25 U.s.c. 373

Page 101

§ 373

TITLE 25—INDIANS

§ 372–2. Indian probate judges
Notwithstanding any other provision of law,
for fiscal year 2006 and each fiscal year thereafter, for the purpose of adjudicating Indian probate cases in the Department of the Interior, the
hearing requirements of chapter 10 of this title
are deemed satisfied by a proceeding conducted
by an Indian probate judge, appointed by the
Secretary without regard to the provisions of
title 5 governing the appointments in the competitive service, for such period of time as the
Secretary determines necessary: Provided, That
the basic pay of an Indian probate judge so appointed may be fixed by the Secretary without
regard to the provisions of chapter 51, and subchapter III of chapter 53 of title 5, governing the
classification and pay of General Schedule employees, except that no such Indian probate
judge may be paid at a level which exceeds the
maximum rate payable for the highest grade of
the General Schedule, including locality pay.
(Pub. L. 109–54, title I, § 108, Aug. 2, 2005, 119
Stat. 522; Pub. L. 112–74, div. E, title I, § 111, Dec.
23, 2011, 125 Stat. 1009.)
AMENDMENTS
2011—Pub. L. 112–74 substituted ‘‘for fiscal year 2006
and each fiscal year thereafter, for the purpose of adjudicating’’ for ‘‘in fiscal years 2006 through 2010, for the
purpose of reducing the backlog of’’.

§ 372a. Heirs by adoption
In probate matters under the exclusive jurisdiction of the Secretary of the Interior, no person shall be recognized as an heir of a deceased
Indian by virtue of an adoption—
(1) Unless such adoption shall have been—
(a) by a judgment or decree of a State
court;
(b) by a judgment or decree of an Indian
court;
(c) by a written adoption approved by the
superintendent of the agency having jurisdiction over the tribe of which either the
adopted child or the adoptive parent is a
member, and duly recorded in a book kept
by the superintendent for that purpose; or
(d) by an adoption in accordance with a
procedure established by the tribal authority, recognized by the Department of the Interior, of the tribe either of the adopted
child or the adoptive parent, and duly recorded in a book kept by the tribe for that
purpose; or
(2) Unless such adoption shall have been recognized by the Department of the Interior
prior to the effective date of this section or in
the distribution of the estate of an Indian who
has died prior to that date: Provided, That an
adoption by Indian custom made prior to the
effective date of this section may be made
valid by recordation with the superintendent
if both the adopted child and the adoptive parent are still living, if the adoptive parent requests that the adoption be recorded, and if
the adopted child is an adult and makes such
a request or the superintendent on behalf of a
minor child approves of the recordation.
This section shall not apply with respect to
the distribution of the estates of Indians of the

Five Civilized Tribes or the Osage Tribe in the
State of Oklahoma, or with respect to the distribution of estates of Indians who have died
prior to the effective date of this section.
(July 8, 1940, ch. 555, §§ 1, 2, 54 Stat. 746.)
REFERENCES IN TEXT
For effective date of this section, referred to in text,
see Effective Date note set out below.
CODIFICATION
First and second paragraphs of this section are from
sections 1 and 2, respectively, of act July 8, 1940.
EFFECTIVE DATE
Act July 8, 1940, ch. 555, § 3, 54 Stat. 746, provided that:
‘‘This Act shall become effective six months after the
date of its approval [July 8, 1940].’’
TRANSFER OF FUNCTIONS
For transfer of functions of other officers, employees,
and agencies of Department of the Interior, with certain exceptions, to Secretary of the Interior, with
power to delegate, see Reorg. Plan No. 3 of 1950, §§ 1, 2,
eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in
the Appendix to Title 5, Government Organization and
Employees.

§ 373. Disposal by will of allotments held under
trust
Any persons of the age of eighteen years or
older having any right, title, or interest in any
allotment held under trust or other patent containing restrictions on alienation or individual
Indian moneys or other property held in trust by
the United States shall have the right prior to
the expiration of the trust or restrictive period,
and before the issuance of a fee simple patent or
the removal of restrictions, to dispose of such
property by will, in accordance with the Indian
Land Consolidation Act [25 U.S.C. 2201 et seq.] or
a tribal probate code approved under such Act
and regulations to be prescribed by the Secretary of the Interior: Provided, however, That no
will so executed shall be valid or have any force
or effect unless and until it shall have been approved by the Secretary of the Interior: Provided
further, That the Secretary of the Interior may
approve or disapprove the will either before or
after the death of the testator, and in case
where a will has been approved and it is subsequently discovered that there has been fraud in
connection with the execution or procurement
of the will the Secretary of the Interior is authorized within one year after the death of the
testator to cancel the approval of the will, and
the property of the testator shall thereupon descend or be distributed in accordance with the
laws of the State wherein the property is located: Provided further, That the approval of the
will and the death of the testator shall not operate to terminate the trust or restrictive period,
but the Secretary of the Interior may, in his discretion, cause the lands to be sold and the
money derived therefrom, or so much thereof as
may be necessary, used for the benefit of the
heir or heirs entitled thereto, remove the restrictions, or cause patent in fee to be issued to
the devisee or devisees, and pay the moneys to
the legatee or legatees either in whole or in part
from time to time as he may deem advisable, or
use it for their benefit: Provided also, That this

§ 373a

TITLE 25—INDIANS

section and section 372 of this title shall not
apply to the Five Civilized Tribes or the Osage
Indians.
(June 25, 1910, ch. 431, § 2, 36 Stat. 856; Feb. 14,
1913, ch. 55, 37 Stat. 678; Pub. L. 100–153, § 2, Nov.
5, 1987, 101 Stat. 886; Pub. L. 106–462, title I,
§ 106(b)(2), Nov. 7, 2000, 114 Stat. 2007.)
REFERENCES IN TEXT
The Indian Land Consolidation Act, referred to in
text, is title II of Pub. L. 97–459, Jan. 12, 1983, 96 Stat.
2517, as amended, which is classified generally to chapter 24 (§ 2201 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 2201 of this title and Tables.
AMENDMENTS
2000—Pub. L. 106–462 substituted ‘‘with the Indian
Land Consolidation Act or a tribal probate code approved under such Act and regulations to be prescribed
by the Secretary of the Interior:’’ for ‘‘with regulations
to be prescribed by the Secretary of the Interior:’’.
1987—Pub. L. 100–153 which directed amendment of
this section by substituting ‘‘the age of eighteen years
or older’’ for ‘‘the age of twenty-one years, or over’’
was executed by substituting the new language for ‘‘the
age of twenty-one years’’ as the probable intent of Congress because the words ‘‘, or over’’ did not appear.
1913—Act Feb. 14, 1913, amended section generally.

§ 373a. Disposition of trust or restricted estate of
intestate without heirs; successor tribe; sale
of land
Upon final determination by the Secretary of
the Interior that the Indian holder of a trust or
restricted allotment of lands or an interest
therein has died intestate without heirs, the
lands or interest so owned, together with all accumulated rents, issues, and profits therefrom
held in trust for the decedent, shall escheat to
the tribe owning the land at the time of allotment subject to the payment of such creditors’
claims as the Secretary of the Interior may find
proper to be paid from the cash on hand or income accruing to said estate and subject to all
valid existing agricultural, surface, and mineral
leases and the rights of any person thereunder.
If the tribe which owned the land at the time
of allotment has been reorganized or reconstituted by reason of amalgamation with another
tribe or group of Indians or of subdivision within
the tribe or otherwise, the land shall escheat to
the tribe or group which has succeeded to the jurisdiction of the original tribe over the area in
question. If neither the tribe which owned the
land at the time of allotment nor a successor
tribe or group exists, the land or interest therein shall be held in trust for such Indians as the
Secretary may designate within the State or
States wherein the land is situated or, if the
Secretary determines that the land cannot appropriately be used by or for such Indians, it
shall be sold, subject to all valid existing agricultural, surface, and mineral leases and the
rights of any person thereunder, and the proceeds of such sale shall be held in trust for such
Indians as the Secretary may designate, within
the State or States wherein the land is situated.
(Nov. 24, 1942, ch. 640, § 1, 56 Stat. 1021.)

Page 102

§ 373b. Restricted estate or homestead on the
public domain
If an Indian found to have died intestate without heirs was the holder of a restricted allotment or homestead or interest therein on the
public domain, the land or interest therein and
all accumulated rents, issues, and profits therefrom shall escheat to the United States, subject
to all valid existing agricultural, surface, and
mineral leases and the rights of any person
thereunder, and the land shall become part of
the public domain subject to the payment of
such creditors’ claims as the Secretary of the
Interior may find proper to be paid from the
cash on hand or income accruing to said estate:
Provided, That if the Secretary determines that
the land involved lies within or adjacent to an
Indian community and may be advantageously
used for Indian purposes, the land or interest
therein shall escheat to the United States to be
held in trust for such needy Indians as the Secretary of the Interior may designate, where the
value of the estate does not exceed $50,000, and
in case of estates exceeding said sum, such estates shall be held in trust by the United States
for such Indians as the Congress may on and
after November 24, 1942 designate, subject to all
valid existing agricultural, surface, and mineral
leases and the rights of any person thereunder 1
Provided further, That interests in all Burns public domain allotments located in Harney County, Oregon, belonging to Indians who die intestate without heirs shall be held in trust by the
United States for the Burns Paiute Indian Colony of Oregon and shall be part of the Burns
Paiute Indian Reservation.
(Nov. 24, 1942, ch. 640, § 2, 56 Stat. 1022; Pub. L.
98–25, §§ 2, 3, May 2, 1983, 97 Stat. 185.)
AMENDMENTS
1983—Pub. L. 98–25, § 2, inserted proviso that interests
in all Burns public domain allotments located in Harney County, Oregon, belonging to Indians who die intestate without heirs shall be held in trust by the
United States for the Burns Paiute Indian Colony of
Oregon and shall be part of the Burns Paiute Indian
Reservation.
Pub. L. 98–25, § 3, substituted ‘‘$50,000’’ for ‘‘$2,000’’.
NON-INDIAN LANDS IN HARNEY COUNTY, OREGON
Pub. L. 98–25, § 2, May 2, 1983, 97 Stat. 185, provided in
part that no non-Indian lands in Harney County, Oregon, shall be considered Indian country as defined in
section 1151 of Title 18, Crimes and Criminal Procedure.

§ 373c. Sections 373a and 373b as inapplicable to
certain Indians
The provisions of sections 373a and 373b of this
title shall not apply to the Indians of the Five
Civilized Tribes or the Osage Reservation, in
Oklahoma.
(Nov. 24, 1942, ch. 640, § 3, 56 Stat. 1022.)
§ 374. Attendance of witnesses
The authority delegated to judges of the
United States courts by section 24 of title 35 is
conferred upon the Secretary of the Interior to
require the attendance of witnesses at hearings,
1 So

in original. Probably should be followed by a colon.