|
S.1721
One Hundred Eighth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday, the twentieth day of January, two thousand and four 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.
(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
(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.
`(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.
`(i) IN GENERAL- If there is no Indian tribe with jurisdiction
over the interests in trust or restricted lands that would
otherwise descend under subparagraph (B)(v), then such interests
shall be divided equally among co-owners of trust or restricted
interests in the parcel; if there are no such co-owners, then to
the United States, provided that any such interests in land
passing to the United States under this subparagraph shall be
sold by the Secretary and the proceeds from such sale deposited
into the land acquisition fund established under section 216 (25
U.S.C. 2215) and used for the purposes described in subsection
(b) of that section.
`(ii) CONTIGUOUS PARCEL- If the interests passing to the United
States under this subparagraph are in a parcel of land that is
contiguous to another parcel of trust or restricted land, the
Secretary shall give the owner or owners of the trust or
restricted interest in the contiguous parcel the first
opportunity to purchase the interest at not less than fair
market value determined in accordance with this Act. If more
than 1 such owner in the contiguous parcel request to purchase
the parcel, the Secretary shall sell the parcel by public
auction or sealed bid (as determined by the Secretary) at not
less than fair market value to the owner of a trust or
restricted interest in the contiguous parcel submitting the
highest bid.
`(D) INTESTATE DESCENT OF SMALL FRACTIONAL INTERESTS IN LAND-
`(i) GENERAL RULE- Notwithstanding subparagraphs (A) and (B),
and subject to any applicable Federal law, any trust or
restricted interest in land in the decedent's estate that is not
disposed of by a valid will and represents less than 5 percent
of the entire undivided ownership of the parcel of land of which
such interest is a part, as evidenced by the decedent's estate
inventory at the time of the heirship determination, shall
descend in accordance with clauses (ii) through (iv).
`(ii) SURVIVING SPOUSE- If there is a surviving spouse, and such
spouse was residing on a parcel of land described in clause (i)
at the time of the decedent's death, the spouse shall receive a
life estate without regard to waste in the decedent's trust or
restricted interest in only such parcel, and the remainder
interest in that parcel shall pass in accordance with clause
(iii).
`(iii) SINGLE HEIR RULE- Where there is no life estate created
under clause (ii) or there is a remainder interest under that
clause, the trust or restricted interest or remainder interest
that is subject to this subparagraph shall descend, in trust or
restricted status, to--
`(I) the decedent's surviving child, but only if such child
is an eligible heir; and if 2 or more surviving children are
eligible heirs, then to the oldest of such children;
`(II) if the interest does not pass under subclause (I), the
decedent's surviving grandchild, but only if such grandchild
is an eligible heir; and if 2 or more surviving
grandchildren are eligible heirs, then to the oldest of such
grandchildren;
`(III) if the interest does not pass under subclause (I) or
(II), the decedent's surviving great grandchild, but only if
such great grandchild is an eligible heir; and if 2 or more
surviving great grandchildren are eligible heirs, then to
the oldest of such great grandchildren;
`(IV) if the interest does not pass under subclause (I),
(II), or (III), the Indian tribe with jurisdiction over the
interest; or
`(V) if the interest does not pass under subclause (I),
(II), or (III), and there is no such Indian tribe to inherit
the property under subclause (IV), the interest shall be
divided equally among co-owners of trust or restricted
interests in the parcel; and if there are no such co-owners,
then to the United States, to be sold, and the proceeds from
sale used, in the same manner provided in subparagraph (C).
The determination of which person is the oldest eligible heir for
inheritance purposes under this clause shall be made by the
Secretary in the decedent's probate proceeding and shall be
consistent with the provisions of this Act.
`(iv) EXCEPTIONS- Notwithstanding clause (iii)--
`(I)(aa) the heir of an interest under clause (iii), unless
the heir is a minor or incompetent person, may agree in
writing entered into the record of the decedent's probate
proceeding to renounce such interest, in trust or restricted
status, in favor of--
`(AA) any other eligible heir or Indian person related to the heir by
blood, but in any case never in favor of more than 1 such heir or person;
`(BB) any co-owner of another trust or restricted interest in such
parcel of land; or
`(CC) the Indian tribe with jurisdiction over the interest, if any;
and
`(bb) the Secretary shall give effect to such agreement in
the distribution of the interest in the probate proceeding;
and
`(II) the governing body of the Indian tribe with
jurisdiction over an interest in trust or restricted land
that is subject to the provisions of this subparagraph may
adopt a rule of intestate descent applicable to such
interest that differs from the order of decedent set forth
in clause (iii). The Secretary shall apply such rule to the
interest in distributing the decedent's estate, but only
if--
`(aa) a copy of the tribal rule is delivered to the official
designated by the Secretary to receive copies of tribal rules for the purposes
of this clause;
`(bb) the tribal rule provides for the intestate inheritance of such
interest by no more than 1 heir, so that the interest does not further
fractionate;
`(cc) the tribal rule does not apply to any interest disposed of by a
valid will;
`(dd) the decedent died on or after the date described in subsection
(b) of section 8 of the American Indian Probate Act of 2004, or on or after the
date on which a copy of the tribal rule was delivered to the Secretary pursuant
to item (aa), whichever is later; and
`(ee) the Secretary does not make a determination within 90 days
after a copy of the tribal rule is delivered pursuant to item (aa) that the rule
would be unreasonably difficult to administer or does not conform with the
requirements in item (bb) or (cc).
`(v) RULE OF CONSTRUCTION- This subparagraph shall not be
construed to limit a person's right to devise any trust or
restricted interest by way of a valid will in accordance with
subsection (b).
`(3) RIGHT OF REPRESENTATION- If, under this subsection, all or any part
of the estate of a decedent is to pass to children of a deceased child
by right of representation, that part is to be divided into as many
equal shares as there are living children of the decedent and
pre-deceased children who left issue who survive the decedent. Each
living child of the decedent, if any, shall receive 1 share, and the
share of each pre-deceased child shall be divided equally among the
pre-deceased child's children.
`(4) SPECIAL RULE RELATING TO SURVIVAL- In the case of intestate
succession under this subsection, if an individual fails to survive the
decedent by at least 120 hours, as established by clear and convincing
evidence--
`(A) the individual shall be deemed to have predeceased the decedent
for the purpose of intestate succession; and
`(B) the heirs of the decedent shall be determined in accordance
with this section.
`(5) STATUS OF INHERITED INTERESTS- Except as provided in paragraphs (2)
(A) and (D) regarding the life estate of a surviving spouse, a trust or
restricted interest in land or trust personalty that descends under the
provisions of this subsection shall vest in the heir in the same trust
or restricted status as such interest was held immediately prior to the
decedent's death.'.
(b) TESTAMENTARY DISPOSITION- 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
in trust or restricted status.
`(B) RULES OF INTERPRETATION- Any devise of a trust or restricted
interest in land pursuant to subparagraph (A) to an Indian or the
Indian tribe with jurisdiction over the interest shall be deemed to
be a devise of the interest in trust or restricted status. Any
devise of a trust or restricted interest in land to a person who is
only eligible to be a devisee under clause (i) or (ii) of
subparagraph (A) shall be presumed to be a devise of the interest in
trust or restricted status unless language in such devise clearly
evidences an intent on the part of the testator that the interest is
to pass as a life estate or fee interest in accordance with
paragraph (2)(A).
`(2) DEVISE OF TRUST OR RESTRICTED LAND AS A LIFE ESTATE OR IN FEE-
`(A) IN GENERAL- Except as provided under any applicable Federal
law, any trust or restricted interest in land that is not devised in
accordance with paragraph (1)(A) may be devised only--
`(i) as a life estate to any person, with the remainder being
devised only in accordance with subparagraph (B) or paragraph
(1); or
`(ii) except as provided in subparagraph (B), as a fee interest
without Federal restrictions against alienation to any person
who is not eligible to be a devisee under clause (iv) of
paragraph (1)(A).
`(B) INDIAN REORGANIZATION ACT LANDS- Any interest in trust or
restricted land that is subject to section 4 of the Act of June 18,
1934 (25 U.S.C. 464), may be devised only in accordance with--
`(ii) subparagraph (A)(i); or
provided that nothing in this section or in section 4 of the Act of
June 18, 1934 (25 U.S.C. 464), shall be construed to authorize the
devise of any interest in trust or restricted land that is subject
to section 4 of that Act to any person as a fee interest under
subparagraph (A)(ii).
`(3) GENERAL DEVISE OF AN INTEREST IN TRUST PERSONALTY-
`(A) TRUST PERSONALITY DEFINED- The term `trust personalty' as used
in this section includes all funds and securities of any kind which
are held in trust in an individual Indian money account or otherwise
supervised by the Secretary.
`(B) IN GENERAL- Subject to any applicable Federal law relating to
the devise or descent of such trust personalty, or a tribal probate
code approved by the Secretary in accordance with section 206, the
owner of an interest in trust personalty may devise such an interest
to any person or entity.
`(C) MAINTENANCE AS TRUST PERSONALTY- In the case of a devise of an
interest in trust personalty to a person or Indian tribe eligible to
be a devisee under paragraph (1)(A), the Secretary shall maintain
and continue to manage such interests as trust personalty.
`(D) DIRECT DISBURSEMENT AND DISTRIBUTION- In the case of a devise
of an interest in trust personalty to a person or Indian tribe not
eligible to be a devisee under paragraph (1)(A), the Secretary shall
directly disburse and distribute such personalty to the devisee.
`(4) INVALID DEVISES AND WILLS-
`(A) LAND- Any trust or restricted interest in land that is not
devised in accordance with paragraph (1) or (2) or that is not
disposed of by a valid will shall descend in accordance with the
applicable law of intestate succession as provided for in subsection
(a).
`(B) PERSONALTY- Any trust personalty that is not disposed of by a
valid will shall descend in accordance with the applicable law of
intestate succession as provided for in subsection (a).'.
(c) JOINT TENANCY; RIGHT OF SURVIVORSHIP- 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.
`(A) NO DIFFERENTIATION BETWEEN RELATIONSHIP BY BLOOD AND
RELATIONSHIP BY AFFINITY- Terms of relationship that do not
differentiate relationships by blood from those by affinity, such as
`uncles', `aunts', `nieces', or `nephews', are construed to exclude
relatives by affinity. Terms of relationship that do not
differentiate relationships by the half blood from those by the
whole blood, such as `brothers', `sisters', `nieces', or `nephews',
are construed to include both types of relationships.
`(B) MEANING OF `HEIRS' AND `NEXT OF KIN', ETC.; TIME OF
ASCERTAINING CLASS- A devise of trust or restricted interest in land
or an interest in trust personalty to the testator's or another
designated person's `heirs', `next of kin', `relatives', or `family'
shall mean those persons, including the spouse, who would be
entitled to take under the provisions of this Act for
nontestamentary disposition. The class is to be ascertained as of
the date of the testator's death.
`(C) TIME FOR ASCERTAINING CLASS- In construing a devise to a class
other than a class described in subparagraph (B), the class shall be
ascertained as of the time the devise is to take effect in
enjoyment. The surviving issue of any member of the class who is
then dead shall take by right of representation the share which
their deceased ancestor would have taken.
`(3) MEANING OF `DIE WITHOUT ISSUE' AND SIMILAR PHRASES- In any devise
under this chapter, the words `die without issue', `die without leaving
issue', `have no issue', or words of a similar import shall be construed
to mean that an individual had no lineal descendants in his lifetime or
at his death, and not that there will be no lineal descendants at some
future time.
`(4) PERSONS BORN OUT OF WEDLOCK- In construing provisions of this
chapter relating to lapsed and void devises, and in construing a devise
to a person or persons described by relationship to the testator or to
another, a person born out of wedlock shall be considered the child of
the natural mother and also of the natural father.
`(5) LAPSED DEVISES- Subject to the provisions of subsection (b), where
the testator devises or bequeaths a trust or restricted interest in land
or trust personalty to the testator's grandparents or to the lineal
descendent of a grandparent, and the devisee or legatee dies before the
testator leaving lineal descendents, such descendents shall take the
interest so devised or bequeathed per stirpes.
`(6) VOID DEVISES- Except as provided in paragraph (5), and if the
disposition shall not be otherwise expressly provided for by a tribal
probate code approved under section 206 (25 U.S.C. 2205), if a devise
other than a residuary devise of a trust or restricted interest in land
or trust personalty fails for any reason, such interest shall become
part of the residue and pass, subject to the provisions of subsection
(b), to the other residuary devisees, if any, in proportion to their
respective shares or interests in the residue.
`(7) FAMILY CEMETERY PLOT- If a family cemetery plot owned by the
testator at his decease is not mentioned in the decedent's will, the
ownership of the plot shall descend to his heirs as if he had died
intestate.
`(j) HEIRSHIP BY KILLING-
`(1) HEIR BY KILLING DEFINED- As used in this subsection, `heir by
killing' means any person who knowingly participates, either as a
principal or as an accessory before the fact, in the willful and
unlawful killing of the decedent.
`(2) NO ACQUISITION OF PROPERTY BY KILLING- Subject to any applicable
Federal law relating to the devise or descent of trust or restricted
land, no heir by killing shall in any way acquire any trust or
restricted interests in land or interests in trust personalty as the
result of the death of the decedent, but such property shall pass in
accordance with this subsection.
`(3) DESCENT, DISTRIBUTION, AND RIGHT OF SURVIVORSHIP- The heir by
killing shall be deemed to have predeceased the decedent as to
decedent's trust or restricted interests in land or trust personalty
which would have passed from the decedent or his estate to such heir--
`(A) under intestate succession under this section;
`(B) under a tribal probate code, unless otherwise provided for;
`(C) as the surviving spouse;
`(E) as a reversion or a vested remainder;
`(F) as a survivorship interest; and
`(G) as a contingent remainder or executory or other future
interest.
`(4) JOINT TENANTS, JOINT OWNERS, AND JOINT OBLIGEES-
`(A) Any trust or restricted land or trust personalty held by only
the heir by killing and the decedent as joint tenants, joint owners,
or joint obligees shall pass upon the death of the decedent to his
or her estate, as if the heir by killing had predeceased the
decedent.
`(B) As to trust or restricted land or trust personalty held jointly
by 3 or more persons, including both the heir by killing and the
decedent, any income which would have accrued to the heir by killing
as a result of the death of the decedent shall pass to the estate of
the decedent as if the heir by killing had predeceased the decedent
and any surviving joint tenants.
`(C) Notwithstanding any other provision of this subsection, the
decedent's trust or restricted interest land or trust personalty
that is held in a joint tenancy with the right of survivorship shall
be severed from the joint tenancy as though the property held in the
joint tenancy were to be severed and distributed equally among the
joint tenants and the decedent's interest shall pass to his estate;
the remainder of the interests shall remain in joint tenancy with
right of survivorship among the surviving joint tenants.
`(5) LIFE ESTATE FOR THE LIFE OF ANOTHER- If the estate is held by a
third person whose possession expires upon the death of the decedent, it
shall remain in such person's hands for the period of time following the
decedent's death equal to the life expectancy of the decedent but for
the killing.
`(6) PREADJUDICATION RULE-
`(A) IN GENERAL- If a person has been charged, whether by
indictment, information, or otherwise by the United States, a tribe,
or any State, with voluntary manslaughter or homicide in connection
with a decedent's death, then any and all trust or restricted land
or trust personalty that would otherwise pass to that person from
the decedent's estate shall not pass or be distributed by the
Secretary until the charges have been resolved in accordance with
the provisions of this paragraph.
`(B) DISMISSAL OR WITHDRAWAL- Upon dismissal or withdrawal of the
charge, or upon a verdict of not guilty, such land and personalty
shall pass as if no charge had been filed or made.
`(C) CONVICTION- Upon conviction of such person, and the exhaustion
of all appeals, if any, the trust and restricted land and trust
personalty in the estate shall pass in accordance with this
subsection.
`(7) BROAD CONSTRUCTION; POLICY OF SUBSECTION- This subsection shall not
be considered penal in nature, but shall be construed broadly in order
to effect the policy that no person shall be allowed to profit by his
own wrong, wherever committed.
`(k) GENERAL RULES GOVERNING PROBATE-
`(1) SCOPE- Except as provided under applicable Federal law or a tribal
probate code approved under section 206, the provisions of this
subsection shall govern the probate of estates containing trust and
restricted interests in land or trust personalty.
`(2) PRETERMITTED SPOUSES AND CHILDREN-
`(i) IN GENERAL- Except as provided in clause (ii), if the
surviving spouse of a testator married the testator after the
testator executed the will of the testator, the surviving spouse
shall receive the intestate share in the decedent's trust or
restricted land and trust personalty that the spouse would have
received if the testator had died intestate.
`(ii) EXCEPTION- Clause (i) shall not apply to a trust or
restricted interest land where--
`(I) the will of a testator is executed before the date of
enactment of this subparagraph;
`(II)(aa) the spouse of a testator is a non-Indian; and
`(bb) the testator devised the interests in trust or
restricted land of the testator to 1 or more Indians;
`(III) it appears, based on an examination of the will or
other evidence, that the will was made in contemplation of
the marriage of the testator to the surviving spouse;
`(IV) the will expresses the intention that the will is to
be effective notwithstanding any subsequent marriage; or
`(V)(aa) the testator provided for the spouse by a transfer
of funds or property outside the will; and
`(bb) an intent that the transfer be in lieu of a
testamentary provision is demonstrated by statements of the
testator or through a reasonable inference based on the
amount of the transfer or other evidence.
`(iii) SPOUSES MARRIED AT THE TIME OF THE WILL- Should the
surviving spouse of the testator be omitted from the will of the
testator, the surviving spouse shall be treated, for purposes of
trust or restricted land or trust personalty in the testator's
estate, in accordance with the provisions of section
207(a)(2)(A), as though there was no will but only if--
`(I) the testator and surviving spouse were continuously
married without legal separation for the 5-year period
preceding the decedent's death;
`(II) the testator and surviving spouse have a surviving
child who is the child of the testator;
`(III) the surviving spouse has made substantial payments
toward the purchase of, or improvements to, the trust or
restricted land in such estate; or
`(IV) the surviving spouse is under a binding obligation to
continue making loan payments for the trust or restricted
land for a substantial period of time;
except that, if there is evidence that the testator adequately
provided for the surviving spouse and any minor children by a
transfer of funds or property outside of the will, this clause
shall not apply.
`(i) IN GENERAL- If a testator executed the will of the testator
before the birth or adoption of 1 or more children of the
testator, and the omission of the children from the will is a
product of inadvertence rather than an intentional omission, the
children shall share in the trust or restricted interests in
land and trust personalty as if the decedent had died intestate.
`(ii) ADOPTED HEIRS- Any person recognized as an heir by virtue
of adoption under the Act of July 8, 1940 (25 U.S.C. 372a),
shall be treated as the child of a decedent under this
subsection.
`(iii) ADOPTED-OUT CHILDREN-
`(I) IN GENERAL- For purposes of this Act, an adopted person
shall not be considered the child or issue of his natural
parents, except in distributing the estate of a natural kin,
other than the natural parent, who has maintained a family
relationship with the adopted person. If a natural parent
shall have married the adopting parent, the adopted person
for purposes of inheritance by, from and through him shall
also be considered the issue of such natural parent.
`(II) ELIGIBLE HEIR PURSUANT TO OTHER FEDERAL LAW OR TRIBAL
LAW- Notwithstanding the provisions of subparagraph
(B)(iii)(I), other Federal laws and laws of the Indian tribe
with jurisdiction over the trust or restricted interest in
land may otherwise define the inheritance rights of
adopted-out children.
`(i) IN GENERAL- An individual who is divorced from a decedent,
or whose marriage to the decedent has been annulled, shall not
be considered to be a surviving spouse unless, by virtue of a
subsequent marriage, the individual is married to the decedent
at the time of death of the decedent.
`(ii) SEPARATION- A decree of separation that does not dissolve
a marriage, and terminate the status of husband and wife, shall
not be considered a divorce for the purpose of this subsection.
`(iii) NO EFFECT ON ADJUDICATIONS- Nothing in clause (i) shall
prevent the Secretary from giving effect to a property right
settlement relating to a trust or restricted interest in land or
an interest in trust personalty if 1 of the parties to the
settlement dies before the issuance of a final decree dissolving
the marriage of the parties to the property settlement.
`(B) EFFECT OF SUBSEQUENT DIVORCE ON A WILL OR DEVISE-
`(i) IN GENERAL- If, after executing a will, a testator is
divorced or the marriage of the testator is annulled, as of the
effective date of the divorce or annulment, any disposition of
trust or restricted interests in land or of trust personalty
made by the will to the former spouse of the testator shall be
considered to be revoked unless the will expressly provides
otherwise.
`(ii) PROPERTY- Property that is prevented from passing to a
former spouse of a decedent under clause (i) shall pass as if
the former spouse failed to survive the decedent.
`(iii) PROVISIONS OF WILLS- Any provision of a will that is
considered to be revoked solely by operation of this
subparagraph shall be revived by the remarriage of a testator to
the former spouse of the testator.
`(4) AFTER-BORN HEIRS- A child in gestation at the time of decedent's
death will be treated as having survived the decedent if the child lives
at least 120 hours after its birth.
`(5) ADVANCEMENTS OF TRUST PERSONALTY DURING LIFETIME; EFFECT ON
DISTRIBUTION OF ESTATE-
`(A) The trust personalty of a decedent who dies intestate as to all
or a portion of his or her estate, given during the decedent's
lifetime to a person eligible to be an heir of the decedent under
subsection (b)(2)(B), shall be treated as an advancement against the
heir's inheritance, but only if the decedent declared in a
contemporaneous writing, or the heir acknowledged in writing, that
the gift is an advancement or is to be taken into account in
computing the division and distribution of the decedent's intestate
estate.
`(B) For the purposes of this section, trust personalty advanced
during the decedent's lifetime is valued as of the time the heir
came into possession or enjoyment of the property or as of the time
of the decedent's death, whichever occurs first.
`(C) If the recipient of the trust personalty predeceases the
decedent, the property shall not be treated as an advancement or
taken into account in computing the division and distribution of the
decedent's intestate estate unless the decedent's contemporaneous
writing provides otherwise.
`(6) HEIRS RELATED TO DECEDENT THROUGH 2 LINES; SINGLE SHARE- A person
who is related to the decedent through 2 lines of relationship is
entitled to only a single share of the trust or restricted land or trust
personalty in the decedent's estate based on the relationship that would
entitle such person to the larger share.
`(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--
`(II) any person who would have been eligible to be a
devisee of the interest in question pursuant to subsection
(b)(1)(A) (but only in cases where the renouncing person is
a devisee of the interest under a valid will); or
`(III) the Indian tribe with jurisdiction over the interest
in question;
and the interest so renounced shall pass to its recipient in
trust or restricted status.
`(ii) TRUST PERSONALTY- An interest in trust personalty may be
renounced or disclaimed in favor of any person who would be
eligible to be a devisee of such an interest under subsection
(b)(3) and shall pass to the recipient in accordance with the
provisions of that subsection.
`(iii) UNAUTHORIZED RENUNCIATIONS AND DISCLAIMERS- Unless
renounced or disclaimed in favor of a person or Indian tribe
eligible to receive the interest in accordance with the
provisions of this subparagraph, a renounced or disclaimed
interest shall pass as if the renunciation or disclaimer had not
been made.
`(C) ACCEPTANCE OF INTEREST- A renunciation or disclaimer of an
interest filed in accordance with this paragraph shall be considered
accepted when implemented in a final order by a decisionmaker, and
shall thereafter be irrevocable. No renunciation or disclaimer of an
interest shall be included in such order unless the recipient of the
interest has been given notice of the renunciation or disclaimer and
has not refused to accept the interest. All disclaimers and
renunciations filed and implemented in probate orders made effective
prior to the date of enactment of the American Indian Probate Reform
Act of 2004 are hereby ratified.
`(D) RULE OF CONSTRUCTION- Nothing in this paragraph shall be
construed to allow the renunciation of an interest that is subject
to the provisions of section 207(a)(2)(D) (25 U.S.C. 2206(a)(2)(D))
in favor of more than 1 person.
`(9) CONSOLIDATION AGREEMENTS-
`(A) IN GENERAL- During the pendency of probate, the decisionmaker
is authorized to approve written consolidation agreements effecting
exchanges or gifts voluntarily entered into between the decedent's
eligible heirs or devisees, to consolidate interests in any tract of
land included in the decedent's trust inventory. Such agreements may
provide for the conveyance of interests already owned by such heirs
or devisees in such tracts, without having to comply with the
Secretary's rules and requirements otherwise applicable to
conveyances by deed of trust or restricted interests in land.
`(B) EFFECTIVE- An agreement approved under subparagraph (A) shall
be considered final when implemented in an order by a decisionmaker.
The final probate order shall direct any changes necessary to the
Secretary's land records, to reflect and implement the terms of the
approved agreement.
`(C) EFFECT ON PURCHASE OPTION AT PROBATE- Any interest in trust or
restricted land that is subject to a consolidation agreement under
this paragraph or section 207(e) (25 U.S.C. 2206(e)) shall not be
available for purchase under section 207(p) (25 U.S.C. 2206(p))
unless the decisionmaker determines that the agreement should not be
approved.'.
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.
`(2) REQUIREMENTS- Each partition action under this subsection shall be
conducted by the Secretary in accordance with the following
requirements:
`(A) APPLICATION- Upon receipt of any payment or bond required under
subparagraph (B), the Secretary shall commence a process for
partitioning a parcel of land by sale in accordance with the
provisions of this subsection upon receipt of an application by--
`(i) the Indian tribe with jurisdiction over the subject land
that owns an undivided interest in the parcel of land; or
`(ii) any person owning an undivided interest in the parcel of
land who is eligible to bid at the sale of the parcel pursuant
to subclause (II), (III), or (IV) of subparagraph (I)(i);
provided that no such application shall be valid or considered if it
is received by the Secretary prior to the date that is 1 year after
the date on which notice is published pursuant to section 8(a)(4) of
the American Indian Probate Reform Act of 2004.
`(B) COSTS OF SERVING NOTICE AND PUBLICATION- The costs of serving
and publishing notice under subparagraph (F) shall be borne by the
applicant. Upon receiving written notice from the Secretary, the
applicant must pay to the Secretary an amount determined by the
Secretary to be the estimated costs of such service of notice and
publication, or furnish a sufficient bond for such estimated costs
within the time stated in the notice, failing which, unless an
extension is granted by the Secretary, the Secretary shall not be
required to commence the partition process under subparagraph (A)
and may deny the application. The Secretary shall have the
discretion and authority in any case to waive either the payment or
the bond (or any portion of such payment or bond) otherwise required
by this subparagraph, upon making a determination that such waiver
will further the policies of this Act.
`(C) DETERMINATION- Upon receipt of an application pursuant to
subparagraph (A), the Secretary shall determine whether the subject
parcel meets the requirements set forth in section 202(6) (25 U.S.C.
2201(6)) to be classified as a parcel of highly fractionated Indian
land.
`(D) CONSENT REQUIREMENTS-
`(i) IN GENERAL- A parcel of land may be partitioned under this
subsection only if the applicant obtains the written consent
of--
`(I) the Indian tribe with jurisdiction over the subject
land if such Indian tribe owns an undivided interest in the
parcel;
`(II) any owner who, for the 3-year period immediately
preceding the date on which the Secretary receives the
application, has
`(aa) continuously maintained a bona fide residence on the parcel; or
`(bb) operated a bona fide farm, ranch, or other business on the
parcel; and
`(III) the owners (including parents of minor owners and
legal guardians of incompetent owners) of at least 50
percent of the undivided interests in the parcel, but only
in cases where the Secretary determines that, based on the
final appraisal prepared pursuant to subparagraph (F), any 1
owner's total undivided interest in the parcel (not
including the interest of an Indian tribe or that of the
owner requesting the partition) has a value in excess of
$1,500.
Any consent required by this clause must be in writing and
acknowledged before a notary public (or other official
authorized to make acknowledgments), and shall be approved by
Secretary unless the Secretary has reason to believe that the
consent was obtained as a result of fraud or undue influence.
`(ii) CONSENT BY THE SECRETARY ON BEHALF OF CERTAIN INDIVIDUALS-
For the purposes of clause (i)(III), the Secretary may consent
on behalf of--
`(I) undetermined heirs of trust or restricted interests and
owners of such interests who are minors and legal
incompetents having no parents or legal guardian; and
`(II) missing owners or owners of trust or restricted
interests whose whereabouts are unknown, but only after a
search for such owners has been completed in accordance with
the provisions of this subsection.
`(E) APPRAISAL- After the Secretary has determined that the subject
parcel is a parcel of highly fractionated Indian land pursuant to
subparagraph (C), the Secretary shall cause to be made, in
accordance with the provisions of this Act for establishing fair
market value, an appraisal of the fair market value of the subject
parcel.
`(F) NOTICE TO OWNERS ON COMPLETION OF APPRAISAL- Upon completion of
the appraisal, the Secretary shall give notice of the requested
partition and appraisal to all owners of undivided interests in the
parcel, in accordance with principles of due process. Such notice
shall include the following requirements:
`(i) WRITTEN NOTICE- The Secretary shall attempt to give each
owner written notice of the partition action stating the
following:
`(I) That a proceeding to partition the parcel of land by
sale has been commenced.
`(II) The legal description of the subject parcel.
`(III) The owner's ownership interest in the subject parcel
as evidenced by the Secretary's records as of the date that
owners are determined in accordance with clause (ii).
`(IV) The results of the appraisal.
`(V) The owner's right to receive a copy of the appraisal
upon written request.
`(VI) The owner's right to comment on or object to the
proposed partition and the appraisal.
`(VII) That the owner must timely comment on or object in
writing to the proposed partition or the appraisal, in order
to receive notice of approval of the appraisal and right to
appeal.
`(VIII) The date by which the owner's written comments or
objections must be received, which shall not be less than 90
days after the date that the notice is mailed under this
clause or last published under clause (ii)(II).
`(IX) The address for requesting copies of the appraisal and
for submitting written comments or objections.
`(X) The name and telephone number of the official to be
contacted for purposes of obtaining information regarding
the proceeding, including the time and date of the auction
of the land or the date for submitting sealed bids.
`(XI) Any other information the Secretary deems to be
appropriate.
`(I) SERVICE BY CERTIFIED MAIL- The Secretary shall use due
diligence to provide all owners of interests in the subject
parcel, as evidenced by the Secretary's records at the time
of the determination under subparagraph (C), with actual
notice of the partition proceedings by mailing a copy of the
written notice described in clause (i) by certified mail,
restricted delivery, to each such owner at the owner's last
known address. For purposes of this subsection, owners shall
be determined from the Secretary's land title records as of
the date of the determination under subparagraph (C) or a
date that is not more than 90 days prior to the date of
mailing under this clause, whichever is later. In the event
the written notice to an owner is returned undelivered, the
Secretary shall attempt to obtain a current address for such
owner by conducting a reasonable search (including a
reasonable search of records maintained by local, State,
Federal and tribal governments and agencies) and by
inquiring with the Indian tribe with jurisdiction over the
subject parcel, and, if different from that tribe, the
Indian tribe of which the owner is a member, and, if
successful in locating any such owner, send written notice
by certified mail in accordance with this subclause.
`(II) NOTICE BY PUBLICATION- The Secretary shall give notice
by publication of the partition proceedings to all owners
that the Secretary was unable to serve pursuant to subclause
(I), and to unknown heirs and assigns by--
`(aa) publishing the notice described in clause (i) at least 2 times
in a newspaper of general circulation in the county or counties where the
subject parcel of land is located or, if there is an Indian tribe with
jurisdiction over the parcel of land and that tribe publishes a tribal newspaper
or newsletter at least once every month, 1 time in such newspaper of general
circulation and 1 time in such tribal newspaper or newsletter;
`(bb) posting such notice in a conspicuous place in the tribal
headquarters or administration building (or such other tribal building
determined by the Secretary to be most appropriate for giving public notice) of
the Indian tribe with jurisdiction over the parcel of land, if any; and
`(cc) in addition to the foregoing, in the Secretary's discretion,
publishing notice in any other place or means that the Secretary determines to
be appropriate.
`(G) REVIEW OF COMMENTS ON APPRAISAL-
`(i) IN GENERAL- After reviewing and considering comments or
information timely submitted by any owner of an interest in the
parcel in response to the notice required under subparagraph
(F), the Secretary may, consistent with the provisions of this
Act for establishing fair market value--
`(I) order a new appraisal; or
`(II) approve the appraisal;
provided that if the Secretary orders a new appraisal under
subclause (I), notice of the new appraisal shall be given as
specified in clause (ii).
`(ii) NOTICE- Notice shall be given--
`(I) in accordance with subparagraph (H), where the new
appraisal results in a higher valuation of the land; or
`(II) in accordance with subparagraph (F)(ii), where the new
appraisal results in a lower valuation of the land.
`(H) NOTICE TO OWNERS OF APPROVAL OF APPRAISAL AND RIGHT TO APPEAL-
Upon making the determination under subparagraph (G), the Secretary
shall provide to the Indian tribe with jurisdiction over the subject
land and to all persons who submitted written comments on or
objections to the proposed partition or appraisal, a written notice
to be served on such tribe and persons by certified mail. Such
notice shall state--
`(i) the results of the appraisal;
`(ii) that the owner has the right to review a copy of the
appraisal upon request;
`(iii) that the land will be sold for not less than the
appraised value, subject to the consent requirements under
paragraph (2)(D);
`(iv) the time of the sale or for submitting bids under
subparagraph (I);
`(v) that the owner has the right, under the Secretary's
regulations governing administrative appeals, to pursue an
administrative appeal from--
`(I) the determination that the land may be partitioned by
sale under the provisions of this section; and
`(II) the Secretary's order approving the appraisal;
`(vi) the date by which an administrative appeal must be taken,
a citation to the provisions of the Secretary's regulations that
will govern the owner's appeal, and any other information
required by such regulations to be given to parties affected by
adverse decisions of the Secretary;
`(vii) in cases where the Secretary determines that any person's
undivided trust or restricted interest in the parcel exceeds
$1,500 pursuant to paragraph (2)(D)(iii), that the Secretary has
authority to consent to the partition on behalf of undetermined
heirs of trust or restricted interests in the parcel and owners
of such interests whose whereabouts are unknown; and
`(viii) any other information the Secretary deems to be
appropriate.
`(I) SALE TO ELIGIBLE PURCHASER-
`(i) IN GENERAL- Subject to clauses (ii) and (iii) and the
consent requirements of paragraph (2)(D), the Secretary shall,
after providing notice to owners under subparagraph (H),
including the time and place of sale or for receiving sealed
bids, at public auction or by sealed bid (whichever of such
methods of sale the Secretary determines to be more appropriate
under the circumstances) sell the parcel of land by competitive
bid for not less than the final appraised fair market value to
the highest bidder from among the following eligible bidders:
`(I) The Indian tribe, if any, with jurisdiction over the
trust or restricted interests in the parcel being sold.
`(II) Any person who is a member, or is eligible to be a
member, of the Indian tribe described in subclause (I).
`(III) Any person who is a member, or is eligible to be a
member, of an Indian tribe but not of the tribe described in
subclause (I), but only if such person already owns an
undivided interest in the parcel at the time of sale.
`(IV) Any lineal descendent of the original allottee of the
parcel who is a member or is eligible to be a member of an
Indian tribe or, with respect to a parcel located in the
State of California that is not within an Indian tribe's
reservation or not otherwise subject to the jurisdiction of
an Indian tribe, who is a member, or eligible to be a
member, of an Indian tribe or owns a trust or restricted
interest in the parcel.
`(ii) RIGHT TO MATCH HIGHEST BID- If the highest bidder is a
person who is only eligible to bid under clause (i)(III), the
Indian tribe that has jurisdiction over the parcel, if any,
shall have the right to match the highest bid and acquire the
parcel, but only if--
`(I) prior to the date of the sale, the governing body of
such tribe has adopted a tribal law or resolution reserving
its right to match the bids of such nonmember bidders in
partition sales under this subsection and delivered a copy
of such law or resolution to the Secretary; and
`(II) the parcel is not acquired under clause (iii).
`(iii) RIGHT TO PURCHASE- Any person who is a member, or
eligible to be a member, of the Indian tribe with jurisdiction
over the trust or restricted interests in the parcel being sold
and is, as of the time of sale under this subparagraph, the
owner of the largest undivided interest in the parcel shall have
a right to purchase the parcel by tendering to the Secretary an
amount equal to the highest sufficient bid submitted at the
sale, less that amount of the bid attributable to such owner's
share, but only if--
`(I) the owner submitted a sufficient bid at the sale;
`(II) the owner's total undivided interest in the parcel
immediately prior to the sale was--
`(aa) greater than the undivided interest held by any other
co-owners, except where there are 2 or more co-owners whose interests are of
equal size but larger than the interests of all other co-owners and such owners
of the largest interests have agreed in writing that 1 of them may exercise the
right of purchase under this clause; and
`(bb) equal to or greater than 20 percent of the entire undivided
ownership of the parcel;
`(III) within 3 days following the date of the auction or
for receiving sealed bids, and in accordance with the
regulations adopted to implement this section, the owner
delivers to the Secretary a written notice of intent to
exercise the owner's rights under this clause; and
`(IV) such owner tenders the amount of the purchase price
required under this clause--
`(aa) not less than 30 days after the date of the auction or time for
receiving sealed bids; and
`(bb) in accordance with any requirements of the regulations
promulgated to implement this section.
`(iv) INTEREST ACQUIRED- A purchaser of a parcel of land under
this subparagraph shall acquire title to the parcel in trust or
restricted status, free and clear of any and all claims of title
or ownership of all persons or entities (not including the
United States) owning or claiming to own an interest in such
parcel prior to the time of sale.
`(i) Subject to clauses (ii) and (iii), the Secretary shall
distribute the proceeds of sale of a parcel of land under the
provisions of this section to the owners of interests in such
parcel in proportion to their respective ownership interests.
`(ii) Proceeds attributable to the sale of trust or restricted
interests shall be maintained in accounts as trust personalty.
`(iii) Proceeds attributable to the sale of interests of owners
whose whereabouts are unknown, of undetermined heirs, and of
other persons whose ownership interests have not been recorded
shall be held by the Secretary until such owners, heirs, or
other persons have been determined, at which time such proceeds
shall be distributed in accordance with clauses (i) and (ii).
`(K) LACK OF BIDS OR CONSENT-
`(i) LACK OF BIDS- If no bidder described in subparagraph (I)
presents a bid that equals or exceeds the final appraised value,
the Secretary may either--
`(I) purchase the parcel of land for its appraised fair
market value on behalf of the Indian tribe with jurisdiction
over the land, subject to the lien and procedures provided
under section 214(b) (25 U.S.C. 2213(b)); or
`(II) terminate the partition process.
`(ii) LACK OF CONSENT- If an applicant fails to obtain any
applicable consent required under the provisions of subparagraph
(D) by the date established by the Secretary prior to the
proposed sale, the Secretary may either extend the time for
obtaining any such consent or deny the request for partition.
`(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) shall receive notice of the civil action; and
`(II) may be a party to the civil action; and
`(ii) the civil action shall not be dismissed, and no relief
requested shall be denied, on the ground that the civil action
is against the United States or that the United States is a
necessary and indispensable party.
`(4) GRANTS AND LOANS- The Secretary may provide grants and low interest
loans to successful bidders at sales authorized by this subsection,
provided that--
`(A) the total amount of such assistance in any such sale shall not
exceed 20 percent of the appraised value of the parcel of land sold;
and
`(B) the grant or loan funds provided shall only be applied toward
the purchase price of the parcel of land sold.
`(5) REGULATIONS- The Secretary is authorized to adopt such regulations
as may be necessary to implement the provisions of this subsection. Such
regulations shall include provisions for giving notice of sales to
prospective purchasers eligible to submit bids at sales conducted under
paragraph (2)(I).'.
SEC. 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.
`(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.
`(1) IN GENERAL- Notwithstanding any provision of Federal law requiring
the Secretary to approve individual Indian leases of individual Indian
trust or restricted land, where the owners of all of the undivided trust
or restricted interests in a parcel of land have submitted applications
to the Secretary pursuant to subsection (a), and the Secretary has
approved such applications under subsection (d), such owners may,
without further approval by the Secretary, enter into a lease of the
parcel for agricultural purposes for a term not to exceed 10 years.
`(2) RULE OF CONSTRUCTION- No such lease shall be effective until it has
been executed by the owners of all undivided trust or restricted
interests in the parcel.
`(d) APPROVAL OF APPLICATIONS FOR OWNER MANAGEMENT-
`(1) IN GENERAL- Subject to the provisions of paragraph (2), the
Secretary shall approve an application for owner management submitted by
a qualified applicant pursuant to this section unless the Secretary has
reason to believe that the applicant is submitting the application as
the result of fraud or undue influence. No such application shall be
valid or considered if it is received by the Secretary prior to the date
that is 1 year after the date on which notice is published pursuant to
section 8(a)(4) of the American Indian Probate Reform Act of 2004.
`(2) COMMENCEMENT OF OWNER-MANAGED STATUS- Notwithstanding the approval
of 1 or more applications pursuant to paragraph (1), no trust or
restricted interest in a parcel of land shall acquire owner-managed
status until applications for all of the trust or restricted interests
in such parcel of land have been submitted to and approved by the
Secretary pursuant to this section.
`(e) VALIDITY OF LEASES- No lease of trust or restricted interests in a
parcel of land that is owner-managed under this section shall be valid or
enforceable against the owners of such interests, or against the land, the
interest or the United States, unless such lease--
`(1) is consistent with, and entered into in accordance with, the
requirements of this section; or
`(2) has been approved by the Secretary in accordance with other Federal
laws applicable to the leasing of trust or restricted land.
`(f) LEASE REVENUES- The Secretary shall not be responsible for the
collection of, or accounting for, any lease revenues accruing to any
interests under a lease authorized by subsection (e), so long as such
interest is in owner-managed status under the provisions of this section.
`(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.
`(1) For purposes of subsection (d)(1), the term `qualified applicant'
means--
`(A) a person over the age of 18 who owns a trust or restricted
interest in a parcel of land; and
`(B) the parent or legal guardian of a minor or incompetent person
who owns a trust or restricted interest in a parcel of land.
`(2) For purposes of this section, the term `owner-managed status'
means, with respect to a trust or restricted interest, that--
`(A) the interest is a trust or restricted interest in a parcel of
land for which applications covering all trust or restricted
interests in such parcel have been submitted to and approved by the
Secretary pursuant to subsection (d);
`(B) the interest may be leased without approval of the Secretary
pursuant to, and in a manner that is consistent with, the
requirements of this section; and
`(C) no revocation has occurred under subsection (h)(2).
`(j) SECRETARIAL APPROVAL OF OTHER TRANSACTIONS- Except with respect to the
specific lease transaction described in paragraph (1) of subsection (c),
interests that acquire owner-managed status under the provisions of this
section shall continue to be subject to all Federal laws requiring the
Secretary to approve transactions involving trust or restricted land
(including leases with terms of a duration in excess of 10 years) that would
otherwise apply to such interests if the interests had not acquired
owner-managed status under this section.
`(k) EFFECT OF SECTION- Subject to subsections (c), (f), and (h), nothing in
this section diminishes or otherwise affects any authority or responsibility
of the Secretary with respect to an interest in trust or restricted land.'.
SEC. 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.
`(C) The Indian tribe with jurisdiction over the interest, or the
Secretary on behalf of such Indian tribe.
`(3) REQUEST TO PURCHASE; AUCTION; CONSENT REQUIREMENTS- No sale of an
interest in probate shall occur under this subsection unless--
`(A) an eligible purchaser described in paragraph (2) submits a
written request to purchase prior to the distribution of the
interest to heirs or devisees of the decedent and in accordance with
any regulations of the Secretary; and
`(B) except as provided in paragraph (5), the heirs or devisees of
such interest, and the decedent's surviving spouse, if any,
receiving a life estate under section 207(a)(2) (A) or (D) consent
to the sale.
If the Secretary receives more than 1 request to purchase the same
interest, the Secretary shall sell the interest by public auction or
sealed bid (as determined by the Secretary) at not less than the
appraised fair market value to the eligible purchaser submitting the
highest bid.
`(4) APPRAISAL AND NOTICE- Prior to the sale of an interest pursuant to
this subsection, the Secretary shall--
`(A) appraise the interest at its fair market value in accordance
with this Act;
`(B) provide eligible heirs, other devisees, and the Indian tribe
with jurisdiction over the interest with written notice, sent by
first class mail, that the interest is available for purchase in
accordance with this subsection; and
`(C) if the Secretary receives more than 1 request to purchase the
interest by a person described in subparagraph (B), provide notice
of the manner (auction or sealed bid), time and place of the sale, a
description, and the appraised fair market value, of the interest to
be sold--
`(i) to the heirs or other devisees and the Indian tribe with
jurisdiction over the interest, by first class mail; and
`(ii) to all other eligible purchasers, by posting written
notice in at least 5 conspicuous places in the vicinity of the
place of hearing.
`(5) SMALL UNDIVIDED INTERESTS IN INDIAN LANDS-
`(A) IN GENERAL- Subject to subparagraph (B), the consent of a
person who is an heir otherwise required under paragraph (3)(B)
shall not be required for the auction and sale of an interest at
probate under this subsection if--
`(i) the interest is passing by intestate succession; and
`(ii) prior to the auction the Secretary determines in the
probate proceeding that the interest passing to such heir
represents less than 5 percent of the entire undivided ownership
of the parcel of land as evidenced by the Secretary's records as
of the time the determination is made.
`(B) EXCEPTION- Notwithstanding subparagraph (A), the consent of
such heir shall be required for the sale at probate of the heir's
interest if, at the time of the decedent's death, the heir was
residing on the parcel of land of which the interest to be sold was
a part.
`(6) DISTRIBUTION OF PROCEEDS- Proceeds from the sale of interests under
this subsection shall be distributed to the heirs, devisees, or spouse
whose interest was sold in accordance with the values of their
respective interests. The proceeds attributable to an heir or devisee
shall be held in an account as trust personalty if the interest sold
would have otherwise passed to the heir or devisee in trust or
restricted status.';
(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
(I) by striking the paragraph heading and inserting the
following:
(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
(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--
(cc) by striking the period at the end and inserting `; or'; and
(dd) by adding at the end the following:
`(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 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
(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
`(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).
`(A) IN GENERAL- Until the Secretary removes a lien from an interest
in land under paragraph (1)--
`(i) any lease, resource sale contract, right-of-way, or other
document evidencing a transaction affecting the interest shall
contain a clause providing that all revenue derived from the
interest shall be paid to the Secretary; and
`(ii) any revenue derived from any interest acquired by the
Secretary in accordance with section 213 shall be deposited in
the fund created under section 216.
`(B) APPROVAL OF TRANSACTIONS- Notwithstanding section 16 of the Act
of June 18, 1934 (commonly known as the `Indian Reorganization Act')
(25 U.S.C. 476), or any other provision of law, until the Secretary
removes a lien from an interest in land under paragraph (1), the
Secretary may approve a transaction covered under this section on
behalf of an Indian tribe.
`(3) REMOVAL OF LIENS AFTER FINDINGS- The Secretary may remove a lien
referred to in paragraph (1) if the Secretary makes a finding that--
`(A) the costs of administering the interest from which revenue
accrues under the lien will equal or exceed the projected revenues
for the parcel of land involved;
`(B) in the discretion of the Secretary, it will take an
unreasonable period of time for the parcel of land to generate
revenue that equals the purchase price paid for the interest; or
`(C) a subsequent decrease in the value of land or commodities
associated with the parcel of land make it likely that the interest
will be unable to generate revenue that equals the purchase price
paid for the interest in a reasonable time.
`(4) REMOVAL OF LIENS UPON PAYMENT INTO THE ACQUISITION FUND- The
Secretary shall remove a lien referred to in paragraph (1) upon payment
of an amount equal to the purchase price of that interest in land into
the Acquisition Fund created under section 2215 of this title, except
where the tribe with jurisdiction over such interest in land authorizes
the Secretary to continue the lien in order to generate additional
acquisition funds.
`(5) OTHER REMOVAL OF LIENS- The Secretary may, in consultation with
tribal governments and other entities described in section 213(b)(3),
periodically remove liens referred to in paragraph (1) from interests in
land acquired by the Secretary.';
(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
(I) in the matter preceding subparagraph (A), by striking
`Subject to paragraph (2), all' and inserting `All';
(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 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:
`(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 co-owners holds a total
undivided trust or restricted interest in the parcel that is greater
than 10 percent of the entire undivided ownership of the parcel; or
`(B) 100 or more co-owners of undivided trust or restricted
interests;
`(7) `land' means any real property, and includes within its meaning for
purposes of this Act improvements permanently affixed to real property;
`(8) `person' or `individual' means a natural person;
`(9) `eligible heirs' means, for purposes of section 207 (25 U.S.C.
2206), any of a decedent's children, grandchildren, great grandchildren,
full siblings, half siblings by blood, and parents who are--
`(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):'.
(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:
`(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 `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--
`(A) develop a pilot project for the creation of legal entities such
as private or family trusts, partnerships corporations, or other
organizations to improve, facilitate, and assist in the efficient
management of interests in trust or restricted lands or funds owned
by Indian family members and relatives; and
`(B) develop proposed rules, regulations, and guidelines to
implement the pilot project, including--
`(i) the criteria for establishing such legal entities;
`(ii) reporting and other requirements that the Secretary
determines to be appropriate for administering such entities;
and
`(iii) provisions for suspending or revoking the authority of an
entity to engage in activities relating to the management of
trust or restricted assets under the pilot project in order to
protect the interests of the beneficial owners of such assets.
`(2) PRIMARY PURPOSES; LIMITATION; APPROVAL OF TRANSACTIONS; PAYMENTS BY
SECRETARY-
`(A) PURPOSES- The primary purpose of any entity organized under the
pilot project shall be to improve, facilitate, and assist in the
management of interests in trust or restricted land, held by 1 or
more persons, in furtherance of the purposes of this Act.
`(B) LIMITATION- The organization or activities of any entity under
the pilot project shall not be construed to impair, impede, replace,
abrogate, or modify in any respect the trust duties or
responsibilities of the Secretary, nor shall anything in this
subsection or in any rules, regulations, or guidelines developed
under this subsection enable any private or family trustee of trust
or restricted interests in land to exercise any powers over such
interests greater than that held by the Secretary with respect to
such interests.
`(C) SECRETARIAL APPROVAL OF TRANSACTIONS- Any transaction involving
the lease, use, mortgage or other disposition of trust or restricted
land or other trust assets administered by or through an entity
under the pilot project shall be subject to approval by the
Secretary in accordance with applicable Federal law.
`(D) PAYMENTS- The Secretary shall have the authority to make
payments of income and revenues derived from trust or restricted
land or other trust assets administered by or through an entity
participating in the pilot project directly to the entity, in
accordance with requirements of the regulations adopted pursuant to
this subsection.
`(3) LIMITATIONS ON PILOT PROJECT-
`(A) NUMBER OF ORGANIZATIONS- The number of entities established
under the pilot project authorized by this subsection shall not
exceed 30.
`(B) REGULATIONS REQUIRED- No entity shall commence activities under
the pilot project authorized by this subsection until the Secretary
has adopted final rules and regulations under paragraph (1)(B).
`(4) REPORT TO CONGRESS- Prior to the expiration of the pilot project
provided for under this subsection, the Secretary shall submit a report
to Congress stating--
`(A) a description of the Secretary's consultation with Indian
tribes, individual landowner associations, Indian advocacy
organizations, and other parties consulted with regarding the
development of rules and regulations for the creation and management
of interests in trust and restricted lands under the pilot project;
`(B) the feasibility of accurately monitoring the performance of
legal entities such as those involved in the pilot project, and the
effectiveness of such entities as mechanisms to manage and protect
trust assets;
`(C) the impact that the use of entities such as those in the pilot
project may have with respect to the accomplishment of the goals of
the Indian Land Consolidation Act (25 U.S.C. 2201 et seq.); and
`(D) any recommendations that the Secretary may have regarding
whether to adopt a permanent program as a management and
consolidation measure for interests in trust or restricted lands.
`(n) NOTICE TO HEIRS- Prior to holding a hearing to determine the heirs to
trust or restricted property, or making a decision determining such heirs,
the Secretary shall seek to provide actual written notice of the proceedings
to all heirs. Such efforts shall include--
`(1) a search of publicly available records and Federal records,
including telephone and address directories and including electronic
search services or directories;
`(2) an inquiry with family members and co-heirs of the property;
`(3) an inquiry with the tribal government of which the owner is a
member, and the tribal government with jurisdiction over the property,
if any; and
`(4) if the property is of a value greater than $2,000, engaging the
services of an independent firm to conduct a missing persons search.
`(1) For purposes of this subsection and subsection (m), an heir may be
presumed missing if--
`(A) such heir's whereabouts remain unknown 60 days after completion
of notice efforts under subsection (m); and
`(B) in the proceeding to determine a decedent's heirs, the
Secretary finds that the heir has had no contact with other heirs of
the decedent, if any, or with the Department relating to trust or
restricted land or other trust assets at any time during the 6-year
period preceding the hearing to determine heirs.
`(2) Before the date for declaring an heir missing, any person may
request an extension of time to locate such heir. The Secretary shall
grant a reasonable extension of time for good cause.
`(3) An heir shall be declared missing only after a review of the
efforts made in the heirship proceeding and a finding has been made that
this subsection has been complied with.
`(4) An heir determined to be missing pursuant to this subsection shall
be deemed to have predeceased the decedent for purposes of descent and
devise of trust or restricted land and trust personalty within that
decedent's estate.'.
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.
`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.
(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
(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).
SEC. 9. SEVERABILITY.
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.
SEC. 10. REGULATIONS.
The Secretary is authorized to adopt such regulations as may be necessary to
implement the provisions of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
END
|
|
