of the deed relating to the interest involved.
‘‘(iii) MORTGAGE AND FORECLOSURE.—Nothing in
clause (i)(II) limits—
‘‘(I) the ability of an owner of land to which
that clause applies to mortgage the land; or
‘‘(II) the right of the entity holding such a
mortgage to foreclose or otherwise enforce such
a mortgage agreement in accordance with
applicable law.
‘‘(iv) DEFINITION OF ‘MEMBER OF THE FAMILY’.—
In this paragraph, the term ‘member of the family’,
with respect to a decedent or landowner, means—
‘‘(I) a lineal descendant of a decedent or landowner;
‘‘(II) a lineal descendant of the grandparent
of a decedent or landowner;
‘‘(III) the spouse of a descendant or landowner
described in subclause (I) or (II); and
‘‘(IV) the spouse of a decedent or landowner.’’;
and
(II) in subparagraph (B), by striking ‘‘subparagraph (A)’’ and all that follows through
‘‘207(a)(6)(B) of this title’’ and inserting ‘‘paragraph
(1)’’;
(4) in section 207 (25 U.S.C. 2206), by striking subsection
(g);
(5) in section 213 (25 U.S.C. 2212)—
(A) by striking the section heading and inserting the
following:
‘‘SEC. 2212. FRACTIONAL INTEREST ACQUISITION PROGRAM.’’;
(B) in subsection (a), by—
(i) adding in paragraph (1) ‘‘or from an heir during
probate in accordance with section 207(p) (25 U.S.C.
2206(p))’’ after ‘‘owner,’’; and
(ii) striking ‘‘(2) AUTHORITY OF SECRETARY.—’’ and
all that follows through ‘‘the Secretary shall submit’’
and inserting the following:
‘‘(2) AUTHORITY OF SECRETARY.—The Secretary shall
submit’’; and
(iii) by striking ‘‘whether the program to acquire
fractional interests should be extended or altered to
make resources’’ and inserting ‘‘how the fractional
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interest acquisition program should be enhanced to
increase the resources made’’;
(C) in subsection (b), by striking paragraph (4) and
inserting the following:
‘‘(4) shall minimize the administrative costs associated with
the land acquisition program through the use of policies and
procedures designed to accommodate the voluntary sale of
interests under this section, notwithstanding the existence of
any otherwise applicable policy, procedure, or regulation,
through the elimination of duplicate—
‘‘(A) conveyance documents;
‘‘(B) administrative proceedings; and
‘‘(C) transactions.’’;
(D) in subsection (c)—
(i) in paragraph (1)—
(I) in subparagraph (A), by striking ‘‘at least
5 percent of the’’ and inserting in its place ‘‘an’’;
(II) in subparagraph (A), by inserting ‘‘in such
parcel’’ following ‘‘the Secretary shall convey an
interest’’;
(III) in subparagraph (A), by striking ‘‘landowner upon payment’’ and all that follows and
inserting the following: ‘‘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.’’; and
(IV) in subparagraph (B), by inserting before
the period at the end the following: ‘‘unless the
interest is subject to a foreclosure of a mortgage
in accordance with the Act of March 29, 1956
(25 U.S.C. 483a)’’; and
(ii) in paragraph (3), by striking ‘‘10 percent or
more of the undivided interests’’ and inserting ‘‘an
undivided interest’’; and
(E) by adding at the end of the section:
‘‘(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.’’;
(6) in section 214 (25 U.S.C. 2213), by striking subsection
(b) and inserting the following:
‘‘(b) APPLICATION OF REVENUE FROM ACQUIRED INTERESTS TO
LAND CONSOLIDATION 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)—
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‘‘(i) any lease, resource sale contract, right-of-way,
or other document evidencing a transaction affecting
the interest shall contain a clause providing that all
revenue derived from the interest shall be paid to
the Secretary; and
‘‘(ii) any revenue derived from any interest
acquired by the Secretary in accordance with section
213 shall be deposited in the fund created under section
216.
‘‘(B) APPROVAL OF TRANSACTIONS.—Notwithstanding
section 16 of the Act of June 18, 1934 (commonly known
as the ‘Indian Reorganization Act’) (25 U.S.C. 476), or
any other provision of law, until the Secretary removes
a lien from an interest in land under paragraph (1), the
Secretary may approve a transaction covered under this
section on behalf of an Indian tribe.
‘‘(3) REMOVAL OF LIENS AFTER FINDINGS.—The Secretary
may remove a lien referred to in paragraph (1) if the Secretary
makes a finding that—
‘‘(A) the costs of administering the interest from which
revenue accrues under the lien will equal or exceed the
projected revenues for the parcel of land involved;
‘‘(B) in the discretion of the Secretary, it will take
an unreasonable period of time for the parcel of land to
generate revenue that equals the purchase price paid for
the interest; or
‘‘(C) a subsequent decrease in the value of land or
commodities associated with the parcel of land make it
likely that the interest will be unable to generate revenue
that equals the purchase price paid for the interest in
a reasonable time.
‘‘(4) REMOVAL OF LIENS UPON PAYMENT INTO THE ACQUISITION FUND.—The Secretary shall remove a lien referred to
in paragraph (1) upon payment of an amount equal to the
purchase price of that interest in land into the Acquisition
Fund created under section 2215 of this title, except where
the tribe with jurisdiction over such interest in land authorizes
the Secretary to continue the lien in order to generate additional acquisition funds.
‘‘(5) OTHER REMOVAL OF LIENS.—The Secretary may, in
consultation with tribal governments and other entities
described in section 213(b)(3), periodically remove liens referred
to in paragraph (1) from interests in land acquired by the
Secretary.’’;
(7) in section 215 (25 U.S.C. 2214), in the last sentence,
by striking ‘‘section 2212 of this title’’ and inserting ‘‘this Act’’;
(8) in section 216 (25 U.S.C. 2215)—
(A) in subsection (a), by striking paragraph (2) and
inserting the following:
‘‘(2) collect all revenues received from the lease, permit,
or sale of resources from interests acquired under section 213
or paid by Indian landowners under section 213.’’; and
(B) in subsection (b)—
(i) in paragraph (1)—
(I) in the matter preceding subparagraph (A),
by striking ‘‘Subject to paragraph (2), all’’ and
inserting ‘‘All’’;
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(II) in subparagraph (A), by striking ‘‘and’’
at the end;
(III) in subparagraph (B), by striking the
period at the end and inserting ‘‘; and’’; and
(IV) by adding at the end the following:
‘‘(C) be used to acquire undivided interests on the
reservation from which the income was derived.’’; and
(ii) by striking paragraph (2) and inserting the
following:
‘‘(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.’’;
(9) in section 217 (25 U.S.C. 2216)—
(A) in subsection (b)(1), by striking subparagraph (B)
and inserting a new subparagraph (B) as follows:
‘‘(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.’’;
(B) in subsection (e), by striking the matter preceding
paragraph (1), and inserting ‘‘Notwithstanding any other
provision of law, the names and mailing addresses of the
owners of any interest in trust or restricted lands, and
information on the location of the parcel and the percentage
of undivided interest owned by each individual shall, upon
written request, be made available to’’;
(C) in subsection (e)(1), by striking ‘‘Indian’’;
(D) in subsection (e)(3), by striking ‘‘prospective
applicants for the leasing, use, or consolidation of’’ and
inserting ‘‘any person that is leasing, using, or consolidating, or is applying to lease, use, or consolidate,’’; and
(E) by striking subsection (f) and inserting the following:
‘‘(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
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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).’’;
(10) in section 219(b)(1)(A) (25 U.S.C. 2218(b)(1)(A)), by
striking ‘‘100’’ and inserting ‘‘90’’; and
(11) in section 219, by adding at the end of the section:
‘‘(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.’’.
(b) DEFINITIONS.—Section 202 of the Indian Land Consolidation
Act (25 U.S.C. 2201) is amended—
(1) by striking paragraph (2) and inserting the following:
‘‘(2) ‘Indian’ means—
‘‘(A) any person who is a member of any Indian tribe,
is eligible to become a member of any Indian tribe, or
is an owner (as of the date of enactment of the American
Indian Probate Reform Act of 2004) of a trust or restricted
interest in land;
‘‘(B) any person meeting the definition of Indian under
the Indian Reorganization Act (25 U.S.C. 479) and the
regulations promulgated thereunder; and
‘‘(C) with respect to the inheritance and ownership
of trust or restricted land in the State of California pursuant to section 207, any person described in subparagraph
(A) or (B) or any person who owns a trust or restricted
interest in a parcel of such land in that State.’’;
(2) by striking paragraph (4) and inserting the following:
‘‘(4) ‘trust or restricted lands’ means lands, title to which
is held by the United States in trust for an Indian tribe or
individual, or which is held by an Indian tribe or individual
subject to a restriction by the United States against alienation;
and ‘trust or restricted interest in land’ or ‘trust or restricted
interest in a parcel of land’ means an interest in land, title
to which is held in trust by the United States for an Indian
tribe or individual, or which is held by an Indian tribe or
individual subject to a restriction by the United States against
alienation.’’; and
(3) by adding at the end the following:
‘‘(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 coowners 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
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‘‘(B) 100 or more co-owners of undivided trust or
restricted interests;
‘‘(7) ‘land’ means any real property, and includes within
its meaning for purposes of this Act improvements permanently
affixed to real property;
‘‘(8) ‘person’ or ‘individual’ means a natural person;
‘‘(9) ‘eligible heirs’ means, for purposes of section 207 (25
U.S.C. 2206), any of a decedent’s children, grandchildren, great
grandchildren, full siblings, half siblings by blood, and parents
who are—
‘‘(A) Indian; or
‘‘(B) lineal descendents within 2 degrees of consanguinity of an Indian; or
‘‘(C) owners of a trust or restricted interest in a parcel
of land for purposes of inheriting by descent, renunciation,
or consolidation agreement under section 207 (25 U.S.C.
2206), another trust or restricted interest in such parcel
from the decedent; and
‘‘(10) ‘without regard to waste’ means, with respect to a
life estate interest in land, that the holder of such estate
is entitled to the receipt of all income, including bonuses and
royalties, from such land to the exclusion of the
remaindermen.’’.
(c) ISSUANCE OF PATENTS.—Section 5 of the Act of February
8, 1887 (25 U.S.C. 348), is amended by striking the second proviso
and inserting the following: ‘‘Provided, That the rules of intestate
succession under the Indian Land Consolidation Act (25 U.S.C.
2201 et seq.) (including a tribal probate code approved under that
Act or regulations promulgated under that Act) shall apply to
that land for which patents have been executed and delivered:’’.
(d) TRANSFERS OF RESTRICTED INDIAN LAND.—Section 4 of the
Act of June 18, 1934 (25 U.S.C. 464), is amended in the first
proviso by—
(1) striking ‘‘, in accordance with’’ and all that follows
through ‘‘or in which the subject matter of the corporation
is located,’’;
(2) striking ‘‘, except as provided by the Indian Land
Consolidation Act’’ and all that follows through the colon; and
(3) inserting ‘‘in accordance with the Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) (including a tribal probate
code approved under that Act or regulations promulgated under
that Act):’’.
(e) ESTATE PLANNING.—
(1) CONDUCT OF ACTIVITIES.—Section 207(f)(1) of the Indian
Land Consolidation Act (25 U.S.C. 2206) is amended by striking
paragraph (1) and inserting the following:
‘‘(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.—Section 207(f)(2) of the Indian Land
Consolidation Act (25 U.S.C. 2206(f)(2)) is amended by striking
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‘‘and’’ at the end of subparagraph (A), redesignating subparagraph (B) as subparagraph (D), and adding the following:
‘‘(B) dramatically increase the use of wills and other
methods of devise among Indian landowners;
‘‘(C) substantially reduce the quantity and complexity
of Indian estates that pass intestate through the probate
process, while protecting the rights and interests of Indian
landowners; and’’.
(3) PROBATE CODE DEVELOPMENT AND LEGAL ASSISTANCE
GRANTS.—Section 207(f)(3) of the Indian Land Consolidation
Act (25 U.S.C. 2206(f)(3)) is amended by striking paragraph
(3) and inserting the following:
‘‘(3) PROBATE CODE DEVELOPMENT AND LEGAL ASSISTANCE
GRANTS.—In carrying out this section, the Secretary may award
grants to—
‘‘(A) Indian tribes, for purposes of tribal probate code
development and estate planning services to tribal members;
‘‘(B) organizations that provide legal assistance services
for Indian tribes, Indian organizations, and individual
owners of interests in trust or restricted lands that are
qualified as nonprofit organizations under section 501(c)(3)
of the Internal Revenue Code of 1986 and provide such
services pursuant to Federal poverty guidelines, for purposes of providing civil legal assistance to such Indian
tribes, individual owners, and Indian organizations for the
development of tribal probate codes, for estate planning
services or for other purposes consistent with the services
they provide to Indians and Indian tribes; and
‘‘(C) in specific areas and reservations where qualified
nonprofit organizations referred to in subparagraph (B)
do not provide such legal assistance to Indian tribes, Indian
organizations, or individual owners of trust or restricted
land, to other providers of such legal assistance;
that submit an application to the Secretary, in such form and
manner as the Secretary may prescribe.
‘‘(4) AUTHORIZATION FOR APPROPRIATIONS.—There is authorized to be appropriated such sums as may be necessary to
carry out the provisions of paragraph (3).’’.
(4) NOTIFICATION TO LANDOWNERS.—Section 207 of the
Indian Land Consolidation Act (25 U.S.C. 2206) is amended
by adding at the end the following:
‘‘(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—
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‘‘(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).
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‘‘(4) REPORT TO CONGRESS.—Prior to the expiration of the
pilot project provided for under this subsection, the Secretary
shall submit a report to Congress stating—
‘‘(A) a description of the Secretary’s consultation with
Indian tribes, individual landowner associations, Indian
advocacy organizations, and other parties consulted with
regarding the development of rules and regulations for
the creation and management of interests in trust and
restricted lands under the pilot project;
‘‘(B) the feasibility of accurately monitoring the
performance of legal entities such as those involved in
the pilot project, and the effectiveness of such entities
as mechanisms to manage and protect trust assets;
‘‘(C) the impact that the use of entities such as those
in the pilot project may have with respect to the accomplishment of the goals of the Indian Land Consolidation
Act (25 U.S.C. 2201 et seq.); and
‘‘(D) any recommendations that the Secretary may have
regarding whether to adopt a permanent program as a
management and consolidation measure for interests in
trust or restricted lands.
‘‘(n) NOTICE TO HEIRS.—Prior to holding a hearing to determine
the heirs to trust or restricted property, or making a decision
determining such heirs, the Secretary shall seek to provide actual
written notice of the proceedings to all heirs. Such efforts shall
include—
‘‘(1) a search of publicly available records and Federal
records, including telephone and address directories and
including electronic search services or directories;
‘‘(2) an inquiry with family members and co-heirs of the
property;
‘‘(3) an inquiry with the tribal government of which the
owner is a member, and the tribal government with jurisdiction
over the property, if any; and
‘‘(4) if the property is of a value greater than $2,000,
engaging the services of an independent firm to conduct a
missing persons search.
‘‘(o) MISSING HEIRS.—
‘‘(1) For purposes of this subsection and subsection (m),
an heir may be presumed missing if—
‘‘(A) such heir’s whereabouts remain unknown 60 days
after completion of notice efforts under subsection (m);
and
‘‘(B) in the proceeding to determine a decedent’s heirs,
the Secretary finds that the heir has had no contact with
other heirs of the decedent, if any, or with the Department
relating to trust or restricted land or other trust assets
at any time during the 6-year period preceding the hearing
to determine heirs.
‘‘(2) Before the date for declaring an heir missing, any
person may request an extension of time to locate such heir.
The Secretary shall grant a reasonable extension of time for
good cause.
‘‘(3) An heir shall be declared missing only after a review
of the efforts made in the heirship proceeding and a finding
has been made that this subsection has been complied with.
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‘‘(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.’’.
SEC. 7. ANNUAL NOTICE AND FILING REQUIREMENT FOR OWNERS
OF INTERESTS IN TRUST OR RESTRICTED LANDS.
The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)
is amended by adding at the end the following:
‘‘SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHEREABOUTS OF
INTEREST OWNERS.
25 USC 2221.
‘‘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.’’.
SEC. 8. NOTICE; EFFECTIVE DATE.
(a) NOTICE.—
(1) IN GENERAL.—Not later than 180 days after the date
of enactment of this Act, the Secretary shall notify Indian
tribes and owners of trust or restricted lands of the amendments made by this Act.
(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 and the amendments made
by this Act, with emphasis on the effect of the provisions
of this Act and the amendments made by this Act, on
the testate disposition and intestate descent of their
interests in trust or restricted land;
(B) estate planning options available to the owners,
including any opportunities for receiving estate planning
assistance or advice;
(C) the use of negotiated sales, gift deeds, land
exchanges, and other transactions for consolidating the
ownership of land; and
(D) a toll-free telephone number to be used for
obtaining information regarding the provisions of this Act
and any trust assets of such owners.
(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—
(A) certify that the requirements of this subsection
have been met; and
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25 USC 2201
note.
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Federal Register,
publication.
(B) publish notice of that certification in the Federal
Register.
(b) EFFECTIVE DATE.—Section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206), except subsections (e) and (f) of that
section, shall not apply to the estate of an individual who dies
before the date that is 1 year after the date on which the Secretary
makes the certification required under subsection (a)(4).
25 USC 2201
note.
SEC. 9. SEVERABILITY.
25 USC 2201
note.
SEC. 10. REGULATIONS.
If any provision of this Act or of any amendment made by
this Act, or the application of any such provision to any person
or circumstance, is held to be invalid for any reason, the remainder
of this Act and of amendments made by this Act, and the application
of the provisions and of the amendments made by this Act to
any other person or circumstance shall not be affected by such
holding, except that each of subclauses (II), (III), and (IV) of section
205(d)(2)(I)(i) is deemed to be inseverable from the other 2, such
that if any 1 of those 3 subclauses is held to be invalid for any
reason, neither of the other 2 of such subclauses shall be given
effect.
The Secretary is authorized to adopt such regulations as may
be necessary to implement the provisions of this Act.
Approved October 27, 2004.
LEGISLATIVE HISTORY—S. 1721:
HOUSE REPORTS: No. 108–656 (Comm. on Resources).
SENATE REPORTS: No. 108–264 (Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 150 (2004):
June 2, considered and passed Senate.
Oct. 6, considered and passed House.
Æ
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| File Type | application/pdf |
| File Title | E:\PUBLAW\PUBL374.108 |
| File Modified | 2004-12-09 |
| File Created | 2004-12-09 |