29–006 

108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–656 

AMERICAN INDIAN PROBATE REFORM ACT OF 2004 

SEPTEMBER 7, 2004.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. POMBO, from the Committee on Resources, 

submitted the following 

R E P O R T 

[To accompany S. 1721] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Resources, to whom was referred the bill (S. 

1721) to amend the Indian Land Consolidation Act to improve provisions relating to probate of trust and restricted land, and for 

other purposes, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. 

PURPOSE OF THE BILL

The purpose of S. 1721 is to amend the Indian Land Consolidation Act to improve provisions relating to probate of trust and restricted land, and for other purposes. 

BACKGROUND AND NEED FOR LEGISLATION

S. 1721 amends the Indian Land Consolidation Act (25 U.S.C. 

2201 et seq., ILCA) to address the worsening problem of fractionation of trust and restricted lands owned by individual Indians. 

The bill provides a new, uniform federal probate code applicable to 

such lands, incentives for Indians to write wills, and mechanisms 

for the Department of the Interior, tribes and individual Indians to 

consolidated highly fractionated Indian lands. 

Beginning under the General Allotment Act of 1887 (also called 

the ‘‘Dawes Act’’), Indian tribal lands were allocated to individual 

Indians in 40- to 160-acre allotments. The intention was to forcibly 

assimilate Indians by breaking up their reservations. This policy 

was deemed by Congress to be a failure and was accordingly ended 

in 1934. As a result of the allotment process, almost 11 million 

acres of lands are now held in trust or restricted status by the 

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United States for individual Indians. The Department of the Interior is responsible for managing the properties and the monies produced from revenue-producing activities on them. 

Individual Indian trust lands are subject to state intestacy laws, 

which generally provide for each heir to receive an equal share of 

the undivided interest in a parcel of land when the deceased owner 

does not leave a valid will. Historically, most Indian owners of the 

allotted trust lands have died without leaving a will. This phenomenon has led to exponentially-increasing fractionation of interests in land as each generation passes. It is common for dozens or 

even hundreds of Indians to own equal, undivided shares in a parcel of trust land. 

Such fractionated interests are extremely difficult to administer, 

and managing them often costs far more than the land economically produces, harming the Department’s ability to manage the 

properties as well as the owners’ ability to derive any value from 

them. During a June 23, 2004, Committee on Resources hearing on 

S. 1721, the Interior Department’s witness, Ross O. Swimmer, Special Trustee for American Indians, elaborated on the nature and extent of the problem: 

In 1992 the General Accounting Office (GAO) conducted 

an audit of 12 reservations to determine the severity of 

fractionation on those reservations. The GAO found that 

on the 12 reservations upon which it compiled data, there 

were approximately 80,000 discrete owners but, because of 

fractionation, there were over a million ownership records 

associated with those owners. The GAO also found that if 

the land was physically divided by the fractional interests, 

many of these interests would represent less than one 

square foot of ground. In early 2002, the Department attempted to replicate the audit methodology used by the 

GAO and to update the GAO report data to assess the continued growth of fractionation and found that it grew by 

over 40 percent between 1992 and 2002. 

As an example of continuing fractionation, consider a 

real tract identified in 1987 in Hodel v. Irving, 481 U.S. 

704 (1987): 

Tract 1305 is 40 acres and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, onethird of whom receive less than $.05 in annual rent and 

two-thirds of whom receive less than $1. The largest interest holder receives $82.85 annually. The common denominator used to compute fractional interests in the property 

is 3,394,923,840,000. The smallest heir receives $.01 every 

177 years. If the tract were sold (assuming the 439 owners 

could agree) for its estimated $8,000 value, he would be 

entitled to $.000418. The administrative costs of handling 

this tract are estimated by the BIA at $17,560 annually. Today, this tract produces $2,000 in income annually 

and is valued at $22,000. It now has 505 owners but the 

common denominator used to compute fractional interests 

has grown to 220,670,049,600,000. If the tract were sold 

(assuming the 505 owners could agree) for its estimated 

$22,000 value, the smallest heir would now be entitled to 

$.00001824. 

3 

Fractionation is at the heart of the Cobell v. Norton litigation. 

Unless a new, uniform federal probate code is enacted, fractionation will worsen, leading to skyrocketing administration costs for 

the Interior Department, continued diminishment in value to the 

land owners, and potentially more litigation. 

The Indian Land Consolidation Act 

Congress enacted ILCA in 1983 to address Indian land fractionation problems by— 

(1) Authorizing Indian tribes to establish land consolidation 

plans (section 204); 

(2) Authorizing Indian tribes to acquire an entire parcel of 

trust land with the consent of the majority of the parcel’s owners (section 205); 

(3) Authorizing the Secretary of the Interior to approve tribal 

probate codes, including provisions that limit devise or descent 

to non-member Indians or non-Indians (section 206); and 

(4) Providing that both devise and descent were inapplicable 

to any fractional interest in trust or restricted land if it was 

2% of the total acreage in a tract or smaller and it had not produced $100 in income in the previous year; instead, such interests were to escheat to the tribe (section 207). 

Certain provisions in the ILCA were criticized soon after it was 

enacted. Most criticism targeted the escheat provision in section 

207 as a potential taking of property. A lawsuit concerning this 

provision was filed shortly after enactment. In the meantime, ILCA 

was amended in 1984 to address concerns raised by Indian tribes 

and individual Indian landowners. 

In 1987, the Supreme Court found the escheat provision in the 

1983 version of ILCA to be an unconstitutional taking because it 

abolishes both descent and devise of the property interests at 

stake. The Court held that escheat could be constitutional if it were 

part of a system in which the law allows the landowner to devise 

his property but he dies intestate. The 1984 amendments were 

found to be unconstitutional as well in 1997. 

Further amendments to ILCA were enacted in 2000 (Public Law 

106–462). The purpose of the 2000 amendments was to prevent further fractionation of Indian trust allotments, consolidate fractional 

interests and their ownership into usable parcels, consolidate those 

interests in a manner that enhances tribal sovereignty, promote 

tribal self-sufficiency and self-determination, and reverse the effects of the allotment policy on Indian tribes. The 2000 amendments contained new inheritance restrictions, and mechanisms to 

consolidate fractionated parcels of land. 

While most of the 2000 amendments are in force today, including 

a successful pilot program to acquire fractionated interests, the inheritance restrictions under ILCA’s probate code are not effective 

because the Secretary of the Interior, at Congress’ behest, has not 

performed a certification required to make them effective. 

Under the 2000 amendments, many Indian owners of trust or restricted interests in Indian lands would be unable to devise anything more than a life estate in those interests—or to have the interests pass by intestate succession—to their own children or 

grandchildren who were not Indian as defined in ILCA. Indian 

landowners and tribal representatives expressed great concern over 

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the limitations placed on landowners by the intestate and testamentary provisions of the 2000 amendments, and indicated that 

some landowners have submitted, or were prepared to submit, applications for fee patents of their interests to avoid the limitations 

of the federal probate code and to assure their ability to devise the 

property to their children or other family members. 

This unfortunate result was never intended to happen with the 

2000 amendments. To the contrary, the 2000 amendments were an 

effort to preserve the trust status of individual Indian lands, and 

to build on the federal Indian policy reflected by the enactment of 

the Indian Reorganization Act of 1934, including the 1934 Act’s indefinite extension of the trust and restricted period on Indian lands 

and its repudiation of laws from an earlier period that facilitated 

the unilateral issuance of fee patents to owners of Indian trust 

land, even over their protests. Therefore, in addition to addressing 

the alarming rate of fractionation of Indian lands, S. 1721 is intended to address the concerns of Indian landowners and their advocates over the impact that the probate code in the 2000 amendments would have if it were to be certified. 

At the Committee on Resources hearing on S. 1721, the Department of the Interior’s witness testified that the 2000 amendments 

are complicated difficult to administer, and the goals of consolidating trust lands are not being met. Although the pilot land acquisition program in the Bureau of Indian Affairs’s Midwest Regional 

Office has proven to be effective, the rate of fractionation of other 

interests has been so great that the same number of outstanding 

interests exist today on the three reservations where the pilot program is operating as when the program began four years ago. 

How S. 1721 works 

S. 1721 provides stronger measures to slow and halt the continued fractionation of Indian lands and to consolidate fractionated interests. The general rules of intestate succession in S. 1721 would 

limit both the number of successive classes of potential heirs standing to inherit an interest before the interest would pass to the Indian tribe, and the eligibility for membership within each such 

class. In addition, the uniform probate code in S. 1721 has a special 

‘‘single heir rule’’ applicable to small interests that are not passed 

under a valid will; a small interest basically means any trust or restricted interest in land in the decedent’s estate that represents 

less than 5% of the entire undivided ownership of the parcel of 

which it is a part. 

The single heir rule is intended to place a ‘‘floor’’ on fractionation 

resulting from intestate succession. It provides owners of trust or 

restricted land with a strong incentive to write wills. The rule 

would reduce the number of classes of potential eligible heirs 

standing to inherit these small interests by intestate succession to 

just three—children, grandchildren, and great grandchildren—and 

would make only one person in each successive class, the oldest ‘‘eligible heir,’’ the heir of the interest. If there is no eligible heir in 

any of the three classes, the interest passes to the Indian tribe 

with jurisdiction over the interest. It is important to note, however, 

that S. 1721 would expressly allow the owners of trust and restricted interests to avoid the application of the single heir rule by 

disposing of the interest by executing a will. 

5 

While the intestate provisions of S. 1721 limit the range of eligible heirs, its testamentary provisions give owners of trust and restricted interests in land and trust personalty a very wide range 

of testamentary options. Specifically, the landowner may devise 

such interests in trust or restricted status to his or her lineal descendants, to any other person who owns another trust or restricted interest in the same parcel, to the Indian tribe, or to any 

Indian, or the landowner may also devise the interest: (1) as a life 

estate to any person; or (2) as an unrestricted fee interest to any 

person who is not Indian, as defined in ILCA (including the testator’s non-Indian lineal descendants, provided they are not ‘‘Indian’’). 

The probate code under S. 1721 would thus provide landowners 

with a strong incentive to write wills rather than simply ‘‘default’’ 

to the law of intestate succession, which, even under the narrow 

rules of the bill’s probate code, would inevitably lead to some fractionation. At the same time, because landowners would have real 

testamentary choices under S. 1721, the constitutionality issues 

enunciated in Supreme Court rulings concerning ILCA have been 

addressed. 

S. 1721 includes mechanisms beyond the probate code that are 

intended to facilitate the consolidation of fractional interests. For 

example, section 4 creates a process for the partition by sale of certain highly fractionated Indian lands. This provision would allow 

certain owners of undivided interests in tracts of land that meet 

the definition of ‘‘highly fractionated’’ to request that the Secretary 

of the Interior partition the property by sale. Another example of 

a consolidating mechanism in S. 1721 is an amendment to ILCA 

that would allow the co-owners of trust or restricted interests, coheirs and the Indian tribe to purchase, at not less than fair market 

value, fractional interests in a decedent’s estate prior to entry of 

the order distributing the estate. Under this provision, the heir’s 

consent would be required—except where the heir’s interest is less 

than 5% of the entire undivided ownership of the parcel of which 

it is a part and such interest is passed without a will. 

It should be noted that in his testimony before the Committee on 

Resources hearing on S. 1721, the Department of the Interior’s witness requested the Committee’s consideration of certain technical 

amendments and an amendment to address a problem in a certain 

Supreme Court case. Responding to questions regarding the need 

for such amendments in light of the relatively few legislative days 

remaining in the 108th Congress, the witness testified that in the 

Department’s view it is much more important to enact S. 1721 

without any further delay than to risk sending the bill back to the 

Senate with amendments; he noted that such amendments can 

wait to be considered in the context of separate legislation. 

COMMITTEE ACTION

S. 1721 was introduced on October 14, 2003, by Senator Ben 

Nighthorse Campbell (R–CO). The bill passed the Senate with an 

amendment by unanimous consent on June 2, 2004. In the House 

of Representatives, the bill was referred to the Committee on Resources. On June 23, 2004, the Full Resources Committee held a 

hearing on the bill. On July 14, 2004, the Full Resources Committee met to consider the bill. No amendments were offered and 

6 

the bill was then ordered favorably reported to the House of Representatives by unanimous consent. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in 

the body of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States 

grants Congress the authority to enact this bill. 

COMPLIANCE WITH HOUSE RULE XIII 

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, credit authority, or an increase 

or decrease in revenues or tax expenditures. According to the Congressional Budget Office, enacting this bill would increase direct 

spending, but any such increases would be less than $200,000 in 

fiscal year 2005 and in negligible amounts thereafter. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to amend the Indian Land Consolidation Act to improve provisions relating to probate of trust and restricted land, 

and for other purposes. 

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, July 22, 2004. 

Hon. RICHARD W. POMBO, Chairman, Committee on Resources, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1721, the American Indian 

Probate Reform Act of 2004. 

7 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Lanette J. Walker. 

Sincerely, 

ELIZABETH M. ROBINSON

(For Douglas Holtz-Eakin, Director). 

Enclosure. 

S. 1721—American Indian Probate Reform Act of 2004 

Summary: S. 1721 would amend laws that regulate how the ownership of interests in Indian trust or restricted land (certain parcels 

of land that are owned by individuals or groups) is transferred 

upon the death of the owner. CBO estimates that implementing the 

legislation would cost $25 million in 2005 and $457 million over 

the 2005–2009 period for the Secretary of the Interior to acquire 

interests in trust or restricted land and to administer the grant 

and loan programs that would be established under the act. This 

activity is known as Indian land consolidation, and costs for this 

purpose would be subject to appropriation of the necessary sums. 

Most of the costs would stem from specified authorization in S. 

1721. 

S. 1721 also would authorize the Secretary of the Interior to acquire certain interests in Indian trust or restricted land using revenue collected from leasing of natural resources on Indian land 

that has been acquired by the Secretary or from the sale of such 

land. Because such acquisitions could be made without appropriations, enacting S. 1721 would increase direct spending, but CBO estimates those costs would be less than $500,000 in each year over 

the 2005–2014 period. 

S. 1721 contains no intergovernmental mandates as defined in 

the Unfunded Mandates Reform Act (UMRA) and would impose no 

significant costs on state, local, or tribal governments. 

S. 1721 contains two private-sector mandates as defined in 

UMRA. The act would impose a private-sector mandate on individuals who would otherwise inherit interests in Indian trust or restricted lands under current law. The act also would allow the Secretary of the Interior to partition parcels of Indian land for sale 

under certain conditions. In the event that land is partitioned for 

sale without the consent of all the interest owners, S. 1721 would 

impose a private-sector mandate on those not consenting to the 

partition. CBO estimates that the direct cost of mandates in the act 

would fall below the annual threshold established by UMRA for 

private-sector mandates ($120 million in 2004, adjusted annually 

for inflation). The act also may benefit interest owners in Indian 

trust and restricted lands since it would remove certain restrictions 

on the use of such lands. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 1721 is shown in the following table. The costs 

of this legislation fall within budget function 450 (community and 

regional development). 

By fiscal year, in millions of dollars— 

2004 2005 2006 2007 2008 2009 

SPENDING SUBJECT TO APPROPRIATION 

Spending for Indian land consolidation under current law: 

Budget authority .......................................................................................... 22 0 0 0 0 0 

8 

By fiscal year, in millions of dollars— 

2004 2005 2006 2007 2008 2009 

Estimated outlays ........................................................................................ 13 12 5 2 0 0 

Proposed changes: 

Purchase of Indian trust and restricted land by the Secretary of the Interior: 

Authorization level .............................................................................. 0 75 95 145 145 145 

Estimated outlays ............................................................................... 0 23 59 97 128 140 

Tribal grants to develop probate codes and estate planning: 

Estimated authorization level ............................................................ 0 2 2 2 2 2 

Estimated outlays ............................................................................... 0 2 2 2 2 2 

Grants and loans to Indians to purchase partitions at auction: 

Estimated authorization level ............................................................ 0 * * * * * 

Estimated outlays ............................................................................... 0 * * * * * 

Total proposed changes: 

Enacted authorization level ................................................................ 0 77 79 147 147 147 

Estimated outlays ............................................................................... 0 25 61 99 130 142 

Total spending under S. 1721: 

Estimated authorization level ..................................................................... 22 77 97 147 147 147 

Estimated outlays ........................................................................................ 13 37 66 101 130 142 

Note.—*=less than $500,000. 

Basis of estimate: For this estimate, CBO assumes that S. 1721 

will be enacted near the beginning of fiscal year 2005 and that the 

authorized and estimated amounts will be appropriated for each 

year. We also assume that outlays will follow the historical spending pattern of the Indian Land Consolidation Pilot Program. 

The federal government originally allotted interests in trust and 

restricted land to individual Indians over a century ago. Over time, 

the number of owners of such allotted land has grown as owners 

have passed on ownership to their descendants. The Cost to the 

Bureau of Indian Affairs (BIA) to administer ownership of this 

property has also grown. S. 1721 would modify the Indian Land 

Consolidation Act, which attempts to prevent further partitioning 

of such land. 

Spending subject to appropriation 

S. 1721 would authorize the appropriation of $75 million in 2005, $95 million in 2006, and $145 million in each year over the 2007– 

2010 period for the Secretary to acquire undivided interests in Indian trust and restricted lands from willing sellers at fair market 

value and to collect and revenue generated from the leasing of natural resources on that interest. CBO estimates that appropriating 

the specified amounts would result in outlays of $23 million in 

2005 and over $440 million over the five-year period for purchases 

of such land. 

The act also would authorize the Secretary of the Interior to provide grants to Indian tribes to develop tribal probate codes and provide estate-planning services to tribal members. Based on information from the Department of the Interior (DOI), CBO estimates 

that implementing this provision would cost $2 million in each year 

over the 2005–2009 period for the Secretary to provide such grants. 

In addition, S. 1721 would establish a process whereby an owner 

in an undivided parcel of land or the tribe may apply for the partition (when a parcel of land with multiple owners is split into discrete pieces) by sale of certain parcels of trust or restricted land. 

S. 1721 would authorize DOI to provide grants and low-interest 

loans to individuals who successfully bid on Indian land auctioned 

by the Secretary on behalf of an owner who wishes to partition and 

9 

sell their interest in such land. Based on information from the department, CBO estimates that providing such grants and loans 

would cost the federal government about $1 million over the fiveyear period, subject to the availability of appropriated funds. 

Based on information from BIA, CBO expects that implementing 

S. 1721 could result in some administrative cost savings to that 

agency because there would be fewer individual owners of interests 

in trust and restricted lands. Any such savings would depend on 

amounts appropriated in the future, but CBO estimates that savings would not be significant over the 2005–2009 period. 

Direct spending 

Under current law, DOI may spend—subject to appropriation— 

any receipts from natural resources leases on trust or restricted 

land that has been purchased by the Secretary or any proceeds 

from the sale of such land. Subject to appropriation, the Secretary 

is authorized to spend such funds to acquire additional interests in 

Indian land, as long as the additional land is located on the same 

reservation that generated those leasing receipts or land-sale proceeds. 

S. 1721 would authorize the Secretary to spend such receipts, or 

land-sale proceeds without further appropriation. Since the start of 

the program in 1999, the department has collected nearly $200,000 

from such transactions. CBO estimates that enacting this provision 

would increase direct spending by about $200,000 in 2005 and a 

negligible amount in each subsequent year over 2006–2014 period. 

Estimated impact on state, local, and tribal governments: S. 1721 

contains no intergovernmental mandates as defined in UMRA and 

would impose no significant costs on state, local, or tribal governments. 

Estimated impact on the private sector: S. 1721 contains two private-sector mandates as defined in UMRA. The act would impose 

a private-sector mandate on individuals who would otherwise inherit interests in Indian trust or restricted lands under current 

law. The act also would allow the Secretary of the Interior to partition parcels of Indian land for sale under certain conditions. In the 

event that land is partitioned for sale without the consent of all the 

interest owners, S. 1721 would impose a private-sector mandate on 

those not consenting to the partition. CBO estimates that the direct 

cost of mandates in the act would fall below the annual threshold 

established by UMRA for private-sector mandates ($120 million in 

2004, adjusted annually for inflation). The act also may benefit interest owners in Indian trust and restricted lands since it would remove certain restrictions on the use of such lands. 

Intestate disposition of interests in trust and restricted lands 

S. 1721 would amend federal probate laws that govern how an 

individual’s interest in certain parcels of Indian land is transferred 

upon death. The act would impose private-sector mandates on certain individuals who would inherit interest in trust or restricted 

lands under current law. Indian trust or restricted lands are those 

lands held by the United States in trust for an Indian tribe or held 

by an individual Indian or tribe subject to restrictions against 

transferring such property. 

10 

Currently, the probation of Indian trust and restricted lands follows the laws for intestate succession of the state where the land 

is located in cases where there is no tribal probate code. In such 

cases when there are no heirs in the immediate family, distant relatives would be eligible to inherit land interests under current law. 

Under S. 1721, such distant relatives would not be eligible heirs in 

certain cases. The loss of inheritance could impose costs on persons 

who would otherwise receive an interest in such property. The 

changes in probate code would apply to very small interests in few 

cases. CBO expects that the cost of the mandate would be small. 

Partition of highly fractionated Indian lands 

The act also would allow the Secretary of the Interior to partition 

certain parcels of highly fractioned Indian lands for sale at the request of the Indian tribe with jurisdiction over the land or any 

owner of an interest in the parcel. To partition the land, among 

other conditions, the Secretary must obtain the written consent of 

the Indian tribe with jurisdiction, any owner who has kept residence or operated a business (including a farm or ranch) on the 

land for the three years preceding the date of the request for partition, and the owners of at least 50 percent of the undivided interests in the parcel if at least one owner’s undivided interest has a 

value in excess of $1,500. The act would impose a mandate on 

those interest owners not consenting to the partition. The cost that 

the mandate would impose on nonconsenting interest holders 

would be small. The interests involved are small, and all owners 

of interests in the partitioned land would receive compensation 

equal to at least the fair market value of their interest in land. 

Previous CBO estimate: On May 13, 2004, CBO transmitted a 

cost estimate for S. 1721 as ordered reported by the Senate Committee on Indian Affairs on April 21, 2004. The two versions of the 

legislation and the cost estimates are identical. 

Estimate prepared by: Federal Costs: Lanette J. Walker; Impact 

on State, Local, and Tribal Governments: Marjorie Miller; Impact 

on the Private Sector: Selena Caldera. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law, 

except those regarding inheritance of property affected under this 

bill. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

11 

INDIAN LAND CONSOLIDATION ACT 

TITLE II 

SEC. 201. This title may be cited as the ‘‘Indian Land Consolidation Act’’. 

SEC. 202. For the purpose of this title— 

(1) * * * 

ø(2) ‘‘Indian’’ means any person who is a member of any Indian tribe or is eligible to become a member of any Indian 

tribe, or any person who has been found to meet the definition 

of ‘‘Indian’’ under a provision of Federal law if the Secretary 

determines that using such law’s definition of Indian is consistent with the purposes of the Act;¿ 

(2) ‘‘Indian’’ means— 

(A) any person who is a member of any Indian tribe, is 

eligible to become a member of any Indian tribe, or is an 

owner (as of the date of enactment of the American Indian 

Probate Reform Act of 2004) of a trust or restricted interest 

in land; 

(B) any person meeting the definition of Indian under the 

Indian Reorganization Act (25 U.S.C. 479) and the regulations promulgated thereunder; and 

(C) with respect to the inheritance and ownership of trust 

or restricted land in the State of California pursuant to section 207, any person described in subparagraph (A) or (B) 

or any person who owns a trust or restricted interest in a 

parcel of such land in that State. 

* * * * * * * 

ø(4) ‘‘trust or restricted lands’’ means lands, title to which is 

held by the United States in trust for an Indian or an Indian 

tribe or lands title to which is held by Indians or an Indian 

tribe subject to a restriction by the United States against alienation; and¿ 

(4) ‘‘trust or restricted lands’’ means lands, title to which is 

held 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. 

* * * * * * * 

(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; 

12 

(7) ‘‘land’’ means any real property, and includes within its 

meaning for purposes of this Act improvements permanently affixed to real property; 

(8) ‘‘person’’ or ‘‘individual’’ means a natural person; 

(9) ‘‘eligible heirs’’ means, for purposes of section 207 (25 

U.S.C. 2206), any of a decedent’s children, grandchildren, great 

grandchildren, full siblings, half siblings by blood, and parents 

who are— 

(A) Indian; or 

(B) lineal descendents within 2 degrees of consanguinity 

of an Indian; or 

(C) owners of a trust or restricted interest in a parcel of 

land for purposes of inheriting by descent, renunciation, or 

consolidation agreement under section 207 (25 U.S.C. 

2206), another trust or restricted interest in such parcel 

from the decedent; and 

(10) ‘‘without regard to waste’’ means, with respect to a life 

estate interest in land, that the holder of such estate is entitled 

to the receipt of all income, including bonuses and royalties, 

from such land to the exclusion of the remaindermen. 

* * * * * * * 

SEC. 205. (a) * * * 

* * * * * * * 

(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 

13 

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 CER- TAIN 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 

14 

(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. 

(ii) MANNER OF SERVICE.— (I) SERVICE BY CERTIFIED MAIL.—The Secretary 

shall use due diligence to provide all owners of interests in the subject parcel, as evidenced by the 

15 

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 

16 

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.— 

17 

(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; 

18 

(II) the owner’s total undivided interest in the 

parcel immediately prior to the sale was— 

(aa) greater than the undivided interest held 

by any other co-owners, except where there are 

2 or more co-owners whose interests are of 

equal size but larger than the interests of all 

other co-owners and such owners of the largest 

interests have agreed in writing that 1 of them 

may exercise the right of purchase under this 

clause; and 

(bb) equal to or greater than 20 percent of 

the entire undivided ownership of the parcel; 

(III) within 3 days following the date of the auction or for receiving sealed bids, and in accordance 

with the regulations adopted to implement this section, the owner delivers to the Secretary a written 

notice of intent to exercise the owner’s rights under 

this clause; and 

(IV) such owner tenders the amount of the purchase price required under this clause— 

(aa) not less than 30 days after the date of 

the auction or time for receiving sealed bids; 

and 

(bb) in accordance with any requirements of 

the regulations promulgated to implement this 

section. 

(iv) INTEREST ACQUIRED.—A purchaser of a parcel of 

land under this subparagraph shall acquire title to the 

parcel in trust or restricted status, free and clear of any 

and all claims of title or ownership of all persons or 

entities (not including the United States) owning or 

claiming to own an interest in such parcel prior to the 

time of sale. 

(J) PROCEEDS OF SALE.— 

(i) Subject to clauses (ii) and (iii), the Secretary shall 

distribute the proceeds of sale of a parcel of land under 

the provisions of this section to the owners of interests 

in such parcel in proportion to their respective ownership interests. 

(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 

19 

with jurisdiction over the land, subject to the lien 

and procedures provided under section 214(b) (25 

U.S.C. 2213(b)); or 

(II) terminate the partition process. 

(ii) LACK OF CONSENT.—If an applicant fails to obtain any applicable consent required under the provisions of subparagraph (D) by the date established by 

the Secretary prior to the proposed sale, the Secretary 

may either extend the time for obtaining any such consent or deny the request for partition. 

(3) ENFORCEMENT.— (A) IN GENERAL.—If a partition is approved under this 

subsection and an owner of an interest in the parcel of land 

refuses to surrender possession in accordance with the partition decision, or refuses to execute any conveyance necessary to implement the partition, then any affected owner 

or the United States may— 

(i) commence a civil action in the United States district court for the district in which the parcel of land 

is located; and 

(ii) request that the court issue an order for ejectment 

or any other appropriate remedy necessary for the partition of the land by sale. 

(B) FEDERAL ROLE.—With respect to any civil action 

brought under subparagraph (A)— 

(i) the United States— 

(I) shall receive notice of the civil action; and 

(II) may be a party to the civil action; and 

(ii) the civil action shall not be dismissed, and no relief requested shall be denied, on the ground that the 

civil action is against the United States or that the 

United States is a necessary and indispensable party. 

(4) GRANTS AND LOANS.—The Secretary may provide grants 

and low interest loans to successful bidders at sales authorized 

by this subsection, provided that— 

(A) the total amount of such assistance in any such sale 

shall not exceed 20 percent of the appraised value of the 

parcel of land sold; and 

(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. 206. TRIBAL PROBATE CODES; ACQUISITIONS OF FRACTIONAL INTERESTS BY TRIBES. 

(a) TRIBAL PROBATE CODES.— (1) * * * 

* * * * * * * 

ø(3) LIMITATIONS.—The Secretary shall not approve a tribal 

probate code if such code prevents an Indian person from inheriting an interest in an allotment that was originally allotted 

to his or her lineal ancestor.¿ 

20 

(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). 

* * * * * * * 

(c) AUTHORITY AVAILABLE TO INDIAN TRIBES.— ø(1) IN GENERAL.—¿ 

(1) AUTHORITY.— (A) IN GENERAL.—If the owner of an interest in trust or 

restricted land devises an interest in such land to a nonIndian under section 207(a)(6)(A), the Indian tribe that exercises jurisdiction over the parcel of land involved may acquire such interest by paying to the Secretary the fair 

market value of such interest, as determined by the Secretary on the date of the decedent’s death. øThe Secretary 

shall transfer such payment to the devisee.¿ 

(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. 

(2) LIMITATION.— ø(A) IN GENERAL.—Paragraph (1) shall not apply¿ 

(A) INAPPLICABILITY TO CERTAIN INTERESTS.— (i) IN GENERAL.—Paragraph (1) shall not apply to an 

interest in trust or restricted land øif, while¿ if— 

(I) while the decedent’s estate is pending before 

the Secretary, the non-Indian devisee renounces 

the interest in favor of an Indian personø.¿; or 

(II)(aa) the interest is part of a family farm that 

is devised to a member of the family of the decedent; and 

(bb) the devisee agrees that the Indian tribe with 

jurisdiction over the land will have the opportunity 

to acquire the interest for fair market value if the 

interest is offered for sale to a person or entity that 

is not a member of the family of the owner of the 

land. 

(ii) RECORDING OF INTEREST.—On request by the Indian tribe described in clause (i)(II)(bb), a restriction 

relating to the acquisition by the Indian tribe of an interest in a family farm involved shall be recorded as 

part of the deed relating to the interest involved. 

21 

(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. 

* * * * * * * 

SEC. 207. DESCENT AND DISTRIBUTION. 

ø(a) TESTAMENTARY DISPOSITION.— ø(1) IN GENERAL.—Interests in trust or restricted land may 

be devised only to— 

ø(A) the decedent’s Indian spouse or any other Indian 

person; or 

ø(B) the Indian tribe with jurisdiction over the land so 

devised. 

ø(2) LIFE ESTATE.—Any devise of an interest in trust or restricted land to a non-Indian shall create a life estate with respect to such interest. 

ø(3) REMAINDER.— ø(A) IN GENERAL.—Except where the remainder from the 

life estate referred to in paragraph (2) is devised to an Indian, such remainder shall descend to the decedent’s Indian spouse or Indian heirs of the first or second degree 

pursuant to the applicable law of intestate succession. 

ø(B) DESCENT OF INTERESTS.—If a decedent described in 

subparagraph (A) has no Indian heirs of the first or second 

degree, the remainder interest described in such subparagraph shall descend to any of the decedent’s collateral 

heirs of the first or second degree, pursuant to the applicable laws of intestate succession, if on the date of the decedent’s death, such heirs were a co-owner of an interest in 

the parcel of trust or restricted land involved. 

ø(C) DEFINITION.—For purposes of this section, the term 

‘‘collateral heirs of the first or second degree’’ means the 

brothers, sisters, aunts, uncles, nieces, nephews, and first 

cousins, of a decedent. 

ø(4) DESCENT TO TRIBE.—If the remainder interest described 

in paragraph (3)(A) does not descend to an Indian heir or heirs 

it shall descend to the Indian tribe that exercises jurisdiction 

over the parcel of trust or restricted lands involved, subject to 

paragraph (5). 

ø(5) ACQUISITION OF INTEREST BY INDIAN CO-OWNERS.—An 

Indian co-owner of a parcel of trust or restricted land may preVerDate Aug 04 2004 01:05 Sep 11, 2004 Jkt 029006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR656.XXX HR656
22 

vent the descent of an interest in Indian land to an Indian 

tribe under paragraph (4) by paying into the decedent’s estate 

the fair market value of the interest in such land. If more than 

1 Indian co-owner offers to pay for such an interest, the highest bidder shall obtain the interest. If payment is not received 

before the close of the probate of the decedent’s estate, the interest shall descend to the tribe that exercises jurisdiction over 

the parcel. 

ø(6) SPECIAL RULE.— ø(A) IN GENERAL.—Notwithstanding paragraph (2), an 

owner of trust or restricted land who does not have an Indian spouse, Indian lineal descendant, an Indian heir of 

the first or second degree, or an Indian collateral heir of 

the first or second degree, may devise his or her interests 

in such land to any of the decedent’s heirs of the first or 

second degree or collateral heirs of the first or second degree. 

ø(B) ACQUISITION OF INTEREST BY TRIBE.—An Indian 

tribe that exercises jurisdiction over an interest in trust or 

restricted land described in subparagraph (A) may acquire 

any interest devised to a non-Indian as provided for in section 206(c). 

ø(b) INTESTATE SUCCESSION.— ø(1) IN GENERAL.—An interest in trust or restricted land 

shall pass by intestate succession only to a decedent’s spouse 

or heirs of the first or second degree, pursuant to the applicable law of intestate succession. 

ø(2) LIFE ESTATE.—Notwithstanding paragraph (1), with respect to land described in such paragraph, a non-Indian spouse 

or non-Indian heirs of the first or second degree shall only receive a life estate in such land. 

ø(3) DESCENT OF INTERESTS.—If a decedent described in 

paragraph (1) has no Indian heirs of the first or second degree, 

the remainder interest from the life estate referred to in paragraph (2) shall descend to any of the decedent’s collateral Indian heirs of the first or second degree, pursuant to the applicable laws of intestate succession, if on the date of the decedent’s death, such heirs were a co-owner of an interest in the 

parcel of trust or restricted land involved. 

ø(4) DESCENT TO TRIBE.—If the remainder interest described 

in paragraph (3) does not descend to an Indian heir or heirs 

it shall descend to the Indian tribe that exercises jurisdiction 

over the parcel of trust or restricted lands involved, subject to 

paragraph (5). 

ø(5) ACQUISITION OF INTEREST BY INDIAN CO-OWNERS.—An 

Indian co-owner of a parcel of trust or restricted land may prevent the descent of an interest in such land for which there is 

no heir of the first or second degree by paying into the decedent’s estate the fair market value of the interest in such land. 

If more than 1 Indian co-owner makes an offer to pay for such 

an interest, the highest bidder shall obtain the interest. If no 

such offer is made, the interest shall descend to the Indian 

tribe that exercises jurisdiction over the parcel of land involved.¿ 

(a) NONTESTAMENTARY DISPOSITION.— 

23 

(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. 

24 

(v) If the property does not pass under clause (i), (ii), 

(iii), or (iv), to the Indian tribe with jurisdiction over 

the interests in trust or restricted lands; 

except that notwithstanding clause (v), an Indian co-owner 

(including the Indian tribe referred to in clause (v)) of a 

parcel of trust or restricted land may acquire an interest 

that would otherwise descend under that clause by paying 

into the estate of the decedent, before the close of the probate of the estate, the fair market value of the interest in 

the land; if more than 1 Indian co-owner offers to pay for 

such interest, the highest bidder shall acquire the interest. 

(C) NO INDIAN TRIBE.— 

(i) IN GENERAL.—If there is no Indian tribe with jurisdiction over the interests in trust or restricted lands 

that would otherwise descend under subparagraph 

(B)(v), then such interests shall be divided equally 

among co-owners of trust or restricted interests in the 

parcel; if there are no such co-owners, then to the 

United States, provided that any such interests in land 

passing to the United States under this subparagraph 

shall be sold by the Secretary and the proceeds from 

such sale deposited into the land acquisition fund established under section 216 (25 U.S.C. 2215) and used 

for the purposes described in subsection (b) of that section. 

(ii) CONTIGUOUS PARCEL.—If the interests passing to 

the United States under this subparagraph are in a 

parcel of land that is contiguous to another parcel of 

trust or restricted land, the Secretary shall give the 

owner or owners of the trust or restricted interest in the 

contiguous parcel the first opportunity to purchase the 

interest at not less than fair market value determined 

in accordance with this Act. If more than 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 

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25 

est 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 

26 

(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 

27 

shall vest in the heir in the same trust or restricted status as 

such interest was held immediately prior to the decedent’s 

death. 

(b) TESTAMENTARY DISPOSITION.— (1) GENERAL DEVISE OF AN INTEREST IN TRUST OR RE- STRICTED LAND.— (A) IN GENERAL.—Subject to any applicable Federal law 

relating to the devise or descent of trust or restricted land, 

or a tribal probate code approved by the Secretary in accordance with section 206, the owner of a trust or restricted 

interest in land may devise such interest to— 

(i) any lineal descendant of the testator; 

(ii) any person who owns a preexisting undivided 

trust or restricted interest in the same parcel of land; 

(iii) the Indian tribe with jurisdiction over the interest in land; or 

(iv) any Indian; 

in trust or restricted status. 

(B) RULES OF INTERPRETATION.—Any devise of a trust or 

restricted interest in land pursuant to subparagraph (A) to 

an Indian or the Indian tribe with jurisdiction over the interest shall be deemed to be a devise of the interest in trust 

or restricted status. Any devise of a trust or restricted interest in land to a person who is only eligible to be a devisee 

under clause (i) or (ii) of subparagraph (A) shall be presumed to be a devise of the interest in trust or restricted 

status unless language in such devise clearly evidences an 

intent on the part of the testator that the interest is to pass 

as a life estate or fee interest in accordance with paragraph 

(2)(A). 

(2) DEVISE OF TRUST OR RESTRICTED LAND AS A LIFE ESTATE

OR IN FEE.— 

(A) IN GENERAL.—Except as provided under any applicable Federal law, any trust or restricted interest in land that 

is not devised in accordance with paragraph (1)(A) may be 

devised only— 

(i) as a life estate to any person, with the remainder 

being devised only in accordance with subparagraph 

(B) or paragraph (1); or 

(ii) except as provided in subparagraph (B), as a fee 

interest without Federal restrictions against alienation 

to any person who is not eligible to be a devisee under 

clause (iv) of paragraph (1)(A). 

(B) INDIAN REORGANIZATION ACT LANDS.—Any interest in 

trust or restricted land that is subject to section 4 of the Act 

of June 18, 1934 (25 U.S.C. 464), may be devised only in 

accordance with— 

(i) that section; 

(ii) subparagraph (A)(i); or 

(iii) paragraph (1)(A); 

provided that nothing in this section or in section 4 of the 

Act of June 18, 1934 (25 U.S.C. 464), shall be construed to 

authorize the devise of any interest in trust or restricted 

land that is subject to section 4 of that Act to any person 

as a fee interest under subparagraph (A)(ii). 

28 

(3) GENERAL DEVISE OF AN INTEREST IN TRUST PERSON- ALTY.— 

(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.— ø(1) TESTATE.—If a testator devises interests in the same 

parcel of trust or restricted lands to more than 1 person, in the 

absence of express language in the devise to the contrary, the 

devise shall be presumed to create joint tenancy with the right 

of survivorship in the land involved. 

ø(2) INTESTATE.— ø(A) IN GENERAL.—Any interest in trust or restricted 

land that— 

ø(i) passes by intestate succession to more than 1 

person, including a remainder interest under subsection (a) or (b) of section 207; and 

ø(ii) that constitutes 5 percent or more of the undivided interest in a parcel of trust or restricted land; 

shall be held as tenancy in common. 

ø(B) LIMITED INTEREST.—Any interest in trust or restricted land that— 

ø(i) passes by intestate succession to more than 1 

person, including a remainder interest under subsection (a) or (b) of section 207; and 

ø(ii) that constitutes less than 5 percent of the undivided interest in a parcel of trust or restricted land; 

shall be held by such heirs with the right of survivorship. 

29 

ø(3) EFFECTIVE DATE.— 

ø(A) IN GENERAL.—This subsection (other than subparagraph (B)) shall become effective on the later of— 

ø(i) the date referred to in subsection (g)(5); or 

ø(ii) the date that is six months after the date on 

which the Secretary makes the certification required 

under subparagraph (B). 

ø(B) CERTIFICATION.—Upon a determination by the Secretary that the Department of the Interior has the capacity, including policies and procedures, to track and manage 

interests in trust or restricted land held with the right of 

survivorship, the Secretary shall certify such determination and publish such certification in the Federal Register.¿ 

(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. 

* * * * * * * 

(f) ESTATE PLANNING ASSISTANCE.— 

ø(1) IN GENERAL.—The Secretary shall provide estate planning assistance in accordance with this subsection, to the extent amounts are appropriated for such purpose.¿ 

(1) IN GENERAL.— 

(A) The activities conducted under this subsection shall 

be conducted in accordance with any applicable— 

(i) tribal probate code; or 

(ii) tribal land consolidation plan. 

(B) The Secretary shall provide estate planning assistance in accordance with this subsection, to the extent 

amounts are appropriated for such purpose. 

(2) REQUIREMENTS.—The estate planning assistance provided 

under paragraph (1) shall be designed to— 

(A) inform, advise, and assist Indian landowners with 

respect to estate planning in order to facilitate the transfer 

of trust or restricted lands to a devisee or devisees selected 

by the landowners; øand¿ 

ø(B)¿ (D) assist Indian landowners in accessing information pursuant to section 217(e). 

(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 

30 

ø(3) CONTRACTS.—In carrying out this section, the Secretary 

may enter into contracts with entities that have expertise in 

Indian estate planning and tribal probate codes. 

ø(g) NOTIFICATION TO INDIAN TRIBES AND OWNERS OF TRUST OR

RESTRICTED LANDS.— ø(1) IN GENERAL.—Not later than 180 days after the date of 

enactment of the Indian Land Consolidation Act Amendments 

of 2000, the Secretary shall notify Indian tribes and owners of 

trust or restricted lands of the amendments made by the Indian Land Consolidation Act Amendments of 2000. 

ø(2) SPECIFICATIONS.—The notice required under paragraph 

(1) shall be designed to inform Indian owners of trust or restricted land of— 

ø(A) the effect of this Act, with emphasis on the effect 

of the provisions of this section, on the testate disposition 

and intestate descent of their interests in trust or restricted land; and 

ø(B) estate planning options available to the owners, including any opportunities for receiving estate planning assistance or advice. 

ø(3) REQUIREMENTS.—The Secretary shall provide the notice 

required under paragraph (1)— 

ø(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; 

ø(B) through the Federal Register; 

ø(C) through local newspapers in areas with significant 

Indian populations, reservation newspapers, and newspapers that are directed at an Indian audience; and 

ø(D) through any other means determined appropriate 

by the Secretary. 

ø(4) CERTIFICATION.—After providing notice under this subsection, the Secretary shall certify that the requirements of 

this subsection have been met and shall publish notice of such 

certification in the Federal Register. 

ø(5) EFFECTIVE DATE.—The provisions of this section shall 

not apply to the estate of an individual who dies prior to the 

day that is 365 days after the Secretary makes the certification 

required under paragraph (4).¿ 

(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 

31 

(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). 

(h) APPLICABLE FEDERAL LAW.— (1) IN GENERAL.—Any references in subsections (a) and (b) to 

applicable Federal law include— 

(A) Public Law 91–627 (84 Stat. 1874); 

(B) Public Law 92–377 (86 Stat. 530); 

(C) Public Law 92–443 (86 Stat. 744); 

(D) Public Law 96–274 (94 Stat. 537); and 

(E) Public Law 98–513 (98 Stat. 2411). 

(2) NO EFFECT ON LAWS.—Nothing in this Act amends or otherwise affects the application of any law described in paragraph 

(1), or any other Federal law that pertains to— 

(A) trust or restricted land located on 1 or more specific 

Indian reservations that are expressly identified in such 

law; or 

(B) the allotted lands of 1 or more specific Indian tribes 

that are expressly identified in such law. 

(i) RULES OF INTERPRETATION.—In the absence of a contrary intent, and except as otherwise provided under this Act, applicable 

Federal law, or a tribal probate code approved by the Secretary pursuant to section 206, wills shall be construed as to trust and restricted land and trust personalty in accordance with the following 

rules: 

(1) CONSTRUCTION THAT WILL PASSES ALL PROPERTY.—A will 

shall be construed to apply to all trust and restricted land and 

trust personalty which the testator owned at his death, including any such land or personalty acquired after the execution of 

his will. 

(2) CLASS GIFTS.— (A) NO DIFFERENTIATION BETWEEN RELATIONSHIP BY

BLOOD AND RELATIONSHIP BY AFFINITY.—Terms of relationship that do not differentiate relationships by blood from 

those by affinity, such as ‘‘uncles’’, ‘‘aunts’’, ‘‘nieces’’, or 

‘‘nephews’’, are construed to exclude relatives by affinity. 

Terms of relationship that do not differentiate relationships 

by the half blood from those by the whole blood, such as 

‘‘brothers’’, ‘‘sisters’’, ‘‘nieces’’, or ‘‘nephews’’, are construed to 

include both types of relationships. 

(B) MEANING OF ‘‘HEIRS’’ AND ‘‘NEXT OF KIN’’, ETC.; TIME

OF ASCERTAINING CLASS.—A devise of trust or restricted interest in land or an interest in trust personalty to the testator’s or another designated person’s ‘‘heirs’’, ‘‘next of kin’’, 

‘‘relatives’’, or ‘‘family’’ shall mean those persons, including 

the spouse, who would be entitled to take under the provisions of this Act for nontestamentary disposition. The class 

is to be ascertained as of the date of the testator’s death. 

32 

(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 

33 

trust personalty which would have passed from the decedent or 

his estate to such heir— 

(A) under intestate succession under this section; 

(B) under a tribal probate code, unless otherwise provided for; 

(C) as the surviving spouse; 

(D) by devise; 

(E) as a reversion or a vested remainder; 

(F) as a survivorship interest; and 

(G) as a contingent remainder or executory or other future interest. 

(4) JOINT TENANTS, JOINT OWNERS, AND JOINT OBLIGEES.— 

(A) Any trust or restricted land or trust personalty held 

by only the heir by killing and the decedent as joint tenants, joint owners, or joint obligees shall pass upon the 

death of the decedent to his or her estate, as if the heir by 

killing had predeceased the decedent. 

(B) As to trust or restricted land or trust personalty held 

jointly by 3 or more persons, including both the heir by killing and the decedent, any income which would have accrued to the heir by killing as a result of the death of the 

decedent shall pass to the estate of the decedent as if the 

heir by killing had predeceased the decedent and any surviving joint tenants. 

(C) Notwithstanding any other provision of this subsection, the decedent’s trust or restricted interest land or 

trust personalty that is held in a joint tenancy with the 

right of survivorship shall be severed from the joint tenancy 

as though the property held in the joint tenancy were to be 

severed and distributed equally among the joint tenants 

and the decedent’s interest shall pass to his estate; the remainder of the interests shall remain in joint tenancy with 

right of survivorship among the surviving joint tenants. 

(5) LIFE ESTATE FOR THE LIFE OF ANOTHER.—If the estate is 

held by a third person whose possession expires upon the death 

of the decedent, it shall remain in such person’s hands for the 

period of time following the decedent’s death equal to the life expectancy of the decedent but for the killing. 

(6) PREADJUDICATION RULE.— 

(A) IN GENERAL.—If a person has been charged, whether 

by indictment, information, or otherwise by the United 

States, a tribe, or any State, with voluntary manslaughter 

or homicide in connection with a decedent’s death, then any 

and all trust or restricted land or trust personalty that 

would otherwise pass to that person from the decedent’s estate shall not pass or be distributed by the Secretary until 

the charges have been resolved in accordance with the provisions of this paragraph. 

(B) DISMISSAL OR WITHDRAWAL.—Upon dismissal or 

withdrawal of the charge, or upon a verdict of not guilty, 

such land and personalty shall pass as if no charge had 

been filed or made. 

(C) CONVICTION.—Upon conviction of such person, and 

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34 

stricted land and trust personalty in the estate shall pass 

in accordance with this subsection. 

(7) BROAD CONSTRUCTION; POLICY OF SUBSECTION.—This subsection shall not be considered penal in nature, but shall be 

construed broadly in order to effect the policy that no person 

shall be allowed to profit by his own wrong, wherever committed. 

(k) GENERAL RULES GOVERNING PROBATE.— (1) SCOPE.—Except as provided under applicable Federal law 

or a tribal probate code approved under section 206, the provisions of this subsection shall govern the probate of estates containing trust and restricted interests in land or trust personalty. 

(2) PRETERMITTED SPOUSES AND CHILDREN.— 

(A) SPOUSES.— 

(i) IN GENERAL.—Except as provided in clause (ii), if 

the surviving spouse of a testator married the testator 

after the testator executed the will of the testator, the 

surviving spouse shall receive the intestate share in the 

decedent’s trust or restricted land and trust personalty 

that the spouse would have received if the testator had 

died intestate. 

(ii) EXCEPTION.—Clause (i) shall not apply to a trust 

or restricted interest land where— 

(I) the will of a testator is executed before the 

date of enactment of this subparagraph; 

(II)(aa) the spouse of a testator is a non-Indian; 

and 

(bb) the testator devised the interests in trust or 

restricted land of the testator to 1 or more Indians; 

(III) it appears, based on an examination of the 

will or other evidence, that the will was made in 

contemplation of the marriage of the testator to the 

surviving spouse; 

(IV) the will expresses the intention that the will 

is to be effective notwithstanding any subsequent 

marriage; or 

(V)(aa) the testator provided for the spouse by a 

transfer of funds or property outside the will; and 

(bb) an intent that the transfer be in lieu of a 

testamentary provision is demonstrated by statements of the testator or through a reasonable inference based on the amount of the transfer or other 

evidence. 

(iii) SPOUSES MARRIED AT THE TIME OF THE WILL.— 

Should the surviving spouse of the testator be omitted 

from the will of the testator, the surviving spouse shall 

be treated, for purposes of trust or restricted land or 

trust personalty in the testator’s estate, in accordance 

with the provisions of section 207(a)(2)(A), as though 

there was no will but only if— 

(I) the testator and surviving spouse were continuously married without legal separation for the 

5-year period preceding the decedent’s death; 

(II) the testator and surviving spouse have a surviving child who is the child of the testator; 

35 

(III) the surviving spouse has made substantial 

payments toward the purchase of, or improvements 

to, the trust or restricted land in such estate; or 

(IV) the surviving spouse is under a binding obligation to continue making loan payments for the 

trust or restricted land for a substantial period of 

time; 

except that, if there is evidence that the testator adequately provided for the surviving spouse and any 

minor children by a transfer of funds or property outside of the will, this clause shall not apply. 

(B) CHILDREN.— 

(i) IN GENERAL.—If a testator executed the will of the 

testator before the birth or adoption of 1 or more children of the testator, and the omission of the children 

from the will is a product of inadvertence rather than 

an intentional omission, the children shall share in the 

trust or restricted interests in land and trust personalty as if the decedent had died intestate. 

(ii) ADOPTED HEIRS.—Any person recognized as an 

heir by virtue of adoption under the Act of July 8, 1940 

(25 U.S.C. 372a), shall be treated as the child of a decedent under this subsection. 

(iii) ADOPTED-OUT CHILDREN.— (I) IN GENERAL.—For purposes of this Act, an 

adopted person shall not be considered the child or 

issue of his natural parents, except in distributing 

the estate of a natural kin, other than the natural 

parent, who has maintained a family relationship 

with the adopted person. If a natural parent shall 

have married the adopting parent, the adopted 

person for purposes of inheritance by, from and 

through him shall also be considered the issue of 

such natural parent. 

(II) ELIGIBLE HEIR PURSUANT TO OTHER FED- ERAL LAW OR TRIBAL LAW.—Notwithstanding the 

provisions of subparagraph (B)(iii)(I), other Federal laws and laws of the Indian tribe with jurisdiction over the trust or restricted interest in land 

may otherwise define the inheritance rights of 

adopted-out children. 

(3) DIVORCE.— 

(A) SURVIVING SPOUSE.— 

(i) IN GENERAL.—An individual who is divorced from 

a decedent, or whose marriage to the decedent has been 

annulled, shall not be considered to be a surviving 

spouse unless, by virtue of a subsequent marriage, the 

individual is married to the decedent at the time of 

death of the decedent. 

(ii) SEPARATION.—A decree of separation that does 

not dissolve a marriage, and terminate the status of 

husband and wife, shall not be considered a divorce for 

the purpose of this subsection. 

(iii) NO EFFECT ON ADJUDICATIONS.—Nothing in 

clause (i) shall prevent the Secretary from giving effect 

36 

to a property right settlement relating to a trust or restricted interest in land or an interest in trust personalty if 1 of the parties to the settlement dies before the 

issuance of a final decree dissolving the marriage of 

the parties to the property settlement. 

(B) EFFECT OF SUBSEQUENT DIVORCE ON A WILL OR DEVISE.— 

(i) IN GENERAL.—If, after executing a will, a testator 

is divorced or the marriage of the testator is annulled, 

as of the effective date of the divorce or annulment, any 

disposition of trust or restricted interests in land or of 

trust personalty made by the will to the former spouse 

of the testator shall be considered to be revoked unless 

the will expressly provides otherwise. 

(ii) PROPERTY.—Property that is prevented from 

passing to a former spouse of a decedent under clause 

(i) shall pass as if the former spouse failed to survive 

the decedent. 

(iii) PROVISIONS OF WILLS.—Any provision of a will 

that is considered to be revoked solely by operation of 

this subparagraph shall be revived by the remarriage 

of a testator to the former spouse of the testator. 

(4) AFTER-BORN HEIRS.—A child in gestation at the time of 

decedent’s death will be treated as having survived the decedent 

if the child lives at least 120 hours after its birth. 

(5) ADVANCEMENTS OF TRUST PERSONALTY DURING LIFETIME; 

EFFECT ON DISTRIBUTION OF ESTATE.— 

(A) The trust personalty of a decedent who dies intestate 

as to all or a portion of his or her estate, given during the 

decedent’s lifetime to a person eligible to be an heir of the 

decedent under subsection (b)(2)(B), shall be treated as an 

advancement against the heir’s inheritance, but only if the 

decedent declared in a contemporaneous writing, or the 

heir acknowledged in writing, that the gift is an advancement or is to be taken into account in computing the division and distribution of the decedent’s intestate estate. 

(B) For the purposes of this section, trust personalty advanced during the decedent’s lifetime is valued as of the 

time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever occurs first. 

(C) If the recipient of the trust personalty predeceases the 

decedent, the property shall not be treated as an advancement or taken into account in computing the division and 

distribution of the decedent’s intestate estate unless the decedent’s contemporaneous writing provides otherwise. 

(6) HEIRS RELATED TO DECEDENT THROUGH 2 LINES; SINGLE

SHARE.—A person who is related to the decedent through 2 lines 

of relationship is entitled to only a single share of the trust or 

restricted land or trust personalty in the decedent’s estate based 

on the relationship that would entitle such person to the larger 

share. 

(7) NOTICE.— 

37 

(A) IN GENERAL.—To the maximum extent practicable, 

the Secretary shall notify each owner of trust and restricted 

land of the provisions of this Act. 

(B) COMBINED NOTICES.—The notice under subparagraph 

(A) may, at the discretion of the Secretary, be provided with 

the notice required under subsection (a) of section 8 of the 

American Indian Probate Reform Act of 2004. 

(8) RENUNCIATION OR DISCLAIMER OF INTERESTS.— (A) IN GENERAL.—Any person 18 years of age or older 

may renounce or disclaim an inheritance of a trust or restricted interest in land or in trust personalty through intestate succession or devise, either in full or subject to the 

reservation of a life estate (where the interest is an interest 

in land), in accordance with subparagraph (B), by filing a 

signed and acknowledged declaration with the probate decisionmaker prior to entry of a final probate order. No interest so renounced or disclaimed shall be considered to 

have vested in the renouncing or disclaiming heir or devisee, and the renunciation or disclaimer shall not be considered to be a transfer or gift of the renounced or disclaimed 

interest. 

(B) ELIGIBLE RECIPIENTS OF RENOUNCED OR DISCLAIMED

INTERESTS; NOTICE TO RECIPIENTS.— (i) INTERESTS IN LAND.—A trust or restricted interest 

in land may be renounced or disclaimed only in favor 

of— 

(I) an eligible heir; 

(II) any person who would have been eligible to 

be a devisee of the interest in question pursuant to 

subsection (b)(1)(A) (but only in cases where the renouncing person is a devisee of the interest under 

a valid will); or 

(III) the Indian tribe with jurisdiction over the 

interest in question; 

and the interest so renounced shall pass to its recipient 

in trust or restricted status. 

(ii) TRUST PERSONALTY.—An interest in trust personalty may be renounced or disclaimed in favor of any 

person who would be eligible to be a devisee of such an 

interest under subsection (b)(3) and shall pass to the 

recipient in accordance with the provisions of that subsection. 

(iii) UNAUTHORIZED RENUNCIATIONS AND DISCLAIMERS.—Unless renounced or disclaimed in favor of 

a person or Indian tribe eligible to receive the interest 

in accordance with the provisions of this subparagraph, a renounced or disclaimed interest shall pass as 

if the renunciation or disclaimer had not been made. 

(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 disVerDate Aug 04 2004 01:05 Sep 11, 2004 Jkt 029006 PO 00000 Frm 00037 Fmt 6659 Sfmt 6603 E:\HR\OC\HR656.XXX HR656
38 

claimer 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. 

(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 

39 

(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 

40 

creation and management of interests in trust and restricted lands under the pilot project; 

(B) the feasibility of accurately monitoring the performance of legal entities such as those involved in the pilot 

project, and the effectiveness of such entities as mechanisms 

to manage and protect trust assets; 

(C) the impact that the use of entities such as those in the 

pilot project may have with respect to the accomplishment 

of the goals of the Indian Land Consolidation Act (25 

U.S.C. 2201 et seq.); and 

(D) any recommendations that the Secretary may have regarding whether to adopt a permanent program as a management and consolidation measure for interests in trust or 

restricted lands. 

(n) NOTICE TO HEIRS.—Prior to holding a hearing to determine 

the heirs to trust or restricted property, or making a decision determining such heirs, the Secretary shall seek to provide actual written 

notice of the proceedings to all heirs. Such efforts shall include— 

(1) a search of publicly available records and Federal records, 

including telephone and address directories and including electronic search services or directories; 

(2) an inquiry with family members and co-heirs of the property; 

(3) an inquiry with the tribal government of which the owner 

is a member, and the tribal government with jurisdiction over 

the property, if any; and 

(4) if the property is of a value greater than $2,000, engaging 

the services of an independent firm to conduct a missing persons search. 

(o) MISSING HEIRS.— 

(1) For purposes of this subsection and subsection (m), an 

heir may be presumed missing if— 

(A) such heir’s whereabouts remain unknown 60 days 

after completion of notice efforts under subsection (m); and 

(B) in the proceeding to determine a decedent’s heirs, the 

Secretary finds that the heir has had no contact with other 

heirs of the decedent, if any, or with the Department relating to trust or restricted land or other trust assets at any 

time during the 6-year period preceding the hearing to determine heirs. 

(2) Before the date for declaring an heir missing, any person 

may request an extension of time to locate such heir. The Secretary shall grant a reasonable extension of time for good cause. 

(3) An heir shall be declared missing only after a review of 

the efforts made in the heirship proceeding and a finding has 

been made that this subsection has been complied with. 

(4) An heir determined to be missing pursuant to this subsection shall be deemed to have predeceased the decedent for 

purposes of descent and devise of trust or restricted land and 

trust personalty within that decedent’s estate. 

(p) PURCHASE OPTION AT PROBATE.— 

(1) IN GENERAL.—The trust or restricted interests in a parcel 

of land in the decedent’s estate may be purchased at probate in 

accordance with the provisions of this subsection. 

41 

(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 

42 

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. 

* * * * * * * 

øSEC. 213. PILOT PROGRAM FOR THE ACQUISITION OF FRACTIONAL 

INTERESTS.¿ 

SEC. 2212. FRACTIONAL INTEREST ACQUISITION PROGRAM. 

(a) ACQUISITION BY SECRETARY.— 

(1) IN GENERAL.—The Secretary may acquire, at the discretion of the Secretary and with the consent of the owner, or 

from an heir during probate in accordance with section 207(p) 

(25 U.S.C. 2206(p)) and at fair market value, any fractional interest in trust or restricted lands. 

ø(2) AUTHORITY OF SECRETARY.— 

ø(A) IN GENERAL.—The Secretary shall have the authority to acquire interests in trust or restricted lands under 

this section during the 3-year period beginning on the date 

of certification that is referred to in section 207(g)(5). 

ø(B) REQUIRED REPORT.—Prior to expiration of the authority provided for in subparagraph (A), the Secretary 

shall submit¿ 

(2) AUTHORITY OF SECRETARY.—The Secretary shall submit 

the report required under section 218 concerning øwhether the 

program to acquire fractional interests should be extended or 

altered to make resources¿ how the fractional interest acquisition program should be enhanced to increase the resources 

made available to Indian tribes and individual Indian landowners. 

* * * * * * * 

(b) REQUIREMENTS.—In implementing subsection (a), the Secretary— 

(1) * * * 

* * * * * * * 

ø(4) shall minimize the administrative costs associated with 

the land acquisition program.¿ 

43 

(4) shall minimize the administrative costs associated with 

the land acquisition program through the use of policies and 

procedures designed to accommodate the voluntary sale of interests under this section, notwithstanding the existence of any 

otherwise applicable policy, procedure, or regulation, through 

the elimination of duplicate— 

(A) conveyance documents; 

(B) administrative proceedings; and 

(C) transactions. 

(c) SALE OF INTEREST TO INDIAN LANDOWNERS.— (1) CONVEYANCE AT REQUEST.— (A) IN GENERAL.—At the request of any Indian who owns 

øat least 5 percent of the¿ an undivided interest in a parcel of trust or restricted land, the Secretary shall convey 

an interest in such parcel acquired under this section to 

the Indian ølandowner upon payment by the Indian landowner of the amount paid for the interest by the Secretary.¿ landowner— 

(i) on payment by the Indian landowner of the 

amount paid for the interest by the Secretary; or 

(ii) if— 

(I) the Indian referred to in this subparagraph 

provides assurances that the purchase price will be 

paid by pledging revenue from any source, including trust resources; and 

(II) the Secretary determines that the purchase 

price will be paid in a timely and efficient manner. 

(B) LIMITATION.—With respect to a conveyance under 

this subsection, the Secretary shall not approve an application to terminate the trust status or remove the restrictions of such an interest unless the interest is subject to a 

foreclosure of a mortgage in accordance with the Act of 

March 29, 1956 (25 U.S.C. 483a). 

* * * * * * * 

(3) LIMITATION.—If an Indian tribe that has jurisdiction over 

a parcel of trust or restricted land owns ø10 percent or more 

of the undivided interests¿ an undivided interest in a parcel of 

such land, such interest may only be acquired under paragraph 

(1) with the consent of such Indian tribe. 

(d) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to 

be appropriated to carry out this section $75,000,000 for fiscal year 

2005, $95,000,000 for fiscal year 2006, and $145,000,000 for each 

of fiscal years 2007 through 2010. 

SEC. 214. ADMINISTRATION OF ACQUIRED FRACTIONAL INTERESTS, 

DISPOSITION OF PROCEEDS. 

(a) * * * 

ø(b) CONDITIONS.— 

ø(1) IN GENERAL.—The conditions described in this paragraph are as follows: 

ø(A) Until the purchase price paid by the Secretary for 

an interest referred to in subsection (a) has been recovered, or until the Secretary makes any of the findings 

under paragraph (2)(A), any lease, resource sale contract, 

right-of-way, or other document evidencing a transaction 

44 

affecting the interest shall contain a clause providing that 

all revenue derived from the interest shall be paid to the 

Secretary. 

ø(B) Subject to subparagraph (C), the Secretary shall deposit any revenue derived under subparagraph (A) into the 

Acquisition Fund created under section 216. 

ø(C) The Secretary shall deposit any revenue that is 

paid under subparagraph (A) that is in excess of the purchase price of the fractional interest involved to the credit 

of the Indian tribe that receives the fractional interest 

under section 213 and the tribe shall have access to such 

funds in the same manner as other funds paid to the Secretary for the use of lands held in trust for the tribe. 

ø(D) Notwithstanding any other provision of law, including section 16 of the Act of June 18, 1934 (commonly referred to as the ‘‘Indian Reorganization Act’’) (48 Stat. 987, 

chapter 576; 25 U.S.C. 476), with respect to any interest 

acquired by the Secretary under section 213, the Secretary 

may approve a transaction covered under this section on 

behalf of a tribe until— 

ø(i) the Secretary makes any of the findings under 

paragraph (2)(A); or 

ø(ii) an amount equal to the purchase price of that 

interest has been paid into the Acquisition Fund created under section 216. 

ø(2) EXCEPTION.—Paragraph (1)(A) shall not apply to any 

revenue derived from an interest in a parcel of land acquired 

by the Secretary under section 213 after— 

ø(A) the Secretary makes a finding that— 

ø(i) the costs of administering the interest will equal 

or exceed the projected revenues for the parcel involved; 

ø(ii) in the discretion of the Secretary, it will take 

an unreasonable period of time for the parcel to generate revenue that equals the purchase price paid for 

the interest; or 

ø(iii) a subsequent decrease in the value of land or 

commodities associated with the land make it likely 

that the interest will be unable to generate revenue 

that equals the purchase price paid for the interest in 

a reasonable time; or 

ø(B) an amount equal to the purchase price of that interest in land has been paid into the Acquisition Fund created under section 216.¿ 

(b) APPLICATION OF REVENUE FROM ACQUIRED INTERESTS TO

LAND CONSOLIDATION PROGRAM.— 

(1) IN GENERAL.—The Secretary shall have a lien on any revenue accruing to an interest described in subsection (a) until the 

Secretary provides for the removal of the lien under paragraph 

(3), (4), or (5). 

(2) REQUIREMENTS.— (A) IN GENERAL.—Until the Secretary removes a lien from 

an interest in land under paragraph (1)— 

(i) any lease, resource sale contract, right-of-way, or 

other document evidencing a transaction affecting the 

45 

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. 

* * * * * * * 

SEC. 216. ACQUISITION FUND. 

(a) IN GENERAL.—The Secretary shall establish an Acquisition 

Fund to— 

(1) * * * 

ø(2) collect all revenues received from the lease, permit, or 

sale of resources from interests in trust or restricted lands 

transferred to Indian tribes by the Secretary under section 213 

or paid by Indian landowners under section 213(c).¿ 

(2) collect all revenues received from the lease, permit, or sale 

of resources from interests acquired under section 213 or paid 

by Indian landowners under section 213. 

(b) DEPOSITS; USE.— 

46 

(1) IN GENERAL.—øSubject to paragraph (2), all¿ All proceeds 

from leases, permits, or resource sales derived from an interest 

in trust or restricted lands described in subsection (a)(2) 

shall— 

(A) be deposited in the Acquisition Fund; øand¿ 

(B) as specified in advance in appropriations Acts, be 

available for the purpose of acquiring additional fractional 

interests in trust or restricted landsø.¿; and 

(C) be used to acquire undivided interests on the reservation from which the income was derived. 

ø(2) MAXIMUM DEPOSITS OF PROCEEDS.—With respect to the 

deposit of proceeds derived from an interest under paragraph 

(1), the aggregate amount deposited under that paragraph 

shall not exceed the purchase price of that interest under section 213.¿ 

(2) USE OF FUNDS.—The Secretary may use the revenue deposited in the Acquisition Fund under paragraph (1) to acquire 

some or all of the undivided interests in any parcels of land in 

accordance with section 205. 

SEC. 217. TRUST AND RESTRICTED LAND TRANSACTIONS. 

(a) * * * 

(b) SALES, EXCHANGES AND GIFT DEEDS BETWEEN INDIANS AND

BETWEEN INDIANS AND INDIAN TRIBES.— 

(1) IN GENERAL.— 

(A) * * * 

ø(B) WAIVER OF REQUIREMENT.—The requirement for an 

estimate of value under subparagraph (A) may be waived 

in writing by an Indian selling, exchanging, or conveying 

by gift deed for no or nominal consideration an interest in 

land with an Indian person who is the owner’s spouse, 

brother, sister, lineal ancestor of Indian blood, lineal descendant, or collateral heir.¿ 

(B) WAIVER OF REQUIREMENT.—The requirement for an 

estimate of value under subparagraph (A) may be waived 

in writing by an owner of a trust or restricted interest in 

land either selling, exchanging, or conveying by gift deed 

for no or nominal consideration such interest— 

(i) to an Indian person who is the owner’s spouse, 

brother, sister, lineal ancestor, lineal descendant, or 

collateral heir; or 

(ii) to an Indian co-owner or to the tribe with jurisdiction over the subject parcel of land, where the grantor owns a fractional interest that represents 5 percent 

or less of the parcel. 

* * * * * * * 

(e) LAND OWNERSHIP INFORMATION.—øNotwithstanding any 

other provision of law, the names and mailing addresses of the Indian owners of trust or restricted lands, and information on the location of the parcel and the percentage of undivided interest owned 

by each individual, or of any interest in trust or restricted lands, 

shall, upon written request, be made available to—¿ Notwithstanding any other provision of law, the names and mailing addresses of the owners of any interest in trust or restricted lands, and 

information on the location of the parcel and the percentage of undiVerDate Aug 04 2004 01:05 Sep 11, 2004 Jkt 029006 PO 00000 Frm 00046 Fmt 6659 Sfmt 6601 E:\HR\OC\HR656.XXX HR656
47 

vided interest owned by each individual shall, upon written request, 

be made available to 

(1) other øIndian¿ owners of interests in trust or restricted 

lands within the same reservation; 

* * * * * * * 

(3) øprospective applicants for the leasing, use, or consolidation of¿ any person that is leasing, using, or consolidating, or 

is applying to lease, use, or consolidate, such trust or restricted 

land or the interest in trust or restricted lands. 

ø(f) NOTICE TO INDIAN TRIBE.—After the expiration of the limitation period provided for in subsection (b)(2) and prior to considering 

an Indian application to terminate the trust status or to remove 

the restrictions on alienation from trust or restricted land sold, exchanged or otherwise conveyed under this section, the Indian tribe 

that exercises jurisdiction over the parcel of such land shall be notified of the application and given the opportunity to match the 

purchase price that has been offered for the trust or restricted land 

involved.¿ 

(f) PURCHASE OF LAND BY INDIAN TRIBE.— 

(1) IN GENERAL.—Except as provided in paragraph (2), before 

the Secretary approves an application to terminate the trust status or remove the restrictions on alienation from a parcel of, or 

interest in, trust or restricted land, the Indian tribe with jurisdiction over the parcel shall have the opportunity— 

(A) to match any offer contained in the application; or 

(B) in a case in which there is no purchase price offered, 

to acquire the interest in the parcel by paying the fair market value of the interest. 

(2) EXCEPTION FOR FAMILY FARMS.— 

(A) IN GENERAL.—Paragraph (1) shall not apply to a parcel of, or interest in, trust or restricted land that is part of 

a family farm that is conveyed to a member of the family 

of a landowner (as defined in section 206(c)(2)(A)(iv)) if the 

conveyance requires that in the event that the parcel or interest is offered for sale to an entity or person that is not 

a member of the family of the landowner, the Indian tribe 

with jurisdiction over the land shall be afforded the opportunity to purchase the interest pursuant to paragraph (1). 

(B) APPLICABILITY OF OTHER PROVISION.—Section 

206(c)(2)(A) shall apply with respect to the recording and 

mortgaging of any trust or restricted land referred to in 

subparagraph (A). 

* * * * * * * 

SEC. 219. APPROVAL OF LEASES, RIGHTS-OF-WAY, AND SALES OF 

NATURAL RESOURCES. 

(a) * * * 

(b) APPLICABLE PERCENTAGE.— (1) PERCENTAGE INTEREST.—The applicable percentage referred to in subsection (a)(1) shall be determined as follows: 

(A) If there are 5 or fewer owners of the undivided interest in the allotted land, the applicable percentage shall be 

ø100¿ 90 percent. 

* * * * * * * 

48 

(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. 

* * * * * * * 

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. 

(c) OWNER MANAGEMENT.— 

(1) IN GENERAL.—Notwithstanding any provision of Federal 

law requiring the Secretary to approve individual Indian leases 

of individual Indian trust or restricted land, where the owners 

of all of the undivided trust or restricted interests in a parcel 

of land have submitted applications to the Secretary pursuant 

to subsection (a), and the Secretary has approved such applications under subsection (d), such owners may, without further 

approval by the Secretary, enter into a lease of the parcel for 

agricultural purposes for a term not to exceed 10 years. 

(2) RULE OF CONSTRUCTION.—No such lease shall be effective 

until it has been executed by the owners of all undivided trust 

or restricted interests in the parcel. 

(d) APPROVAL OF APPLICATIONS FOR OWNER MANAGEMENT.— 

(1) IN GENERAL.—Subject to the provisions of paragraph (2), 

the Secretary shall approve an application for owner management submitted by a qualified applicant pursuant to this section unless the Secretary has reason to believe that the applicant is submitting the application as the result of fraud or 

undue influence. No such application shall be valid or considered if it is received by the Secretary prior to the date that is 

1 year after the date on which notice is published pursuant to 

section 8(a)(4) of the American Indian Probate Reform Act of 

2004. 

(2) COMMENCEMENT OF OWNER-MANAGED STATUS.—Notwithstanding the approval of 1 or more applications pursuant to 

paragraph (1), no trust or restricted interest in a parcel of land 

shall acquire owner-managed status until applications for all of 

the trust or restricted interests in such parcel of land have been 

submitted to and approved by the Secretary pursuant to this 

section. 

(e) VALIDITY OF LEASES.—No lease of trust or restricted interests 

in a parcel of land that is owner-managed under this section shall 

be valid or enforceable against the owners of such 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 

49 

(2) has been approved by the Secretary in accordance with 

other Federal laws applicable to the leasing of trust or restricted land. 

(f) LEASE REVENUES.—The Secretary shall not be responsible for 

the collection of, or accounting for, any lease revenues accruing to 

any interests under a lease authorized by subsection (e), so long as 

such interest is in owner-managed status under the provisions of 

this section. 

(g) JURISDICTION.— (1) JURISDICTION UNAFFECTED BY STATUS.—The Indian tribe 

with jurisdiction over an interest in trust or restricted land that 

becomes owner-managed pursuant to this section shall continue 

to have jurisdiction over the interest to the same extent and in 

all respects that such tribe had prior to the interest acquiring 

owner-managed status. 

(2) PERSONS USING LAND.—Any person holding, leasing, or 

otherwise using such interest in land shall be considered to consent to the jurisdiction of the Indian tribe referred to in paragraph (1), including such tribe’s laws and regulations, if any, 

relating to the use, and any effects associated with the use, of 

the interest. 

(h) CONTINUATION OF OWNER-MANAGED STATUS; REVOCATION.— (1) IN GENERAL.—Subject to the provisions of paragraph (2), 

after the applications of the owners of all of the trust or restricted interests in a parcel of land have been approved by the 

Secretary pursuant to subsection (d), each such interest shall 

continue in owner-managed status under this section notwithstanding any subsequent conveyance of the interest in trust or 

restricted status to another person or the subsequent descent of 

the interest in trust or restricted status by testate or intestate 

succession to 1 or more heirs. 

(2) REVOCATION.—Owner-managed status of an interest may 

be revoked upon written request of the owners (including the 

parents or legal guardians of minors or incompetent owners) of 

all trust or restricted interests in the parcel, submitted to the 

Secretary in accordance with regulations adopted under subsection (l). The revocation shall become effective as of the date 

on which the last of all such requests has been delivered to the 

Secretary. 

(3) EFFECT OF REVOCATION.—Revocation of owner-managed 

status under paragraph (2) shall not affect the validity of any 

lease made in accordance with the provisions of this section 

prior to the effective date of the revocation, provided that, after 

such revocation becomes effective, the Secretary shall be responsible for the collection of, and accounting for, all future lease 

revenues accruing to the trust or restricted interests in the parcel from and after such effective date. 

(i) DEFINED TERMS.— 

(1) For purposes of subsection (d)(1), the term ‘‘qualified applicant’’ means— 

(A) a person over the age of 18 who owns a trust or restricted interest in a parcel of land; and 

(B) the parent or legal guardian of a minor or incompetent person who owns a trust or restricted interest in a 

parcel of land. 

50 

(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. 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. 

SECTION 5 OF THE ACT OF FEBRUARY 8, 1887 

SEC. 5. That upon the approval of the allotments provided for in 

this act by the Secretary of the Interior, he shall cause patents to 

issue therefor in the name of the allottees, which patents shall be 

of the legal effect, and declare that the United States does and will 

hold the land thus allotted, for the period of twenty-five years, in 

trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs 

according to the laws of the State or Territory where such land is 

located, and that at the expiration of said period the United States 

will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or 

incumbrance whatsoever: Provided, That the President of the 

United States may in any case in his discretion extend the period. 

And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, 

before the expiration of the time above mentioned, such conveyance 

or contract shall be absolutely null and void: øProvided, That the 

law of descent in force in the Sate or Territory where such lands 

are situate shall apply thereto after patents therefor have been exVerDate Aug 04 2004 01:05 Sep 11, 2004 Jkt 029006 PO 00000 Frm 00050 Fmt 6659 Sfmt 6601 E:\HR\OC\HR656.XXX HR656
51 

ecuted and delivered, except as provided by the Indian Land Consolidation Act or a tribal probate code approved under such Act and 

except as herein otherwise provided; and the laws of the State of 

Kansas regulating the descent and partition of real estate shall, so 

far as practicable, apply to all lands in the Indian Territory which 

may be allotted in severalty under the provisions of this act:¿ 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: And provided further, That at any time 

after lands have been allotted to all the Indians of any tribe as 

herein provided, or sooner if in the opinion of the President it shall 

be for the best interests of said tribe, it shall be lawful for the Secretary of the Interior to negotiate with such Indian tribe for the 

purchase and release by said tribe, in conformity with the treaty 

or statute under which such reservation is held, of such portions 

of its reservation not allotted as such tribe shall, from time to time, 

consent to sell, on such terms and conditions as shall be considered 

just and equitable between the United States and said tribe of Indians, which purchase shall not be complete until ratified by Congress, and the form and manner of executing such release shall 

also be prescribed by Congress: Provided however, That all lands 

adapted to agriculture, with or without irrigation so sold or released to the United States by any Indian tribe shall be held by 

the United States for the sole purpose of securing homes to actual 

settlers and shall be disposed of by the United States to actual and 

bona fide settlers only in tracts not exceeding one hundred and 

sixty acres to any one person, on such terms as Congress shall prescribe, subject to grants which Congress may make in aid of education: And provided further, That no patents shall issue therefor 

except to the person so taking the same as and for a homestead, 

or his heirs, and after the expiration of five years occupancy thereof 

as such homestead; and any conveyance of said lands so taken as 

a homestead, or any contract touching the same, or lien thereon, 

created prior to the date of such patent, shall be null and void. And 

the sums agreed to be paid by the United States as purchase 

money for any portion of any such reservation shall be held in the 

Treasury of the United States for the sole use of the tribe or tribes 

of Indians; to whom such reservations belonged; and the same, 

with interest thereon at three per cent per annum, shall be at all 

times subject to appropriation by Congress for the education and 

civilization of such tribe or tribes of Indians or the members thereof. The patents aforesaid shall be recorded in the General Land office, and afterward delivered, free of charge, to the allottee entitled 

thereto. And if any religious society or other organization is now 

occupying any of the public lands to which this act is applicable, 

for religious or educational work among the Indians, the Secretary 

of the Interior is hereby authorized to confirm such occupation to 

such society or organization, in quantity not exceeding one hundred 

and sixty acres in any one tract, so long as the same shall be so 

occupied, on such terms as he shall deem just; but nothing herein 

contained shall change or alter any claim of such society for religious or educational purposes heretofore granted by law. And hereafter in the employment of Indian police, or any other employes in 

52 

the public service among any of the Indian tribes or bands affected 

by this act, and where Indians can perform the duties required, 

those Indians who have availed themselves of the provisions of this 

act and become citizens of the United States shall be preferred. 

Provided further, That whenever the Secretary of the Interior 

shall be satisfied that any of the Indians of the Siletz Indian Reservation, in the State of Oregon, fully capable of managing their 

own business affairs, and being of the age of twenty-one years or 

upward, shall, through inheritance or otherwise, become the owner 

of more than eighty acres of land upon said reservation, he shall 

cause patents to be issued to such Indian or Indians for all of such 

lands over and above the eighty acres thereof. Said patent or patents shall be issued for the least valuable portions of said lands, 

and the same shall be discharged of any trust and free of all 

charge, incumbrance, or restriction whatsoever; and the Secretary 

of the Interior is hereby authorized and directed to ascertain, as 

soon as shall be practicable, whether any of said Indians of the 

Siletz Reservation should receive patents conveying in fee lands to 

them under the provisions of this Act. 

SECTION 4 OF THE ACT OF JUNE 18, 1934 

SEC. 4. Except as herein provided, no sale, devise, gift, exchange 

or other transfer of restricted Indian lands or of shares in the assets of any Indian tribe or corporation organized hereunder, shall 

be made or approved: Provided, however, That such lands or interests may, with the approval of the Secretary of the Interior, be 

sold, devised, or otherwise transferred to the Indian tribe in which 

the lands or shares are located or from which the shares were derived or to a successor corporation; and in all instances such lands 

or interests shall descend or be devisedø, in accordance with the 

then existing laws of the State, or Federal laws where applicable, 

in which said lands are located or in which the subject matter of 

the corporation is located,¿ to any member of such tribe or of such 

corporation or any heirs or lineal descendants of such member orø, 

except as provided by the Indian Land Consolidation Act, any other 

Indian person for whom the Secretary of the Interior determines 

that the United States may hold land in trust:¿ Provided further, 

That the Secretary of the Interior may authorize voluntary exchanges of lands of equal value and the voluntary exchange of 

shares of equal value whenever such exchange, in his judgment, is 

expedient and beneficial for or compatible with the proper consolidation of Indian lands and for the benefit of cooperative organizations. 

Æ