[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 550 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 550
To amend the Indian Land Consolidation Act to improve provisions
relating to probate of trust and restricted land, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 6, 2003
Mr. Campbell (for himself, Mr. Inouye, and Mr. Thomas) introduced the
following bill; which was read twice and referred to the Committee on
Indian Affairs
_______________________________________________________________________
A BILL
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 2003''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Act of February 8, 1887 (commonly known as the
``Indian General Allotment Act'') (25 U.S.C. 331 et seq.),
which authorized the allotment of Indian reservations, did not
permit Indian allotment owners to provide for the testamentary
disposition of the land that was allotted to them;
(2) that Act provided that allotments would descend
according to State law of intestate succession based on the
location of the allotment;
(3) the reliance of the Federal Government on the State law
of intestate succession with respect to the descent of
allotments has resulted in numerous problems affecting Indian
tribes, members of Indian tribes, and the Federal Government,
including--
(A) the increasingly fractionated ownership of
trust and restricted land as that land is inherited by
successive generations of owners as tenants in common;
(B) the application of different rules of intestate
succession to each interest of a decedent in or to
trust or restricted land if that land is located within
the boundaries of more than 1 State, which
application--
(i) makes probate planning unnecessarily
difficult; and
(ii) impedes efforts to provide probate
planning assistance or advice;
(C) the absence of a uniform general probate code
for trust and restricted land, which makes it difficult
for Indian tribes to work cooperatively to develop
tribal probate codes; and
(D) the failure of Federal law to address or
provide for many of the essential elements of general
probate law, either directly or by reference, which--
(i) is unfair to the owners of trust and
restricted land (and heirs and devisees of
owners); and
(ii) makes probate planning more difficult;
and
(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;
(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.
SEC. 3. INDIAN PROBATE REFORM.
(a) Testamentary 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) 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 enacted in
accordance with section 206, the owner of an interest
in trust or restricted land may devise such an interest
to--
``(i) an Indian tribe with jurisdiction
over the land; or
``(ii) any Indian in trust or restricted
status (or as a passive trust interest as
provided for in section 207A).
``(B) Status.--The devise of an interest in trust
or restricted land to an Indian under subparagraph
(A)(ii) shall not alter the status of such an interest
as a trust or restricted interest unless the testator
provides that the interest is to be held as a passive
trust interest.
``(2) Devise of trust or restricted land in passive trust
or fee.--
``(A) In general.--Except as provided under any
applicable Federal law, any interest in trust or
restricted land that is not devised in accordance with
paragraph (1) may be devised only--
``(i) as a life estate to any non-Indian
person, with the remainder being devised only
in accordance with clause (ii), subparagraph
(C), or paragraph (1)(A);
``(ii) to the lineal descendant or heir of
the first or second degree of the testator or,
if the testator does not have an heir of the
first or second degree or a lineal descendant,
to any lineal descendant of an Indian
grandparent of the testator, as a passive trust
interest (referred to in this section as an
`eligible passive trust devisee'); or
``(iii) in fee in accordance with
subparagraph (C).
``(B) Presumed devise of passive trust interest.--
Any devise to an eligible passive trust devisee, or any
devise of a remainder interest from the devise of a
life estate under subparagraph (A)(ii), that does not
indicate whether the interest is devised as a passive
trust interest or a fee interest shall be considered to
devise a passive trust interest.
``(C) Devise of a fee interest.--Subject to
subparagraph (D), any interest in trust or restricted
land that is not devised in accordance with paragraph
(1), or devised to an eligible passive trust devisee in
accordance with subparagraph (A), may be devised to a
non-Indian in fee.
``(D) Limitation.--Any interest in trust or
restricted land that is subject to section 4 of the Act
of June 18, 1934 (25 U.S.C. 464), may be devised only
in accordance with--
``(i) that section;
``(ii) subparagraph (A); or
``(iii) paragraph (1).
``(3) Devise of a passive trust interest.--
``(A) In general.--The holder of an interest in
trust or restricted land that is held as a passive
trust interest may devise the interest as a passive
trust interest only to--
``(i)(I) any Indian; or
``(II) the Indian tribe that exercises
jurisdiction over the interest;
``(ii) the lineal descendants, or heirs of
the first or second degree, of the holder;
``(iii) any living descendant of the
decedent from whom the holder acquired the
interest by devise or descent; or
``(iv) any person that owns a preexisting
interest or a passive trust interest in the
same parcel of land, if the preexisting
interest is held in trust or restricted status
or in passive trust status.
``(B) Ineligible devisees and intestate
succession.--A passive trust interest that is devised
to a person that is not eligible under subparagraph (A)
or that is not disposed of by a valid will shall pass
in accordance with the applicable law of intestate
succession as provided for in subsection (b).''.
(b) Nontestamentary 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) Nontestamentary Disposition.--
``(1) Rules of descent.--Subject to any applicable Federal
law relating to the devise or descent of trust or restricted
property, any interest in trust or restricted land that is not
disposed of by a valid will--
``(A) shall descend according to a tribal probate
code that is approved in accordance with section 206;
or
``(B) in the case of an interest in trust or
restricted land to which such a code does not apply,
shall descend in accordance with--
``(i) paragraphs (2) through (7);
``(ii) section 207A; and
``(iii) other applicable Federal law.
``(2) No applicable code.--An intestate interest to which a
code described in paragraph (1) does not apply--
``(A) shall include--
``(i) an interest acquired by a decedent
through devise or inheritance (referred to in
this subsection as a `devise or inheritance
interest'); or
``(ii) an interest acquired by a decedent
by any means other than devise or inheritance
(referred to in this subsection as an `acquired
interest'), if--
``(I) the decedent--
``(aa) acquired additional
undivided interest in the same
parcel in which the interest is
held, by a means other than
devise or inheritance; or
``(bb) acquired land
adjoining the parcel of land in
which the interest is held; or
``(II) the parcel of land in which
the interest is held includes the
residence of the spouse of the
decedent; and
``(B) shall descend as follows:
``(i) Surviving indian spouse.--
``(I) In general.--If a decedent is
survived by an Indian spouse, and the
estate of the decedent includes 1 or
more acquired interests, the spouse of
the decedent shall receive all of the
acquired interests.
``(II) Devise or inheritance
interests.--If a decedent is survived
by an Indian spouse, and the estate of
the decedent includes 1 or more devise
or inheritance interests--
``(aa) if the decedent is
not survived by an Indian heir
of the first or second degree,
the spouse of the decedent
shall receive all of the devise
or inheritance interests; and
``(bb) if the decedent is
survived by an Indian heir of
the first or second degree, the
devise or inheritance interest
of the decedent shall descend
in accordance with paragraph
(3)(A).
``(ii) Surviving non-indian spouse.--
``(I) In general.--If a decedent is
survived by a non-Indian spouse, and
the estate of the decedent includes 1
or more acquired interests--
``(aa) the spouse of the
decedent shall receive a life
estate in each acquired
interest; and
``(bb)(AA) if the decedent
is survived by an Indian heir
of the first or second degree,
the remainder interests shall
descend in accordance with
paragraph (3)(A); and
``(BB) if the decedent is
not survived by an Indian heir
of the first or second degree,
the remainder interest shall
descend in accordance with
paragraph (3)(C).
``(II) Devise or inheritance
interests.--If the estate of a decedent
described in subclause (I) includes 1
or more devise or inheritance
interests--
``(aa) if the decedent is
survived by an Indian heir of
the first or second degree, the
devise or inheritance interests
shall descend in accordance
with paragraph (3)(A); and
``(bb) if the decedent is
not survived by an Indian heir
of the first or second degree,
the devise or inheritance
interests shall descend in
accordance with paragraph
(3)(C).
``(iii) No surviving spouse.--If a decedent
is not survived by a spouse, and the estate of
the decedent includes 1 or more acquired
interests or 1 or more devise or inheritance
interests--
``(I) if the decedent is survived
by an Indian heir of the first or
second degree, the acquired interests
or devise or inheritance interests
shall descend in accordance with
paragraph (3)(A); and
``(II) if the decedent is not
survived by an Indian heir of the first
or second degree, the acquired
interests or devise or inheritance
interests shall descend in accordance
with paragraph (3)(C).
``(3) Rules governing descent of estate.--
``(A) Indian heirs.--For the purpose of this
section, an Indian heir of the first or second degree
shall inherit in the following order:
``(i) To the Indian children of the
decedent (or if 1 or more of those Indian
children do not survive the decedent, the
Indian children of the deceased child of the
decedent, by right of representation) shall
inherit in equal shares.
``(ii) If the decedent has no Indian
children (or grandchildren that inherit by
right of representation under clause (i)), to
the Indian brothers and sisters of the
decedent, in equal shares.
``(iii) If the decedent has no Indian
brothers or sisters, to the Indian parent or
parents of the decedent.
``(B) Right of representation.--In any case
involving the determination of a right of
representation--
``(i) each interest in trust land shall be
equally divided into a number of shares that
equals the sum obtained by adding--
``(I) the number of surviving heirs
in the nearest degree of kinship; and
``(II) the number of deceased
individuals in that same degree, if
any, who left issue who survive the
decedent;
``(ii) each surviving heir described in
clause (i)(I) shall receive 1 share; and
``(iii)(I) each deceased individual
described in clause (i)(II) shall receive 1
share; and
``(II) that share shall be divided equally
among the surviving issue of the deceased
person.
``(C) No indian heirs.--
``(i) Definition of collateral heir.--In
this subparagraph, the term `collateral heir'
means an aunt, uncle, niece, nephew, or first
cousin of a decedent.
``(ii) No heirs.--If a decedent does not
have an Indian heir of the first or second
degree, an interest shall descend to any Indian
collateral heir who is a co-owner of an
interest owned by the decedent.
``(iii) Multiple collateral heirs.--If--
``(I) an Indian collateral heir
owns an interest to which clause (ii)
applies that is larger than the
interest held by any other such
collateral heir, the interest shall
descend to the collateral heir that
owns the largest undivided interest in
the parcel; or
``(II) 2 or more collateral heirs
own equal shares in an interest to
which clause (ii) applies, the interest
shall be divided equally among those
collateral heirs.
``(iv) No ownership.--If none of the Indian
collateral heirs of a decedent owns an interest
to which clause (ii) applies, subject to clause
(v), the interest shall descend to the Indian
tribe that exercises jurisdiction over the
parcel of trust or restricted land involved.
``(v) Acquisition of interest.--
``(I) In general.--Notwithstanding
clause (iv), an Indian co-owner 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 or to the land.
``(II) Multiple co-owners.--If more
than 1 Indian co-owner (including the
Indian tribe referred to in clause
(iv)) offers to pay for an interest
described in subclause (I), the highest
bidder shall acquire the interest.
``(4) Special rule relating to survival.--In the case of
intestate succession under this section, if an individual who
fails to survive a 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) Pretermitted spouses and children.--
``(A) Spouses.--
``(i) In general.--Except as provided in
clause (ii), if the surviving spouse of a
testator married the testator after the
testator executed the will of the testator, the
surviving spouse shall receive the intestate
share in trust or restricted land that the
spouse would have received if the testator had
died intestate.
``(ii) Exception.--Clause (i) shall not
apply to an interest in trust or restricted
land in a case in which--
``(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.
``(B) Children.--
``(i) In general.--If a testator executed
the will of the testator before the birth or
adoption of 1 or more children of the testator,
and the omission of the children from the will
is a product of inadvertence rather than an
intentional omission, the children shall share
in the intestate interests of the decedent in
trust or restricted land 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.
``(6) Divorce.--
``(A) Surviving spouse.--
``(i) In general.--An individual who is
divorced from a decedent, or whose marriage to
the decedent has been annulled, shall not be
considered to be a surviving spouse unless, by
virtue of a subsequent marriage, the individual
is married to the decedent at the time of death
of the decedent.
``(ii) Separation.--A decree of separation
that does not dissolve a marriage, and
terminate the status of husband and wife, shall
not be considered a divorce for the purpose of
this subsection.
``(iii) No effect on adjudications.--
Nothing in clause (i) prevents an entity
responsible for adjudicating an interest in
trust or restricted land from giving effect to
a property right settlement 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, on the effective date
of the divorce or annulment, any disposition of
interests in trust or restricted land 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.
``(7) Notice.--
``(A) In general.--To the maximum extent
practicable, the Secretary shall notify each owner of
trust and restricted land of the provisions of this
Act.
``(B) Combined notices.--The notice under
subparagraph (A) may, at the discretion of the
Secretary, be provided with the notice required under
section 207(g).''.
(c) 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.--For purpose of subsections (a) and (b),
any reference to applicable Federal law includes--
``(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 section amends or
otherwise affects any law described in paragraph (1), or any
other Federal law, that provides for the devise and descent of
any trust or restricted land located on a specific Indian
reservation.''.
(d) Passive Trust Interest Status for Trust or Restricted Land.--
The Indian Land Consolidation Act is amended by inserting after section
207 (25 U.S.C. 2206) the following:
``SEC. 207A. PASSIVE TRUST INTEREST STATUS FOR TRUST OR RESTRICTED
LAND.
``(a) Passive Trust Interest Status.--
``(1) In general.--The owner of an interest in trust or
restricted land may submit to the Secretary an application
requesting that the interest be held in passive trust interest
status.
``(2) Authority.--An application under paragraph (1) may
authorize the Secretary to amend any existing lease or
agreement with respect to the interest that is the subject of
the application.
``(b) Approval.--On the approval of an application by the Secretary
under subsection (a), an interest in trust or restricted land covered
by the application shall be held as a passive trust interest in
accordance with this section.
``(c) Requirements.--Except as provided in this section, an
interest in trust or restricted land that is held as a passive trust
interest under this section--
``(1) shall continue to be covered under any applicable
tax-exempt status, and continue to be subject to any
restrictions on alienation, until the interest is patented in
fee;
``(2) may, without the approval of the Secretary, be--
``(A) leased for a period of not to exceed 25
years;
``(B) mortgaged in accordance with the Act of March
29, 1956 (25 U.S.C. 483a); or
``(C) sold or conveyed to--
``(i) an Indian;
``(ii) the Indian tribe that exercises
jurisdiction over the interest; or
``(iii) a co-owner of an interest in the
parcel of land in which the interest is held,
if the co-owner owns a pre-existing trust,
restricted interest, or a passive trust
interest in the parcel; and
``(3) may be subject to an ordinance or resolution enacted
under subsection (d).
``(d) Ordinance or Resolution for Removal of Status.--
``(1) In general.--The governing body of the Indian tribe
that exercises jurisdiction over an interest in trust or
restricted land that is held as a passive trust interest in
accordance with this section may enact an ordinance or
resolution to permit the owner of the interest to apply to the
Secretary for the removal of the trust or restricted status of
any portion of the land that is subject to the jurisdiction of
the Indian tribe.
``(2) Review by secretary.--The Secretary shall review, and
may approve, an ordinance or resolution enacted by an Indian
tribe in accordance with paragraph (1) if the Secretary
determines that the ordinance or resolution--
``(A) is consistent with this Act; and
``(B) would not increase fractionated ownership of
Indian land.
``(e) Revenues or Royalties.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary shall not be responsible for the collection of or
accounting for any lease revenues or royalties accruing to an
interest held as a passive trust interest by any person under
this section.
``(2) Exception.--Paragraph (1) shall not apply to an
interest described in that paragraph if the Secretary approves
an application to take the interest into active trust status on
behalf of an Indian or an Indian tribe in accordance with
regulations promulgated by the Secretary.
``(3) Authority of secretary.--Nothing in this subsection
alters any authority or responsibility of the Secretary with
respect to an interest in trust or restricted land held in
active trust status (including an undivided interest included
in the same parcel of land as an undivided passive trust
interest).
``(f) Jurisdiction Over Passive Trust Interest.--With respect to an
interest in trust or restricted land that is devised or held as a
passive trust interest under this section--
``(1) an Indian tribe that exercises jurisdiction over such
an interest shall continue to exercise jurisdiction over the
land that is held as a passive trust interest; and
``(2) any person holding, leasing, or otherwise using the
land shall be considered to consent to the jurisdiction of the
Indian tribe with respect to the use of the land (including any
effects associated with any use of the land).
``(g) Probate of Passive Trust Interests.--
``(1) In general.--An interest in trust or restricted land
that is held as a passive trust interest under this section
shall be subject to--
``(A) probate by the Secretary in accordance with
this Act; and
``(B) all other laws applicable to the probate of
trust or restricted land.
``(2) Commencement of probate.--Any interested party may
file an application to commence the probate of an interest in
trust or restricted land held as a passive trust interest.
``(h) Regulations.--The Secretary shall promulgate such regulations
as are necessary to carry out this section.''.
SEC. 4. PARTITION OF INDIAN LAND.
Section 205 of the Indian Land Consolidation Act (25 U.S.C. 2204)
is amended by adding at the end the following:
``(c) Partition.--
``(1) Definitions.--In this subsection:
``(A) Eligible indian tribe.--The term `eligible
Indian tribe' means an Indian tribe that--
``(i) owns eligible land; and
``(ii) consents to partition of the
eligible land.
``(B) Eligible land.--The term `eligible land'
means an undivided parcel of land that--
``(i) is located within the reservation of
an Indian tribe; or
``(ii) is otherwise under the jurisdiction
of an Indian tribe.
``(2) Requirements.--Notwithstanding any other provision of
law, in accordance with this subsection and subject to
paragraphs (3), (4), and (5)--
``(A) an eligible Indian tribe may apply to the
Secretary for the partition of a parcel of eligible
land; and
``(B) the Secretary may commence a process for
partitioning the eligible land under this subsection
if--
``(i) the eligible Indian tribe meets the
applicable ownership requirement under
subparagraph (A) or (B) of paragraph (3); or
``(ii) the Secretary determines that it is
reasonable to believe that the partition of the
eligible land owned would be in accordance with
paragraph (3)(C).
``(3) Tribal ownership.--A parcel of eligible land may be
partitioned under this subsection if, with respect to the
eligible Indian tribe involved--
``(A) the eligible Indian tribe owns 50 percent or
more of the undivided interest in the parcel;
``(B) the eligible Indian tribe is the owner of the
largest quantity of undivided interest in the parcel;
or
``(C) the owners of undivided interests equal to at
least 50 percent of the undivided interest in the
parcel (including any undivided interest owned by the
eligible Indian tribe) consent or do not object to the
partition.
``(4) Tribal consent.--A parcel of land that is located
within the reservation of an Indian tribe or otherwise under
the jurisdiction of an Indian tribe shall be partitioned under
this subsection only if the Indian tribe does not object to the
partition.
``(5) Applicability.--This subsection shall not apply to
any parcel of land that is the bona fide residence of any
person unless the person consents to the partition in writing.
``(6) Partition in kind.--
``(A) In general.--The Secretary shall commence the
partition process described in subparagraph (B) if--
``(i) an eligible Indian tribe applies to
partition eligible land under this paragraph;
and
``(ii)(I) the Secretary determines that the
eligible Indian tribe meets the applicable
ownership requirements of subparagraph (A) or
(B) of paragraph (3); or
``(II) the Secretary determines that it is
reasonable to believe that the partition would
be in accordance with paragraph (3)(C).
``(B) Partition Process.--In carrying out any
partition under this paragraph, the Secretary shall--
``(i) provide, to each owner of any
undivided interest in eligible land to be
partitioned, through publication or other
appropriate means, notice of the proposed
partition;
``(ii) make available to any interested
party a copy of any proposed partition plan
submitted by an eligible Indian tribe or
proposed by the Secretary; and
``(iii) review--
``(I) any proposed partition plan
submitted by any owner of an undivided
interest in the eligible land; and
``(II) any comments or objections
concerning a partition, or any proposed
plan of partition, submitted by any
owner or any other interested party.
``(C) Determination not to partition.--If the
Secretary determines that a parcel of eligible land
cannot be partitioned in a manner that is fair and
equitable to the owners of the eligible land, the
Secretary shall inform each owner of the eligible land
of--
``(i) the determination of the Secretary;
and
``(ii) the right of the owner to appeal the
determination.
``(D) Partition with consent of eligible indian
tribe.--If the Secretary determines that a parcel of
eligible land may be partitioned in a manner that is
fair and equitable to the owners of the eligible land,
and the applicable eligible Indian tribe meets the
applicable ownership requirements under subparagraph
(A) or (B) of paragraph (3), the Secretary shall--
``(i) approve a plan of partition;
``(ii) provide notice to the owners of the
eligible land of the determination of the
Secretary;
``(iii) make a copy of the plan of
partition available to each owner of the
eligible land; and
``(iv) inform each owner of the right to
appeal the determination of the Secretary to
partition the eligible land in accordance with
the plan.
``(E) Partition with consent; implied consent.--If
the Secretary determines that a parcel of eligible land
may be partitioned in a manner that is fair and
equitable to the owners of the eligible land, but the
eligible Indian tribe involved does not meet the
applicable ownership requirements under subparagraph
(A) or (B) of paragraph (3), the Secretary shall--
``(i)(I) make a plan of partition available
to the owners of the parcel; and
``(II) inform the owners that the eligible
land will be partitioned in accordance with the
plan if the owners of 50 percent or more of
undivided ownership interest in the eligible
land--
``(aa) consent to the partition; or
``(bb) do not object to the
partition by such date as may be
established by the Secretary; and
``(ii)(I) if the owners of 50 percent or
more of undivided ownership interest in the
eligible land consent to the partition or do
not object by a date established by the
Secretary under clause (i)(II)(bb), inform the
owners of the eligible land that--
``(aa) the plan for partition is
final; and
``(bb) the owners have the right to
appeal the determination of the
Secretary to partition the eligible
land; or
``(II) if the owners of 50 percent or more
of the undivided ownership interest in the
eligible land object to the partition, inform
the eligible Indian tribe of the objection.
``(F) Successive partition plans.--In carrying out
subparagraph (E) in accordance with paragraph (3)(C),
the Secretary may, in accordance with subparagraph
(E)--
``(i) approve 1 or more successive plans of
partition; and
``(ii) make those plans available to the
owners of the eligible land to be partitioned.
``(G) Plan of partition.--A plan of partition
approved by the Secretary in accordance with
subparagraph (D) or (E)--
``(i) may determine that 1 or more of the
undivided interests in a parcel of eligible
land are not susceptible to a partition in
kind;
``(ii) may provide for the sale or exchange
of those undivided interests to--
``(I) 1 or more of the owners of
undivided interests in the eligible
land; or
``(II) the Secretary in accordance
with section 213; and
``(iii) shall provide that the sale of any
undivided interest referred to in clause (ii)
shall be for not less than the fair market
value of the interest.
``(7) Partition by sale.--
``(A) In general.--The Secretary shall commence the
partition process described in subparagraph (B) if--
``(i) an eligible Indian tribe applies to
partition a parcel of eligible land under this
subsection; and
``(ii)(I) the Secretary determines that the
Indian tribe meets the applicable ownership
requirements of subparagraph (A) or (B) of
paragraph (3); or
``(II) the Secretary determines that it is
reasonable to believe that the partition would
be in accordance with paragraph (3)(C).
``(B) Partition process.--In carrying out any
partition of eligible land under this paragraph, the
Secretary--
``(i) shall conduct a preliminary appraisal
of the eligible land;
``(ii) shall provide to the owners of the
eligible land, through publication or other
appropriate means--
``(I) notice of the application of
the eligible Indian tribe to partition
the eligible land; and
``(II) access to the preliminary
appraisal conducted in accordance with
clause (i);
``(iii) shall inform each owner of the
eligible land of the right to submit to the
Secretary comments relating to the preliminary
appraisal;
``(iv) may, based on comments received
under clause (iii), modify the preliminary
appraisal or provide for the conduct of a new
appraisal; and
``(v) shall--
``(I) issue a final appraisal for
the eligible land;
``(II) provide to the owners of the
eligible land and the appropriate
Indian tribes access to the final
appraisal; and
``(III) inform the Indian tribes of
the right to appeal the final
appraisal.
``(C) Purchase by eligible indian tribe.--If an
eligible Indian tribe enters into an agreement with the
Secretary to pay fair market value for eligible land
partitioned under this subsection, as determined by the
final appraisal of the eligible land issued under
subparagraph (B)(v)(I) (including any appraisal issued
by the Secretary after an appeal by the Indian tribe
under subparagraph (B)(v)(III)), and the eligible
Indian tribe meets the applicable ownership
requirements of subparagraph (A) or (B) of paragraph
(3), the Secretary shall--
``(i) provide to each owner of the eligible
land notice of the agreement; and
``(ii) inform the owners of the right to
appeal the decision of the Secretary to enter
into the agreement (including the right to
appeal any final appraisal of the parcel
referred to in subparagraph (B)(v)(III)).
``(D) Partition with consent; implied consent.--
``(i) In general.--If an eligible Indian
tribe agrees to pay fair market value for
eligible land partitioned under this
subsection, as determined by the final
appraisal of the eligible land issued under
subparagraph (B)(v)(I) (including any appraisal
issued by the Secretary after an appeal by the
Indian tribe under subparagraph (B)(v)(III)),
but does not meet the applicable ownership
requirements of subparagraph (A) or (B) of
paragraph (3), the Secretary shall--
``(I) provide to each owner of the
undivided interest in the eligible land
notice that the Indian tribe did not
meet the requirements; and
``(II) inform the owners that the
eligible land will be partitioned by
sale unless the partition is opposed by
the owners of 50 percent or more of the
undivided ownership interest in the
eligible land.
``(ii) Failure to object to partition.--If
the owners of 50 percent or more of undivided
ownership interest in or to a parcel of
eligible land consent to the partition of the
eligible land, or do not object to the
partition by such date as may be established by
the Secretary, the Secretary shall inform the
owners of the eligible land of the right to
appeal the determination of the Secretary to
partition the eligible land (including the
results of the final appraisal issued under
subparagraph (B)(v)(I)).
``(iii) Objection to partition.--If the
owners of 50 percent or more of the undivided
ownership interest in a parcel of eligible land
object to the partition of the eligible land--
``(I) the Secretary shall notify
the eligible Indian tribe of the
objection; and
``(II) the eligible Indian tribe
and the Secretary may agree to increase
the amount offered to purchase the
undivided ownership interests in the
eligible land.
``(8) Enforcement.--
``(A) In general.--If, with respect to a parcel of
eligible land, a partition in kind is approved under
subparagraph (D) or (E) of paragraph (6), or a
partition by sale is approved under paragraph (7)(C),
and the owner of an interest in or to the eligible land
fails to convey the interest to the Indian tribe, the
Indian tribe or the United States may--
``(i) bring a civil action in the United
States district court for the district in which
the eligible land is located; and
``(ii) request the court to issue an
appropriate order for the partition in kind, or
partition by sale to the Indian tribe, of the
eligible land.
``(B) Federal role.--With respect to any civil
action brought under subparagraph (A)--
``(i) the United States--
``(I) shall receive notice of the
civil action; and
``(II) may be a party to the civil
action; and
``(ii) the civil action shall not be
dismissed, and no relief requested shall be
denied, on the ground that the civil action is
against the United States or that the United
States is an indispensable party.''.
SEC. 5. 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 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
prevents 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 that exercises 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; and
``(iii) payment of fair market value in the
manner prescribed under subsection (c)(2).'';
and
(B) in subsection (c)--
(i) in paragraph (1)--
(I) by striking the paragraph
heading and inserting the following:
``(1) Authority.--
``(A) In general.--'';
(II) in the first sentence of
subparagraph (A) (as designated by
clause (i)), by striking ``section
207(a)(6)(A) of this title'' and
inserting ``section 207(a)(2)(A)(ii),
207(a)(2)(C), or 207(a)(3)''; and
(III) by striking the last sentence
and inserting the following:
``(B) Transfer.--The Secretary shall transfer
payments received under subparagraph (A) to any person
or persons who would have received an interest in land
if the interest had not been acquired by the Indian
tribe in accordance with this paragraph.''; and
(ii) in paragraph (2)--
(I) in subparagraph (A)--
(aa) by striking the
subparagraph heading and all
that follows through
``Paragraph (1) shall apply''
and inserting the following:
``(A) Nonapplicability to certain interests.--
``(i) In general.--Paragraph (1) shall not
apply'';
(bb) in clause (i) (as
designated by item (a)), by
striking ``if, while'' and
inserting the following: ``if--
``(I) while'';
(cc) by striking the period
at the end and inserting ``;
or''; and
(dd) by adding at the end
the following:
``(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 that exercises
jurisdiction over the land will have
the opportunity to acquire the interest
for fair market value if the interest
is offered for sale to an entity that
is not a member of the family of the
owner of the land.
``(ii) Recording of interest.--On request
by an Indian tribe described in clause
(i)(II)(bb), a restriction relating to the
acquisition by the Indian tribe of an interest
in a family farm involved shall be recorded as
part of the deed relating to the interest
involved.
``(iii) Mortgage and foreclosure.--Nothing
in clause (i)(II) prevents or limits the
ability of an owner of land to which that
clause applies to mortgage the land or limit
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)'';
(3) in section 207 (25 U.S.C. 2206)--
(A) in subsection (c)--
(i) by redesignating paragraph (3) as
paragraph (4); and
(ii) by inserting after paragraph (2) the
following:
``(3) Alienation of joint tenancy interests.--
``(A) In general.--With respect to any interest
held in joint tenancy in accordance with this
subsection--
``(i) nothing in this subsection alters the
ability of an owner of such an interest to
convey a life estate in the undivided joint
tenancy interest of the owner; and
``(ii) only the last remaining owner of
such an interest may devise or convey more than
a life estate in the interest.
``(B) Application of provision.--This paragraph
shall not apply--
``(i) to any conveyance, sale, or transfer
that is part of an agreement referred to in
subsection (e); or
``(ii) to a co-owner of a joint tenancy
interest.''; and
(B) in subsection (g)(5), by striking ``this
section'' and inserting ``subsections (a) and (b)'';
(4) in section 213 (25 U.S.C. 2212)--
(A) in subsection (a)(2), by striking ``(A) In
general.--'' and all that follows through ``the
Secretary shall submit'' and inserting ``The Secretary
shall submit'';
(B) 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 the pilot program under this section,
notwithstanding the existence of any otherwise applicable
policy, procedure, or regulation, through the elimination of
duplicate--
``(A) conveyance documents;
``(B) administrative proceedings; and
``(C) transactions.''; and
(C) in subsection (c)--
(i) in paragraph (1)--
(I) in subparagraph (A), by
striking ``landowner upon payment'' and
all that follows and inserting the
following: ``landowner--
``(i) on payment by the Indian landowner of
the amount paid for the interest by the
Secretary; or
``(ii) if--
``(I) the Indian referred to in
this subparagraph provides assurances
that the purchase price will be paid by
pledging revenue from any source,
including trust resources; and
``(II) the Secretary determines
that the purchase price will be paid in
a timely and efficient manner.''; and
(II) 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 of more of the undivided interests''
and inserting ``an undivided interest'';
(5) 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 Pilot 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) or (4).
``(2) Requirements.--
``(A) In general.--Until the Secretary removes a
lien from an interest in land under paragraph (1)--
``(i) any lease, resource sale contract,
right-of-way, or other document evidencing a
transaction affecting the interest shall
contain a clause providing that all revenue
derived from the interest shall be paid to the
Secretary; and
``(ii) any revenue derived from any
interest acquired by the Secretary in
accordance with section 213 shall be deposited
in the fund created under section 216.
``(B) Approval of transactions.--Notwithstanding
section 16 of the Act of June 18, 1934 (commonly known
as the `Indian Reorganization Act') (25 U.S.C. 476), or
any other provision of law, until the Secretary removes
a lien from an interest in land under paragraph (1),
the Secretary may approve a transaction covered under
this section on behalf of an Indian tribe.
``(3) Removal of lien 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) Other removal of lien.--In accordance with
regulations to be promulgated by the Secretary, and in
consultation with tribal governments and other entities
described in section 213(b)(3), the Secretary shall
periodically remove liens referred to in paragraph (1) from
interests in land acquired by the Secretary.'';
(6) in section 216 (25 U.S.C. 2215)--
(A) in subsection (a), by striking paragraph (2)
and inserting the following:
``(2) collect all revenues received from the lease, permit,
or sale of resources from interests acquired under section 213
or paid by Indian landowners under section 213.''; and
(B) in subsection (b)--
(i) in paragraph (1)--
(I) in the matter preceding
subparagraph (A), by striking ``Subject
to paragraph (2), all'' and inserting
``All'';
(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.'';
(7) in section 217 (25 U.S.C. 2216)--
(A) in subsection (e)(3), by striking ``prospective
applicants for the leasing, use, or consolidation of''
and insert ``any person that is leasing, using, or
consolidating, or is applying to lease, use, or
consolidate,''; and
(B) 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 trust or restricted land, the Indian tribe that
exercises 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 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--
``(i) the interest is offered for sale to
an entity that is not a member of the family of
the landowner; and
``(ii) the Indian tribe that exercises
jurisdiction over the land is afforded the
opportunity to purchase the interest.
``(B) Applicability.--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).''; and
(8) in section 219(b)(1)(A) (25 U.S.C. 2218(b)(1)(A)), by
striking ``100'' and inserting ``90''.
(b) Definition.--
(1) In general.--Section 202 of the Indian Land
Consolidation Act (25 U.S.C. 2201) is amended by striking
paragraph (2) and inserting the following:
``(2) Indian.--
``(A) In general.--The term `Indian' means--
``(i) any person that is a member of any
Indian tribe or is eligible to become a member
of any Indian tribe;
``(ii) subject to subparagraph (B), any
person that has been found to meet the
definition of `Indian' under any Federal law;
and
``(iii) with respect to the ownership,
devise, or descent of trust or restricted land
in the State of California, any person that
meets the definition of `Indians of California'
contained in the first section of the Act of
May 18, 1928 (25 U.S.C. 651), until otherwise
provided by Congress in accordance with section
809(b) of the Indian Health Care Improvement
Act (25 U.S.C. 1679(b)).
``(B) Exclusions.--The term `Indian' does not
include any person excluded from a definition described
in subparagraph (A)(ii) by a regulation promulgated by
the Secretary in a case in which the Secretary
determines that the definition is not consistent with
the purposes of this Act, unless the definition
described in subparagraph (A)(ii) is contained in a law
relating to--
``(i) agriculture;
``(ii) cultural resources;
``(iii) economic development;
``(iv) grazing;
``(v) housing;
``(vi) Indian schools;
``(vii) natural resources;
``(viii) any other program with benefits
intended to run to Indian landowners; or
``(ix) any land-related program that takes
effect after the date of enactment of this
subparagraph.''.
(2) Applicability.--Any exclusion referred to in the
amendment made by paragraph (1) shall apply only to a decedent
who dies after the date on which the Secretary of the Interior
promulgates a regulation providing for the exclusion.
(c) Mortgages and Deeds of Trust.--The Act of March 29, 1956 (25
U.S.C. 483a), is amended in the first sentence of subsection (a) by
inserting after ``any land'' the following: ``(including land owned by
any person in passive trust status in accordance with section 207A of
the Indian Land Consolidation Act)''.
(d) 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:''.
(e) 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
striking ``, in accordance with'' and all that follows through the
colon and 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):''.
SEC. 6. INHERITANCE OF CERTAIN TRUST OR RESTRICTED LAND.
(a) In General.--Section 5 of Public Law 98-513 (98 Stat. 2413) is
amended to read as follows:
``SEC. 5. INHERITANCE OF CERTAIN TRUST OR RESTRICTED LAND.
``(a) In General.--Notwithstanding any other provision of this
Act--
``(1) the owner of an interest in trust or restricted land
within the reservation may not devise an interest (including a
life estate under section 4) in the land that is less than 2.5
acres to more than 1 tribal member unless each tribal member
already holds an interest in that land; and
``(2) any interest in trust or restricted land within the
reservation that is less than 2.5 acres that would otherwise
pass by intestate succession (including a life estate in the
land under section 4), or that is devised to more than 1 tribal
member that is not described in paragraph (1), shall revert to
the Indian tribe, to be held in the name of the United States
in trust for the Indian tribe.
``(b) Notice.--
``(1) In general.--Not later than 180 days after the date
of enactment of the Indian Probate Reform Act of 2003, the
Secretary shall provide notice to owners of trust or restricted
land within the Lake Traverse Reservation of the provisions of
this section by--
``(A) direct mail;
``(B) publication in the Federal Register; or
``(C) publication in local newspapers.
``(2) Certification.--After providing notice under
paragraph (1), the Secretary shall--
``(A) certify that the requirements of this
subsection have been met; and
``(B) shall publish notice of that certification in
the Federal Register.''.
(b) Applicability.--This section and the amendment made by this
section shall not apply with respect to the estate of any person who
dies before the date that is 1 year after the date on which the
Secretary makes the required certification under section 5(b) of Public
Law 98-513 (98 Stat. 2413) (as amended by subsection (a)).
SEC. 7. EFFECTIVE DATE.
The amendments made by this Act shall not apply to the estate of an
individual who dies before the later of--
(1) the date that is 1 year after the date of enactment of
this Act; or
(2) the date specified in section 207(g)(5) of the Indian
Land Consolidation Act (25 U.S.C. 2206(g)(5)).
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