PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1773

Public Law 108–374

108th Congress

An Act

To amend the Indian Land Consolidation Act to improve provisions relating to

probate of trust and restricted land, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘American Indian Probate Reform

Act of 2004’’.

SEC. 2. FINDINGS.

Congress finds that—

(1) the Act of February 8, 1887 (commonly known as the

‘‘Indian General Allotment Act’’) (25 U.S.C. 331 et seq.), which

authorized the allotment of Indian reservations, did not permit

Indian allotment owners to provide for the testamentary disposition of the land that was allotted to them;

(2) that Act provided that allotments would descend

according to State law of intestate succession based on the

location of the allotment;

(3) the reliance of the Federal Government on the State

law of intestate succession with respect to the descent of allotments has resulted in numerous problems affecting Indian

tribes, members of Indian tribes, and the Federal Government,

including—

(A) the increasingly fractionated ownership of trust

and restricted land as that land is inherited by successive

generations of owners as tenants in common;

(B) the application of different rules of intestate succession to each interest of a decedent in or to trust or restricted

land if that land is located within the boundaries of more

than 1 State, which application—

(i) makes probate planning unnecessarily difficult;

and

(ii) impedes efforts to provide probate planning

assistance or advice;

(C) the absence of a uniform general probate code

for trust and restricted land, which makes it difficult for

Indian tribes to work cooperatively to develop tribal probate

codes; and

(D) the failure of Federal law to address or provide

for many of the essential elements of general probate law,

either directly or by reference, which—

(i) is unfair to the owners of trust and restricted

land (and heirs and devisees of owners); and

15 USC 2201

note.

15 USC 2201

note.

American Indian

Probate Reform

Act of 2004.

Oct. 27, 2004

[S. 1721]

118 STAT. 1774 PUBLIC LAW 108–374—OCT. 27, 2004

(ii) makes probate planning more difficult;

(4) a uniform Federal probate code would likely—

(A) reduce the number of fractionated interests in trust

or restricted land;

(B) facilitate efforts to provide probate planning assistance and advice and create incentives for owners of trust

and restricted land to engage in estate planning;

(C) facilitate intertribal efforts to produce tribal probate codes in accordance with section 206 of the Indian

Land Consolidation Act (25 U.S.C. 2205); and

(D) provide essential elements of general probate law

that are not applicable on the date of enactment of this

Act to interests in trust or restricted land; and

(5) the provisions of a uniform Federal probate code and

other forth in this Act should operate to further the policy

of the United States as stated in the Indian Land Consolidated

Act Amendments of 2000, Public Law 106–462, 102, November

7, 2000, 114 Stat. 1992.

SEC. 3. INDIAN PROBATE REFORM.

(a) NONTESTAMENTARY DISPOSITION.—Section 207 of the Indian

Land Consolidation Act (25 U.S.C. 2206) is amended by striking

subsection (a) and inserting the following:

‘‘(a) NONTESTAMENTARY DISPOSITION.—

‘‘(1) RULES OF DESCENT.—Subject to any applicable Federal

law relating to the devise or descent of trust or restricted

property, any trust or restricted interest in land or interest

in trust personalty that is not disposed of by a valid will—

‘‘(A) shall descend according to an applicable tribal

probate code approved in accordance with section 206; or

‘‘(B) in the case of a trust or restricted interest in

land or interest in trust personalty to which a tribal probate

code does not apply, shall descend in accordance with—

‘‘(i) paragraphs (2) through (5); and

‘‘(ii) other applicable Federal law.

‘‘(2) RULES GOVERNING DESCENT OF ESTATE.—

‘‘(A) SURVIVING SPOUSE.—If there is a surviving spouse

of the decedent, such spouse shall receive trust and

restricted land and trust personalty in the estate as follows:

‘‘(i) If the decedent is survived by 1 or more eligible

heirs described in subparagraph (B) (i), (ii), (iii), or

(iv), the surviving spouse shall receive 1⁄3 of the trust

personalty of the decedent and a life estate without

regard to waste in the interests in trust or restricted

lands of the decedent.

‘‘(ii) If there are no eligible heirs described in

subparagraph (B) (i), (ii), (iii), or (iv), the surviving

spouse shall receive all of the trust personalty of the

decedent and a life estate without regard to waste

in the trust or restricted lands of the decedent.

‘‘(iii) The remainder shall pass as set forth in

subparagraph (B).

‘‘(iv) Trust personalty passing to a surviving spouse

under the provisions of this subparagraph shall be

maintained by the Secretary in an account as trust

personalty, but only if such spouse is Indian.

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1775

‘‘(B) INDIVIDUAL AND TRIBAL HEIRS.—Where there is

no surviving spouse of the decedent, or there is a remainder

interest pursuant to subparagraph (A), the trust or

restricted estate or such remainder shall, subject to subparagraphs (A) and (D), pass as follows:

‘‘(i) To those of the decedent’s children who are

eligible heirs (or if 1 or more of such children do

not survive the decedent, the children of any such

deceased child who are eligible heirs, by right of representation, but only if such children of the deceased

child survive the decedent) in equal shares.

‘‘(ii) If the property does not pass under clause

(i), to those of the decedent’s surviving great-grandchildren who are eligible heirs, in equal shares.

‘‘(iii) If the property does not pass under clause

(i) or (ii), to the decedent’s surviving parent who is

an eligible heir, and if both parents survive the

decedent and are both eligible heirs, to both parents

in equal shares.

‘‘(iv) If the property does not pass under clause

(i), (ii), or (iii), to those of the decedent’s surviving

siblings who are eligible heirs, in equal shares.

‘‘(v) If the property does not pass under clause

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

over the interests in trust or restricted lands;

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

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

a parcel of trust or restricted land may acquire an interest

that would otherwise descend under that clause by paying

into the estate of the decedent, before the close of the

probate of the estate, the fair market value of the interest

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

for such interest, the highest bidder shall acquire the

interest.

‘‘(C) NO INDIAN TRIBE.—

‘‘(i) IN GENERAL.—If there is no Indian tribe with

jurisdiction over the interests in trust or restricted

lands that would otherwise descend under subparagraph (B)(v), then such interests shall be divided

equally among co-owners of trust or restricted interests

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

to the United States, provided that any such interests

in land passing to the United States under this

subparagraph shall be sold by the Secretary and the

proceeds from such sale deposited into the land acquisition fund established under section 216 (25 U.S.C.

2215) and used for the purposes described in subsection

(b) of that section.

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

to the United States under this subparagraph are in

a parcel of land that is contiguous to another parcel

of trust or restricted land, the Secretary shall give

the owner or owners of the trust or restricted interest

in the contiguous parcel the first opportunity to purchase the interest at not less than fair market value

determined in accordance with this Act. If more than

118 STAT. 1776 PUBLIC LAW 108–374—OCT. 27, 2004

1 such owner in the contiguous parcel request to purchase the parcel, the Secretary shall sell the parcel

by public auction or sealed bid (as determined by the

Secretary) at not less than fair market value to the

owner of a trust or restricted interest in the contiguous

parcel submitting the highest bid.

‘‘(D) INTESTATE DESCENT OF SMALL FRACTIONAL

INTERESTS IN LAND.— ‘‘(i) GENERAL RULE.—Notwithstanding subparagraphs (A) and (B), and subject to any applicable Federal law, any trust or restricted interest in land in

the decedent’s estate that is not disposed of by a valid

will and represents less than 5 percent of the entire

undivided ownership of the parcel of land of which

such interest is a part, as evidenced by the decedent’s

estate inventory at the time of the heirship determination, shall descend in accordance with clauses (ii)

through (iv).

‘‘(ii) SURVIVING SPOUSE.—If there is a surviving

spouse, and such spouse was residing on a parcel of

land described in clause (i) at the time of the decedent’s

death, the spouse shall receive a life estate without

regard to waste in the decedent’s trust or restricted

interest in only such parcel, and the remainder interest

in that parcel shall pass in accordance with clause

(iii).

‘‘(iii) SINGLE HEIR RULE.—Where there is no life

estate created under clause (ii) or there is a remainder

interest under that clause, the trust or restricted

interest or remainder interest that is subject to this

subparagraph shall descend, in trust or restricted

status, to—

‘‘(I) the decedent’s surviving child, but only

if such child is an eligible heir; and if 2 or more

surviving children are eligible heirs, then to the

oldest of such children;

‘‘(II) if the interest does not pass under subclause (I), the decedent’s surviving grandchild, but

only if such grandchild is an eligible heir; and

if 2 or more surviving grandchildren are eligible

heirs, then to the oldest of such grandchildren;

‘‘(III) if the interest does not pass under subclause (I) or (II), the decedent’s surviving great

grandchild, but only if such great grandchild is

an eligible heir; and if 2 or more surviving great

grandchildren are eligible heirs, then to the oldest

of such great grandchildren;

‘‘(IV) if the interest does not pass under subclause (I), (II), or (III), the Indian tribe with jurisdiction over the interest; or

‘‘(V) if the interest does not pass under subclause (I), (II), or (III), and there is no such Indian

tribe to inherit the property under subclause (IV),

the interest shall be divided equally among coowners of trust or restricted interests in the parcel;

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

United States, to be sold, and the proceeds from

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1777

sale used, in the same manner provided in

subparagraph (C).

The determination of which person is the oldest eligible

heir for inheritance purposes under this clause shall be

made by the Secretary in the decedent’s probate proceeding

and shall be consistent with the provisions of this Act.

‘‘(iv) EXCEPTIONS.—Notwithstanding clause (iii)—

‘‘(I)(aa) the heir of an interest under clause

(iii), unless the heir is a minor or incompetent

person, may agree in writing entered into the

record of the decedent’s probate proceeding to

renounce such interest, in trust or restricted

status, in favor of—

‘‘(AA) any other eligible heir or Indian

person related to the heir by blood, but in

any case never in favor of more than 1 such

heir or person;

‘‘(BB) any co-owner of another trust or

restricted interest in such parcel of land; or

‘‘(CC) the Indian tribe with jurisdiction

over the interest, if any; and

‘‘(bb) the Secretary shall give effect to such

agreement in the distribution of the interest in

the probate proceeding; and

‘‘(II) the governing body of the Indian tribe

with jurisdiction over an interest in trust or

restricted land that is subject to the provisions

of this subparagraph may adopt a rule of intestate

descent applicable to such interest that differs from

the order of decedent set forth in clause (iii). The

Secretary shall apply such rule to the interest

in distributing the decedent’s estate, but only if—

‘‘(aa) a copy of the tribal rule is delivered

to the official designated by the Secretary to

receive copies of tribal rules for the purposes

of this clause;

‘‘(bb) the tribal rule provides for the intestate inheritance of such interest by no more

than 1 heir, so that the interest does not further fractionate;

‘‘(cc) the tribal rule does not apply to any

interest disposed of by a valid will;

‘‘(dd) the decedent died on or after the

date described in subsection (b) of section 8

of the American Indian Probate Act of 2004,

or on or after the date on which a copy of

the tribal rule was delivered to the Secretary

pursuant to item (aa), whichever is later; and

‘‘(ee) the Secretary does not make a determination within 90 days after a copy of the

tribal rule is delivered pursuant to item (aa)

that the rule would be unreasonably difficult

to administer or does not conform with the

requirements in item (bb) or (cc).

‘‘(v) RULE OF CONSTRUCTION.—This subparagraph

shall not be construed to limit a person’s right to

Deadline.

Applicability.

118 STAT. 1778 PUBLIC LAW 108–374—OCT. 27, 2004

devise any trust or restricted interest by way of a

valid will in accordance with subsection (b).

‘‘(3) RIGHT OF REPRESENTATION.—If, under this subsection,

all or any part of the estate of a decedent is to pass to children

of a deceased child by right of representation, that part is

to be divided into as many equal shares as there are living

children of the decedent and pre-deceased children who left

issue who survive the decedent. Each living child of the

decedent, if any, shall receive 1 share, and the share of each

pre-deceased child shall be divided equally among the predeceased child’s children.

‘‘(4) SPECIAL RULE RELATING TO SURVIVAL.—In the case

of intestate succession under this subsection, if an individual

fails to survive the decedent by at least 120 hours, as established by clear and convincing evidence—

‘‘(A) the individual shall be deemed to have predeceased

the decedent for the purpose of intestate succession; and

‘‘(B) the heirs of the decedent shall be determined

in accordance with this section.

‘‘(5) STATUS OF INHERITED INTERESTS.—Except as provided

in paragraphs (2) (A) and (D) regarding the life estate of a

surviving spouse, a trust or restricted interest in land or trust

personalty that descends under the provisions of this subsection

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

as such interest was held immediately prior to the decedent’s

death.’’.

(b) TESTAMENTARY DISPOSITION.—Section 207 of the Indian

Land Consolidation Act (25 U.S.C. 2206) is amended by striking

subsection (b) and inserting the following:

‘‘(b) TESTAMENTARY DISPOSITION.—

‘‘(1) GENERAL DEVISE OF AN INTEREST IN TRUST OR

RESTRICTED LAND.—

‘‘(A) IN GENERAL.—Subject to any applicable Federal

law relating to the devise or descent of trust or restricted

land, or a tribal probate code approved by the Secretary

in accordance with section 206, the owner of a trust or

restricted interest in land may devise such interest to—

‘‘(i) any lineal descendant of the testator;

‘‘(ii) any person who owns a preexisting undivided

trust or restricted interest in the same parcel of land;

‘‘(iii) the Indian tribe with jurisdiction over the

interest in land; or

‘‘(iv) any Indian;

in trust or restricted status.

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

or restricted interest in land pursuant to subparagraph

(A) to an Indian or the Indian tribe with jurisdiction over

the interest shall be deemed to be a devise of the interest

in trust or restricted status. Any devise of a trust or

restricted interest in land to a person who is only eligible

to be a devisee under clause (i) or (ii) of subparagraph

(A) shall be presumed to be a devise of the interest in

trust or restricted status unless language in such devise

clearly evidences an intent on the part of the testator

that the interest is to pass as a life estate or fee interest

in accordance with paragraph (2)(A).

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1779

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

OR IN FEE.—

‘‘(A) IN GENERAL.—Except as provided under any

applicable Federal law, any trust or restricted interest

in land that is not devised in accordance with paragraph

(1)(A) may be devised only—

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

remainder being devised only in accordance with

subparagraph (B) or paragraph (1); or

‘‘(ii) except as provided in subparagraph (B), as

a fee interest without Federal restrictions against

alienation to any person who is not eligible to be a

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

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

in trust or restricted land that is subject to section 4

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

only in accordance with—

‘‘(i) that section;

‘‘(ii) subparagraph (A)(i); or

‘‘(iii) paragraph (1)(A);

provided that nothing in this section or in section 4 of

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

to authorize the devise of any interest in trust or restricted

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

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

‘‘(3) GENERAL DEVISE OF AN INTEREST IN TRUST PERSONALTY.—

‘‘(A) TRUST PERSONALITY DEFINED.—The term ‘trust

personalty’ as used in this section includes all funds and

securities of any kind which are held in trust in an individual Indian money account or otherwise supervised by

the Secretary.

‘‘(B) IN GENERAL.—Subject to any applicable Federal

law relating to the devise or descent of such trust personalty, or a tribal probate code approved by the Secretary

in accordance with section 206, the owner of an interest

in trust personalty may devise such an interest to any

person or entity.

‘‘(C) MAINTENANCE AS TRUST PERSONALTY.—In the case

of a devise of an interest in trust personalty to a person

or Indian tribe eligible to be a devisee under paragraph

(1)(A), the Secretary shall maintain and continue to manage

such interests as trust personalty.

‘‘(D) DIRECT DISBURSEMENT AND DISTRIBUTION.—In the

case of a devise of an interest in trust personalty to a

person or Indian tribe not eligible to be a devisee under

paragraph (1)(A), the Secretary shall directly disburse and

distribute such personalty to the devisee.

‘‘(4) INVALID DEVISES AND WILLS.—

‘‘(A) LAND.—Any trust or restricted interest in land

that is not devised in accordance with paragraph (1) or

(2) or that is not disposed of by a valid will shall descend

in accordance with the applicable law of intestate succession as provided for in subsection (a).

‘‘(B) PERSONALTY.—Any trust personalty that is not

disposed of by a valid will shall descend in accordance

118 STAT. 1780 PUBLIC LAW 108–374—OCT. 27, 2004

with the applicable law of intestate succession as provided

for in subsection (a).’’.

(c) JOINT TENANCY; RIGHT OF SURVIVORSHIP.—Section 207(c)

of the Indian Land Consolidation Act (25 U.S.C. 2206(c)) is amended

by striking all that follows the heading, ‘‘Joint Tenancy; Right

of Survivorship’’, and inserting the following:

‘‘(1) PRESUMPTION OF JOINT TENANCY.—If a testator devises

trust or restricted interests in the same parcel of land to

more than 1 person, in the absence of clear and express language in the devise stating that the interest is to pass to

the devisees as tenants in common, the devise shall be presumed to create a joint tenancy with the right of survivorship

in the interests involved.

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

devise of an interest in trust or restricted land where the

will in which such devise is made was executed prior to the

date that is 1 year after the date on which the Secretary

publishes the certification required by section 8(a)(4) of the

American Indian Probate Reform Act of 2004.’’.

(d) RULE OF CONSTRUCTION.—Section 207 of the Indian Land

Consolidation Act (25 U.S.C. 2206) is amended by adding at the

end the following:

‘‘(h) APPLICABLE FEDERAL LAW.—

‘‘(1) IN GENERAL.—Any references in subsections (a) and

(b) to applicable Federal law include—

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

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

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

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

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

‘‘(2) NO EFFECT ON LAWS.—Nothing in this Act amends

or otherwise affects the application of any law described in

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

‘‘(A) trust or restricted land located on 1 or more specific Indian reservations that are expressly identified in

such law; or

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

tribes that are expressly identified in such law.

‘‘(i) RULES OF INTERPRETATION.—In the absence of a contrary

intent, and except as otherwise provided under this Act, applicable

Federal law, or a tribal probate code approved by the Secretary

pursuant to section 206, wills shall be construed as to trust and

restricted land and trust personalty in accordance with the following

rules:

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

will shall be construed to apply to all trust and restricted

land and trust personalty which the testator owned at his

death, including any such land or personalty acquired after

the execution of his will.

‘‘(2) CLASS GIFTS.—

‘‘(A) NO DIFFERENTIATION BETWEEN RELATIONSHIP BY

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

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

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

Terms of relationship that do not differentiate relationships

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

Applicability.

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1781

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

to include both types of relationships.

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

OF ASCERTAINING CLASS.—A devise of trust or restricted

interest in land or an interest in trust personalty to the

testator’s or another designated person’s ‘heirs’, ‘next of

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

including the spouse, who would be entitled to take under

the provisions of this Act for nontestamentary disposition.

The class is to be ascertained as of the date of the testator’s

death.

‘‘(C) TIME FOR ASCERTAINING CLASS.—In construing a

devise to a class other than a class described in subparagraph (B), the class shall be ascertained as of the time

the devise is to take effect in enjoyment. The surviving

issue of any member of the class who is then dead shall

take by right of representation the share which their

deceased ancestor would have taken.

‘‘(3) MEANING OF ‘DIE WITHOUT ISSUE’ AND SIMILAR

PHRASES.—In any devise under this chapter, the words ‘die

without issue’, ‘die without leaving issue’, ‘have no issue’, or

words of a similar import shall be construed to mean that

an individual had no lineal descendants in his lifetime or at

his death, and not that there will be no lineal descendants

at some future time.

‘‘(4) PERSONS BORN OUT OF WEDLOCK.—In construing provisions of this chapter relating to lapsed and void devises, and

in construing a devise to a person or persons described by

relationship to the testator or to another, a person born out

of wedlock shall be considered the child of the natural mother

and also of the natural father.

‘‘(5) LAPSED DEVISES.—Subject to the provisions of subsection (b), where the testator devises or bequeaths a trust

or restricted interest in land or trust personalty to the testator’s

grandparents or to the lineal descendent of a grandparent,

and the devisee or legatee dies before the testator leaving

lineal descendents, such descendents shall take the interest

so devised or bequeathed per stirpes.

‘‘(6) VOID DEVISES.—Except as provided in paragraph (5),

and if the disposition shall not be otherwise expressly provided

for by a tribal probate code approved under section 206 (25

U.S.C. 2205), if a devise other than a residuary devise of

a trust or restricted interest in land or trust personalty fails

for any reason, such interest shall become part of the residue

and pass, subject to the provisions of subsection (b), to the

other residuary devisees, if any, in proportion to their respective

shares or interests in the residue.

‘‘(7) FAMILY CEMETERY PLOT.—If a family cemetery plot

owned by the testator at his decease is not mentioned in the

decedent’s will, the ownership of the plot shall descend to

his heirs as if he had died intestate.

‘‘(j) HEIRSHIP BY KILLING.—

‘‘(1) HEIR BY KILLING DEFINED.—As used in this subsection,

‘heir by killing’ means any person who knowingly participates,

either as a principal or as an accessory before the fact, in

the willful and unlawful killing of the decedent.

118 STAT. 1782 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘(2) NO ACQUISITION OF PROPERTY BY KILLING.—Subject

to any applicable Federal law relating to the devise or descent

of trust or restricted land, no heir by killing shall in any

way acquire any trust or restricted interests in land or interests

in trust personalty as the result of the death of the decedent,

but such property shall pass in accordance with this subsection.

‘‘(3) DESCENT, DISTRIBUTION, AND RIGHT OF SURVIVORSHIP.—

The heir by killing shall be deemed to have predeceased the

decedent as to decedent’s trust or restricted interests in land

or trust personalty which would have passed from the decedent

or his estate to such heir—

‘‘(A) under intestate succession under this section;

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

‘‘(C) as the surviving spouse;

‘‘(D) by devise;

‘‘(E) as a reversion or a vested remainder;

‘‘(F) as a survivorship interest; and

‘‘(G) as a contingent remainder or executory or other

future interest.

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

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

held by only the heir by killing and the decedent as joint

tenants, joint owners, or joint obligees shall pass upon

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

heir by killing had predeceased the decedent.

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

held jointly by 3 or more persons, including both the heir

by killing and the decedent, any income which would have

accrued to the heir by killing as a result of the death

of the decedent shall pass to the estate of the decedent

as if the heir by killing had predeceased the decedent

and any surviving joint tenants.

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

trust personalty that is held in a joint tenancy with the

right of survivorship shall be severed from the joint tenancy

as though the property held in the joint tenancy were

to be severed and distributed equally among the joint tenants and the decedent’s interest shall pass to his estate;

the remainder of the interests shall remain in joint tenancy

with right of survivorship among the surviving joint tenants.

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

is held by a third person whose possession expires upon the

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

for the period of time following the decedent’s death equal

to the life expectancy of the decedent but for the killing.

‘‘(6) PREADJUDICATION RULE.—

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

whether by indictment, information, or otherwise by the

United States, a tribe, or any State, with voluntary manslaughter or homicide in connection with a decedent’s

death, then any and all trust or restricted land or trust

personalty that would otherwise pass to that person from

the decedent’s estate shall not pass or be distributed by

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1783

the Secretary until the charges have been resolved in

accordance with the provisions of this paragraph.

‘‘(B) DISMISSAL OR WITHDRAWAL.—Upon dismissal or

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

such land and personalty shall pass as if no charge had

been filed or made.

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

the exhaustion of all appeals, if any, the trust and restricted

land and trust personalty in the estate shall pass in accordance with this subsection.

‘‘(7) BROAD CONSTRUCTION; POLICY OF SUBSECTION.—This

subsection shall not be considered penal in nature, but shall

be construed broadly in order to effect the policy that no person

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

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

law or a tribal probate code approved under section 206, the

provisions of this subsection shall govern the probate of estates

containing trust and restricted interests in land or trust personalty.

‘‘(2) PRETERMITTED SPOUSES AND CHILDREN.—

‘‘(A) SPOUSES.—

‘‘(i) IN GENERAL.—Except as provided in clause

(ii), if the surviving spouse of a testator married the

testator after the testator executed the will of the

testator, the surviving spouse shall receive the intestate share in the decedent’s trust or restricted land

and trust personalty that the spouse would have

received if the testator had died intestate.

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

trust or restricted interest land where—

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

the date of enactment of this subparagraph;

‘‘(II)(aa) the spouse of a testator is a nonIndian; and

‘‘(bb) the testator devised the interests in trust

or restricted land of the testator to 1 or more

Indians;

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

the will or other evidence, that the will was made

in contemplation of the marriage of the testator

to the surviving spouse;

‘‘(IV) the will expresses the intention that the

will is to be effective notwithstanding any subsequent marriage; or

‘‘(V)(aa) the testator provided for the spouse

by a transfer of funds or property outside the

will; and

‘‘(bb) an intent that the transfer be in lieu

of a testamentary provision is demonstrated by

statements of the testator or through a reasonable

inference based on the amount of the transfer or

other evidence.

‘‘(iii) SPOUSES MARRIED AT THE TIME OF THE WILL.— Should the surviving spouse of the testator be omitted

from the will of the testator, the surviving spouse

118 STAT. 1784 PUBLIC LAW 108–374—OCT. 27, 2004

shall be treated, for purposes of trust or restricted

land or trust personalty in the testator’s estate, in

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

as though there was no will but only if—

‘‘(I) the testator and surviving spouse were

continuously married without legal separation for

the 5-year period preceding the decedent’s death;

‘‘(II) the testator and surviving spouse have

a surviving child who is the child of the testator;

‘‘(III) the surviving spouse has made substantial payments toward the purchase of, or improvements to, the trust or restricted land in such

estate; or

‘‘(IV) the surviving spouse is under a binding

obligation to continue making loan payments for

the trust or restricted land for a substantial period

of time;

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

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

‘‘(B) CHILDREN.—

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

of the testator before the birth or adoption of 1 or

more children of the testator, and the omission of the

children from the will is a product of inadvertence

rather than an intentional omission, the children shall

share in the trust or restricted interests in land and

trust personalty as if the decedent had died intestate.

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

an heir by virtue of adoption under the Act of July

8, 1940 (25 U.S.C. 372a), shall be treated as the child

of a decedent under this subsection.

‘‘(iii) ADOPTED-OUT CHILDREN.—

‘‘(I) IN GENERAL.—For purposes of this Act,

an adopted person shall not be considered the child

or issue of his natural parents, except in distributing the estate of a natural kin, other than the

natural parent, who has maintained a family relationship with the adopted person. If a natural

parent shall have married the adopting parent,

the adopted person for purposes of inheritance by,

from and through him shall also be considered

the issue of such natural parent.

‘‘(II) ELIGIBLE HEIR PURSUANT TO OTHER FEDERAL LAW OR TRIBAL LAW.—Notwithstanding the

provisions of subparagraph (B)(iii)(I), other Federal

laws and laws of the Indian tribe with jurisdiction

over the trust or restricted interest in land may

otherwise define the inheritance rights of adoptedout children.

‘‘(3) DIVORCE.—

‘‘(A) SURVIVING SPOUSE.—

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

from a decedent, or whose marriage to the decedent

has been annulled, shall not be considered to be a

surviving spouse unless, by virtue of a subsequent

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1785

marriage, the individual is married to the decedent

at the time of death of the decedent.

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

not dissolve a marriage, and terminate the status of

husband and wife, shall not be considered a divorce

for the purpose of this subsection.

‘‘(iii) NO EFFECT ON ADJUDICATIONS.—Nothing in

clause (i) shall prevent the Secretary from giving effect

to a property right settlement relating to a trust or

restricted interest in land or an interest in trust

personalty if 1 of the parties to the settlement dies

before the issuance of a final decree dissolving the

marriage of the parties to the property settlement.

‘‘(B) EFFECT OF SUBSEQUENT DIVORCE ON A WILL OR

DEVISE.—

‘‘(i) IN GENERAL.—If, after executing a will, a testator is divorced or the marriage of the testator is

annulled, as of the effective date of the divorce or

annulment, any disposition of trust or restricted

interests in land or of trust personalty made by the

will to the former spouse of the testator shall be considered to be revoked unless the will expressly provides

otherwise.

‘‘(ii) PROPERTY.—Property that is prevented from

passing to a former spouse of a decedent under clause

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

the decedent.

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

will that is considered to be revoked solely by operation

of this subparagraph shall be revived by the remarriage

of a testator to the former spouse of the testator.

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

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

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

‘‘(5) ADVANCEMENTS OF TRUST PERSONALTY DURING LIFE- TIME; 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.

118 STAT. 1786 PUBLIC LAW 108–374—OCT. 27, 2004

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

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

lines of relationship is entitled to only a single share of the

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

estate based on the relationship that would entitle such person

to the larger share.

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

the Secretary shall notify each owner of trust and restricted

land of the provisions of this Act.

‘‘(B) COMBINED NOTICES.—The notice under subparagraph (A) may, at the discretion of the Secretary, be provided with the notice required under subsection (a) of

section 8 of the American Indian Probate Reform Act of

2004.

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

may renounce or disclaim an inheritance of a trust or

restricted interest in land or in trust personalty through

intestate succession or devise, either in full or subject to

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

interest in land), in accordance with subparagraph (B),

by filing a signed and acknowledged declaration with the

probate decisionmaker prior to entry of a final probate

order. No interest so renounced or disclaimed shall be

considered to have vested in the renouncing or disclaiming

heir or devisee, and the renunciation or disclaimer shall

not be considered to be a transfer or gift of the renounced

or disclaimed interest.

‘‘(B) ELIGIBLE RECIPIENTS OF RENOUNCED OR DISCLAIMED INTERESTS; NOTICE TO RECIPIENTS.—

‘‘(i) INTERESTS IN LAND.—A trust or restricted

interest in land may be renounced or disclaimed only

in favor of—

‘‘(I) an eligible heir;

‘‘(II) any person who would have been eligible

to be a devisee of the interest in question pursuant

to subsection (b)(1)(A) (but only in cases where

the renouncing person is a devisee of the interest

under a valid will); or

‘‘(III) the Indian tribe with jurisdiction over

the interest in question;

and the interest so renounced shall pass to its recipient

in trust or restricted status.

‘‘(ii) TRUST PERSONALTY.—An interest in trust

personalty may be renounced or disclaimed in favor

of any person who would be eligible to be a devisee

of such an interest under subsection (b)(3) and shall

pass to the recipient in accordance with the provisions

of that subsection.

‘‘(iii) UNAUTHORIZED RENUNCIATIONS AND DIS- CLAIMERS.—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.

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1787

‘‘(C) ACCEPTANCE OF INTEREST.—A renunciation or disclaimer of an interest filed in accordance with this paragraph shall be considered accepted when implemented in

a final order by a decisionmaker, and shall thereafter be

irrevocable. No renunciation or disclaimer of an interest

shall be included in such order unless the recipient of

the interest has been given notice of the renunciation or

disclaimer and has not refused to accept the interest. All

disclaimers and renunciations filed and implemented in

probate orders made effective prior to the date of enactment

of the American Indian Probate Reform Act of 2004 are

hereby ratified.

‘‘(D) RULE OF CONSTRUCTION.—Nothing in this paragraph shall be construed to allow the renunciation of an

interest that is subject to the provisions of section

207(a)(2)(D) (25 U.S.C. 2206(a)(2)(D)) in favor of more than

1 person.

‘‘(9) CONSOLIDATION AGREEMENTS.—

‘‘(A) IN GENERAL.—During the pendency of probate,

the decisionmaker is authorized to approve written consolidation agreements effecting exchanges or gifts voluntarily

entered into between the decedent’s eligible heirs or devisees, to consolidate interests in any tract of land included

in the decedent’s trust inventory. Such agreements may

provide for the conveyance of interests already owned by

such heirs or devisees in such tracts, without having to

comply with the Secretary’s rules and requirements otherwise applicable to conveyances by deed of trust or restricted

interests in land.

‘‘(B) EFFECTIVE.—An agreement approved under

subparagraph (A) shall be considered final when implemented in an order by a decisionmaker. The final probate

order shall direct any changes necessary to the Secretary’s

land records, to reflect and implement the terms of the

approved agreement.

‘‘(C) EFFECT ON PURCHASE OPTION AT PROBATE.—Any

interest in trust or restricted land that is subject to a

consolidation agreement under this paragraph or section

207(e) (25 U.S.C. 2206(e)) shall not be available for purchase under section 207(p) (25 U.S.C. 2206(p)) unless the

decisionmaker determines that the agreement should not

be approved.’’.

SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN LANDS.

Section 205 of the Indian Land Consolidation Act (25 U.S.C.

2204) (as amended by section 6(a)(2)) is amended by adding at

the end the following:

‘‘(d) PARTITION OF HIGHLY FRACTIONATED INDIAN LANDS.—

‘‘(1) APPLICABILITY.—This subsection shall be applicable

only to parcels of land (including surface and subsurface

interests, except with respect to a subsurface interest that

has been severed from the surface interest, in which case

this subsection shall apply only to the surface interest) which

the Secretary has determined, pursuant to paragraph (2)(B),

to be parcels of highly fractionated Indian land.

118 STAT. 1788 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘(2) REQUIREMENTS.—Each partition action under this subsection shall be conducted by the Secretary in accordance with

the following requirements:

‘‘(A) APPLICATION.—Upon receipt of any payment or

bond required under subparagraph (B), the Secretary shall

commence a process for partitioning a parcel of land by

sale in accordance with the provisions of this subsection

upon receipt of an application by—

‘‘(i) the Indian tribe with jurisdiction over the subject land that owns an undivided interest in the parcel

of land; or

‘‘(ii) any person owning an undivided interest in

the parcel of land who is eligible to bid at the sale

of the parcel pursuant to subclause (II), (III), or (IV)

of subparagraph (I)(i);

provided that no such application shall be valid or considered if it is received by the Secretary prior to the date

that is 1 year after the date on which notice is published

pursuant to section 8(a)(4) of the American Indian Probate

Reform Act of 2004.

‘‘(B) COSTS OF SERVING NOTICE AND PUBLICATION.—

The costs of serving and publishing notice under subparagraph (F) shall be borne by the applicant. Upon receiving

written notice from the Secretary, the applicant must pay

to the Secretary an amount determined by the Secretary

to be the estimated costs of such service of notice and

publication, or furnish a sufficient bond for such estimated

costs within the time stated in the notice, failing which,

unless an extension is granted by the Secretary, the Secretary shall not be required to commence the partition

process under subparagraph (A) and may deny the application. The Secretary shall have the discretion and authority

in any case to waive either the payment or the bond (or

any portion of such payment or bond) otherwise required

by this subparagraph, upon making a determination that

such waiver will further the policies of this Act.

‘‘(C) DETERMINATION.—Upon receipt of an application

pursuant to subparagraph (A), the Secretary shall determine whether the subject parcel meets the requirements

set forth in section 202(6) (25 U.S.C. 2201(6)) to be classified as a parcel of highly fractionated Indian land.

‘‘(D) CONSENT REQUIREMENTS.—

‘‘(i) IN GENERAL.—A parcel of land may be partitioned under this subsection only if the applicant

obtains the written consent of—

‘‘(I) the Indian tribe with jurisdiction over the

subject land if such Indian tribe owns an undivided

interest in the parcel;

‘‘(II) any owner who, for the 3-year period

immediately preceding the date on which the Secretary receives the application, has

‘‘(aa) continuously maintained a bona fide

residence on the parcel; or

‘‘(bb) operated a bona fide farm, ranch,

or other business on the parcel; and

‘‘(III) the owners (including parents of minor

owners and legal guardians of incompetent owners)

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1789

of at least 50 percent of the undivided interests

in the parcel, but only in cases where the Secretary

determines that, based on the final appraisal prepared pursuant to subparagraph (F), any 1 owner’s

total undivided interest in the parcel (not including

the interest of an Indian tribe or that of the owner

requesting the partition) has a value in excess

of $1,500.

Any consent required by this clause must be in writing

and acknowledged before a notary public (or other

official authorized to make acknowledgments), and

shall be approved by Secretary unless the Secretary

has reason to believe that the consent was obtained

as a result of fraud or undue influence.

‘‘(ii) CONSENT BY THE SECRETARY ON BEHALF OF

CERTAIN INDIVIDUALS.—For the purposes of clause

(i)(III), the Secretary may consent on behalf of—

‘‘(I) undetermined heirs of trust or restricted

interests and owners of such interests who are

minors and legal incompetents having no parents

or legal guardian; and

‘‘(II) missing owners or owners of trust or

restricted interests whose whereabouts are

unknown, but only after a search for such owners

has been completed in accordance with the provisions of this subsection.

‘‘(E) APPRAISAL.—After the Secretary has determined

that the subject parcel is a parcel of highly fractionated

Indian land pursuant to subparagraph (C), the Secretary

shall cause to be made, in accordance with the provisions

of this Act for establishing fair market value, an appraisal

of the fair market value of the subject parcel.

‘‘(F) NOTICE TO OWNERS ON COMPLETION OF

APPRAISAL.—Upon completion of the appraisal, the Secretary shall give notice of the requested partition and

appraisal to all owners of undivided interests in the parcel,

in accordance with principles of due process. Such notice

shall include the following requirements:

‘‘(i) WRITTEN NOTICE.—The Secretary shall attempt

to give each owner written notice of the partition action

stating the following:

‘‘(I) That a proceeding to partition the parcel

of land by sale has been commenced.

‘‘(II) The legal description of the subject parcel.

‘‘(III) The owner’s ownership interest in the

subject parcel as evidenced by the Secretary’s

records as of the date that owners are determined

in accordance with clause (ii).

‘‘(IV) The results of the appraisal.

‘‘(V) The owner’s right to receive a copy of

the appraisal upon written request.

‘‘(VI) The owner’s right to comment on or

object to the proposed partition and the appraisal.

‘‘(VII) That the owner must timely comment

on or object in writing to the proposed partition

or the appraisal, in order to receive notice of

approval of the appraisal and right to appeal.

118 STAT. 1790 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘(VIII) The date by which the owner’s written

comments or objections must be received, which

shall not be less than 90 days after the date that

the notice is mailed under this clause or last published under clause (ii)(II).

‘‘(IX) The address for requesting copies of the

appraisal and for submitting written comments

or objections.

‘‘(X) The name and telephone number of the

official to be contacted for purposes of obtaining

information regarding the proceeding, including

the time and date of the auction of the land or

the date for submitting sealed bids.

‘‘(XI) Any other information the Secretary

deems to be appropriate.

‘‘(ii) MANNER OF SERVICE.—

‘‘(I) SERVICE BY CERTIFIED MAIL.—The Secretary shall use due diligence to provide all owners

of interests in the subject parcel, as evidenced

by the Secretary’s records at the time of the determination under subparagraph (C), with actual

notice of the partition proceedings by mailing a

copy of the written notice described in clause (i)

by certified mail, restricted delivery, to each such

owner at the owner’s last known address. For purposes of this subsection, owners shall be determined from the Secretary’s land title records as

of the date of the determination under subparagraph (C) or a date that is not more than 90

days prior to the date of mailing under this clause,

whichever is later. In the event the written notice

to an owner is returned undelivered, the Secretary

shall attempt to obtain a current address for such

owner by conducting a reasonable search

(including a reasonable search of records maintained by local, State, Federal and tribal governments and agencies) and by inquiring with the

Indian tribe with jurisdiction over the subject

parcel, and, if different from that tribe, the Indian

tribe of which the owner is a member, and, if

successful in locating any such owner, send written

notice by certified mail in accordance with this

subclause.

‘‘(II) NOTICE BY PUBLICATION.—The Secretary

shall give notice by publication of the partition

proceedings to all owners that the Secretary was

unable to serve pursuant to subclause (I), and

to unknown heirs and assigns by—

‘‘(aa) publishing the notice described in

clause (i) at least 2 times in a newspaper

of general circulation in the county or counties

where the subject parcel of land is located

or, if there is an Indian tribe with jurisdiction

over the parcel of land and that tribe publishes

a tribal newspaper or newsletter at least once

every month, 1 time in such newspaper of

Newspaper.

Deadline.

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1791

general circulation and 1 time in such tribal

newspaper or newsletter;

‘‘(bb) posting such notice in a conspicuous

place in the tribal headquarters or administration building (or such other tribal building

determined by the Secretary to be most appropriate for giving public notice) of the Indian

tribe with jurisdiction over the parcel of land,

if any; and

‘‘(cc) in addition to the foregoing, in the

Secretary’s discretion, publishing notice in any

other place or means that the Secretary determines to be appropriate.

‘‘(G) REVIEW OF COMMENTS ON APPRAISAL.—

‘‘(i) IN GENERAL.—After reviewing and considering

comments or information timely submitted by any

owner of an interest in the parcel in response to the

notice required under subparagraph (F), the Secretary

may, consistent with the provisions of this Act for

establishing fair market value—

‘‘(I) order a new appraisal; or

‘‘(II) approve the appraisal;

provided that if the Secretary orders a new appraisal under

subclause (I), notice of the new appraisal shall be given

as specified in clause (ii).

‘‘(ii) NOTICE.—Notice shall be given—

‘‘(I) in accordance with subparagraph (H),

where the new appraisal results in a higher valuation of the land; or

‘‘(II) in accordance with subparagraph (F)(ii),

where the new appraisal results in a lower valuation of the land.

‘‘(H) NOTICE TO OWNERS OF APPROVAL OF APPRAISAL

AND RIGHT TO APPEAL.—Upon making the determination

under subparagraph (G), the Secretary shall provide to

the Indian tribe with jurisdiction over the subject land

and to all persons who submitted written comments on

or objections to the proposed partition or appraisal, a written notice to be served on such tribe and persons by certified mail. Such notice shall state—

‘‘(i) the results of the appraisal;

‘‘(ii) that the owner has the right to review a

copy of the appraisal upon request;

‘‘(iii) that the land will be sold for not less than

the appraised value, subject to the consent requirements under paragraph (2)(D);

‘‘(iv) the time of the sale or for submitting bids

under subparagraph (I);

‘‘(v) that the owner has the right, under the Secretary’s regulations governing administrative appeals,

to pursue an administrative appeal from—

‘‘(I) the determination that the land may be

partitioned by sale under the provisions of this

section; and

‘‘(II) the Secretary’s order approving the

appraisal;

118 STAT. 1792 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘(vi) the date by which an administrative appeal

must be taken, a citation to the provisions of the Secretary’s regulations that will govern the owner’s

appeal, and any other information required by such

regulations to be given to parties affected by adverse

decisions of the Secretary;

‘‘(vii) in cases where the Secretary determines that

any person’s undivided trust or restricted interest in

the parcel exceeds $1,500 pursuant to paragraph

(2)(D)(iii), that the Secretary has authority to consent

to the partition on behalf of undetermined heirs of

trust or restricted interests in the parcel and owners

of such interests whose whereabouts are unknown;

and

‘‘(viii) any other information the Secretary deems

to be appropriate.

‘‘(I) SALE TO ELIGIBLE PURCHASER.—

‘‘(i) IN GENERAL.—Subject to clauses (ii) and (iii)

and the consent requirements of paragraph (2)(D), the

Secretary shall, after providing notice to owners under

subparagraph (H), including the time and place of sale

or for receiving sealed bids, at public auction or by

sealed bid (whichever of such methods of sale the Secretary determines to be more appropriate under the

circumstances) sell the parcel of land by competitive

bid for not less than the final appraised fair market

value to the highest bidder from among the following

eligible bidders:

‘‘(I) The Indian tribe, if any, with jurisdiction

over the trust or restricted interests in the parcel

being sold.

‘‘(II) Any person who is a member, or is eligible

to be a member, of the Indian tribe described

in subclause (I).

‘‘(III) Any person who is a member, or is

eligible to be a member, of an Indian tribe but

not of the tribe described in subclause (I), but

only if such person already owns an undivided

interest in the parcel at the time of sale.

‘‘(IV) Any lineal descendent of the original

allottee of the parcel who is a member or is eligible

to be a member of an Indian tribe or, with respect

to a parcel located in the State of California that

is not within an Indian tribe’s reservation or not

otherwise subject to the jurisdiction of an Indian

tribe, who is a member, or eligible to be a member,

of an Indian tribe or owns a trust or restricted

interest in the parcel.

‘‘(ii) RIGHT TO MATCH HIGHEST BID.—If the highest

bidder is a person who is only eligible to bid under

clause (i)(III), the Indian tribe that has jurisdiction

over the parcel, if any, shall have the right to match

the highest bid and acquire the parcel, but only if—

‘‘(I) prior to the date of the sale, the governing

body of such tribe has adopted a tribal law or

resolution reserving its right to match the bids

of such nonmember bidders in partition sales

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1793

under this subsection and delivered a copy of such

law or resolution to the Secretary; and

‘‘(II) the parcel is not acquired under clause

(iii).

‘‘(iii) RIGHT TO PURCHASE.—Any person who is a

member, or eligible to be a member, of the Indian

tribe with jurisdiction over the trust or restricted

interests in the parcel being sold and is, as of the

time of sale under this subparagraph, the owner of

the largest undivided interest in the parcel shall have

a right to purchase the parcel by tendering to the

Secretary an amount equal to the highest sufficient

bid submitted at the sale, less that amount of the

bid attributable to such owner’s share, but only if—

‘‘(I) the owner submitted a sufficient bid at

the sale;

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

the parcel immediately prior to the sale was—

‘‘(aa) greater than the undivided interest

held by any other co-owners, except where

there are 2 or more co-owners whose interests

are of equal size but larger than the interests

of all other co-owners and such owners of the

largest interests have agreed in writing that

1 of them may exercise the right of purchase

under this clause; and

‘‘(bb) equal to or greater than 20 percent

of the entire undivided ownership of the

parcel;

‘‘(III) within 3 days following the date of the

auction or for receiving sealed bids, and in accordance with the regulations adopted to implement

this section, the owner delivers to the Secretary

a written notice of intent to exercise the owner’s

rights under this clause; and

‘‘(IV) such owner tenders the amount of the

purchase price required under this clause—

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

of the auction or time for receiving sealed

bids; and

‘‘(bb) in accordance with any requirements

of the regulations promulgated to implement

this section.

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

of land under this subparagraph shall acquire title

to the parcel in trust or restricted status, free and

clear of any and all claims of title or ownership of

all persons or entities (not including the United States)

owning or claiming to own an interest in such parcel

prior to the time of sale.

‘‘(J) PROCEEDS OF SALE.—

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

shall distribute the proceeds of sale of a parcel of

land under the provisions of this section to the owners

of interests in such parcel in proportion to their respective ownership interests.

Deadline.

Deadline.

Notice.

118 STAT. 1794 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘(ii) Proceeds attributable to the sale of trust or

restricted interests shall be maintained in accounts

as trust personalty.

‘‘(iii) Proceeds attributable to the sale of interests

of owners whose whereabouts are unknown, of undetermined heirs, and of other persons whose ownership

interests have not been recorded shall be held by the

Secretary until such owners, heirs, or other persons

have been determined, at which time such proceeds

shall be distributed in accordance with clauses (i) and

(ii).

‘‘(K) LACK OF BIDS OR CONSENT.—

‘‘(i) LACK OF BIDS.—If no bidder described in

subparagraph (I) presents a bid that equals or exceeds

the final appraised value, the Secretary may either—

‘‘(I) purchase the parcel of land for its

appraised fair market value on behalf of the Indian

tribe with jurisdiction over the land, subject to

the lien and procedures provided under section

214(b) (25 U.S.C. 2213(b)); or

‘‘(II) terminate the partition process.

‘‘(ii) LACK OF CONSENT.—If an applicant fails to

obtain any applicable consent required under the provisions of subparagraph (D) by the date established by

the Secretary prior to the proposed sale, the Secretary

may either extend the time for obtaining any such

consent or deny the request for partition.

‘‘(3) ENFORCEMENT.—

‘‘(A) IN GENERAL.—If a partition is approved under

this subsection and an owner of an interest in the parcel

of land refuses to surrender possession in accordance with

the partition decision, or refuses to execute any conveyance

necessary to implement the partition, then any affected

owner or the United States may—

‘‘(i) commence a civil action in the United States

district court for the district in which the parcel of

land is located; and

‘‘(ii) request that the court issue an order for ejectment or any other appropriate remedy necessary for

the partition of the land by sale.

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

brought under subparagraph (A)—

‘‘(i) the United States—

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

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

‘‘(ii) the civil action shall not be dismissed, and

no relief requested shall be denied, on the ground

that the civil action is against the United States or

that the United States is a necessary and indispensable

party.

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

grants and low interest loans to successful bidders at sales

authorized by this subsection, provided that—

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

sale shall not exceed 20 percent of the appraised value

of the parcel of land sold; and

Notice.

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1795

‘‘(B) the grant or loan funds provided shall only be

applied toward the purchase price of the parcel of land

sold.

‘‘(5) REGULATIONS.—The Secretary is authorized to adopt

such regulations as may be necessary to implement the provisions of this subsection. Such regulations shall include provisions for giving notice of sales to prospective purchasers eligible

to submit bids at sales conducted under paragraph (2)(I).’’.

SEC. 5. OWNER-MANAGED INTERESTS.

The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)

is amended by adding at the end the following:

‘‘SEC. 221. OWNER-MANAGED INTERESTS.

‘‘(a) PURPOSE.—The purpose of this section is to provide a

means for the co-owners of trust or restricted interests in a parcel

of land to enter into surface leases of such parcel for certain purposes without approval of the Secretary.

‘‘(b) MINERAL INTERESTS.—Nothing in this section shall be construed to limit or otherwise affect the application of any Federal

law requiring the Secretary to approve mineral leases or other

agreements for the development of the mineral interest in trust

or restricted land.

‘‘(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

25 USC 2220.

118 STAT. 1796 PUBLIC LAW 108–374—OCT. 27, 2004

interests, or against the land, the interest or the United States,

unless such lease—

‘‘(1) is consistent with, and entered into in accordance

with, the requirements of this section; or

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

with other Federal laws applicable to the leasing of trust or

restricted land.

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

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

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

long as such interest is in owner-managed status under the provisions of this section.

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

tribe with jurisdiction over an interest in trust or restricted

land that becomes owner-managed pursuant to this section

shall continue to have jurisdiction over the interest to the

same extent and in all respects that such tribe had prior

to the interest acquiring owner-managed status.

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

or otherwise using such interest in land shall be considered

to consent to the jurisdiction of the Indian tribe referred to

in paragraph (1), including such tribe’s laws and regulations,

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

the use, of the interest.

‘‘(h) CONTINUATION OF OWNER-MANAGED STATUS; REVOCATION.—

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

(2), after the applications of the owners of all of the trust

or restricted interests in a parcel of land have been approved

by the Secretary pursuant to subsection (d), each such interest

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

trust or restricted status to another person or the subsequent

descent of the interest in trust or restricted status by testate

or intestate succession to 1 or more heirs.

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

may be revoked upon written request of the owners (including

the parents or legal guardians of minors or incompetent owners)

of all trust or restricted interests in the parcel, submitted

to the Secretary in accordance with regulations adopted under

subsection (l). The revocation shall become effective as of the

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

to the Secretary.

‘‘(3) EFFECT OF REVOCATION.—Revocation of owner-managed status under paragraph (2) shall not affect the validity

of any lease made in accordance with the provisions of this

section prior to the effective date of the revocation, provided

that, after such revocation becomes effective, the Secretary

shall be responsible for the collection of, and accounting for,

all future lease revenues accruing to the trust or restricted

interests in the parcel from and after such effective date.

‘‘(i) DEFINED TERMS.—

‘‘(1) For purposes of subsection (d)(1), the term ‘qualified

applicant’ means—

‘‘(A) a person over the age of 18 who owns a trust

or restricted interest in a parcel of land; and

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1797

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

a parcel of land.

‘‘(2) For purposes of this section, the term ‘owner-managed

status’ means, with respect to a trust or restricted interest,

that—

‘‘(A) the interest is a trust or restricted interest in

a parcel of land for which applications covering all trust

or restricted interests in such parcel have been submitted

to and approved by the Secretary pursuant to subsection

(d);

‘‘(B) the interest may be leased without approval of

the Secretary pursuant to, and in a manner that is consistent with, the requirements of this section; and

‘‘(C) no revocation has occurred under subsection (h)(2).

‘‘(j) SECRETARIAL APPROVAL OF OTHER TRANSACTIONS.—Except

with respect to the specific lease transaction described in paragraph

(1) of subsection (c), interests that acquire owner-managed status

under the provisions of this section shall continue to be subject

to all Federal laws requiring the Secretary to approve transactions

involving trust or restricted land (including leases with terms of

a duration in excess of 10 years) that would otherwise apply to

such interests if the interests had not acquired owner-managed

status under this section.

‘‘(k) EFFECT OF SECTION.—Subject to subsections (c), (f), and

(h), nothing in this section diminishes or otherwise affects any

authority or responsibility of the Secretary with respect to an

interest in trust or restricted land.’’.

SEC. 6. ADDITIONAL AMENDMENTS.

(a) IN GENERAL.—The Indian Land Consolidation Act (25 U.S.C.

2201 et seq.) is amended—

(1) in the second sentence of section 205(a) (25 U.S.C.

2204(a)), by striking ‘‘over 50 per centum of the undivided

interests’’ and inserting ‘‘undivided interests equal to at least

50 percent of the undivided interest’’;

(2) in section 207 (25 U.S.C. 2206), by adding a subsection

at the end as follows:

‘‘(p) PURCHASE OPTION AT PROBATE.—

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

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

probate in accordance with the provisions of this subsection.

‘‘(2) SALE OF INTEREST AT FAIR MARKET VALUE.—Subject

to paragraph (3), the Secretary is authorized to sell trust or

restricted interests in land subject to this subsection, including

the interest that a surviving spouse would otherwise receive

under section 207(a)(2) (A) or (D), at no less than fair market

value, as determined in accordance with the provisions of this

Act, to any of the following eligible purchasers:

‘‘(A) Any other eligible heir taking an interest in the

same parcel of land by intestate succession or the

decedent’s other devisees of interests in the same parcel

who are eligible to receive a devise under section

207(b)(1)(A).

‘‘(B) All persons who own undivided trust or restricted

interests in the same parcel of land involved in the probate

proceeding.

118 STAT. 1798 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘(C) The Indian tribe with jurisdiction over the interest,

or the Secretary on behalf of such Indian tribe.

‘‘(3) REQUEST TO PURCHASE; AUCTION; CONSENT REQUIREMENTS.—No sale of an interest in probate shall occur under

this subsection unless—

‘‘(A) an eligible purchaser described in paragraph (2)

submits a written request to purchase prior to the distribution of the interest to heirs or devisees of the decedent

and in accordance with any regulations of the Secretary;

and

‘‘(B) except as provided in paragraph (5), the heirs

or devisees of such interest, and the decedent’s surviving

spouse, if any, receiving a life estate under section 207(a)(2)

(A) or (D) consent to the sale.

If the Secretary receives more than 1 request to purchase

the same interest, the Secretary shall sell the interest by public

auction or sealed bid (as determined by the Secretary) at not

less than the appraised fair market value to the eligible purchaser submitting the highest bid.

‘‘(4) APPRAISAL AND NOTICE.—Prior to the sale of an interest

pursuant to this subsection, the Secretary shall—

‘‘(A) appraise the interest at its fair market value

in accordance with this Act;

‘‘(B) provide eligible heirs, other devisees, and the

Indian tribe with jurisdiction over the interest with written

notice, sent by first class mail, that the interest is available

for purchase in accordance with this subsection; and

‘‘(C) if the Secretary receives more than 1 request

to purchase the interest by a person described in subparagraph (B), provide notice of the manner (auction or sealed

bid), time and place of the sale, a description, and the

appraised fair market value, of the interest to be sold—

‘‘(i) to the heirs or other devisees and the Indian

tribe with jurisdiction over the interest, by first class

mail; and

‘‘(ii) to all other eligible purchasers, by posting

written notice in at least 5 conspicuous places in the

vicinity of the place of hearing.

‘‘(5) SMALL UNDIVIDED INTERESTS IN INDIAN LANDS.—

‘‘(A) IN GENERAL.—Subject to subparagraph (B), the

consent of a person who is an heir otherwise required

under paragraph (3)(B) shall not be required for the auction

and sale of an interest at probate under this subsection

if—

‘‘(i) the interest is passing by intestate succession;

and

‘‘(ii) prior to the auction the Secretary determines

in the probate proceeding that the interest passing

to such heir represents less than 5 percent of the

entire undivided ownership of the parcel of land as

evidenced by the Secretary’s records as of the time

the determination is made.

‘‘(B) EXCEPTION.—Notwithstanding subparagraph (A),

the consent of such heir shall be required for the sale

at probate of the heir’s interest if, at the time of the

decedent’s death, the heir was residing on the parcel of

land of which the interest to be sold was a part.

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1799

‘‘(6) DISTRIBUTION OF PROCEEDS.—Proceeds from the sale

of interests under this subsection shall be distributed to the

heirs, devisees, or spouse whose interest was sold in accordance

with the values of their respective interests. The proceeds

attributable to an heir or devisee shall be held in an account

as trust personalty if the interest sold would have otherwise

passed to the heir or devisee in trust or restricted status.’’;

(3) in section 206 (25 U.S.C. 2205)—

(A) in subsection (a), by striking paragraph (3) and

inserting the following:

‘‘(3) TRIBAL PROBATE CODES.—Except as provided in any

applicable Federal law, the Secretary shall not approve a tribal

probate code, or an amendment to such a code, that prohibits

the devise of an interest in trust or restricted land to—

‘‘(A) an Indian lineal descendant of the original allottee;

or

‘‘(B) an Indian who is not a member of the Indian

tribe with jurisdiction over such an interest;

unless the code provides for—

‘‘(i) the renouncing of interests to eligible devisees

in accordance with the code;

‘‘(ii) the opportunity for a devisee who is the spouse

or lineal descendant of a testator to reserve a life

estate without regard to waste; and

‘‘(iii) payment of fair market value in the manner

prescribed under subsection (c)(2).’’; and

(B) in subsection (c)—

(i) in paragraph (1)—

(I) by striking the paragraph heading and

inserting the following:

‘‘(1) AUTHORITY.—

‘‘(A) IN GENERAL.—’’;

(II) in the first sentence of subparagraph (A)

(as redesignated by clause (i)), by striking ‘‘section

207(a)(6)(A) of this title’’ and inserting ‘‘section

207(b)(2)(A)(ii) of this title’’; and

(III) by striking the last sentence and inserting

the following:

‘‘(B) TRANSFER.—The Secretary shall transfer payments received under subparagraph (A) to any person or

persons who would have received an interest in land if

the interest had not been acquired by the Indian tribe

in accordance with this paragraph.’’; and

(ii) in paragraph (2)—

(I) in subparagraph (A)—

(aa) by striking the subparagraph heading

and all that follows through ‘‘Paragraph (1)

shall not apply’’ and inserting the following:

‘‘(A) INAPPLICABILITY TO CERTAIN INTERESTS.—

‘‘(i) IN GENERAL.—Paragraph (1) shall not apply’’;

(bb) in clause (i) (as redesignated by item

(aa)), by striking ‘‘if, while’’ and inserting the

following: ‘‘if—

‘‘(I) while’’;

(cc) by striking the period at the end and

inserting ‘‘; or’’; and

(dd) by adding at the end the following:

118 STAT. 1800 PUBLIC LAW 108–374—OCT. 27, 2004

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

that is devised to a member of the family of the

decedent; and

‘‘(bb) the devisee agrees that the Indian tribe

with jurisdiction over the land will have the opportunity to acquire the interest for fair market value

if the interest is offered for sale to a person or

entity that is not a member of the family of the

owner of the land.

‘‘(ii) RECORDING OF INTEREST.—On request by the

Indian tribe described in clause (i)(II)(bb), a restriction

relating to the acquisition by the Indian tribe of an

interest in a family farm involved shall be recorded

as part of the deed relating to the interest involved.

‘‘(iii) MORTGAGE AND FORECLOSURE.—Nothing in

clause (i)(II) limits—

‘‘(I) the ability of an owner of land to which

that clause applies to mortgage the land; or

‘‘(II) the right of the entity holding such a

mortgage to foreclose or otherwise enforce such

a mortgage agreement in accordance with

applicable law.

‘‘(iv) DEFINITION OF ‘MEMBER OF THE FAMILY’.—

In this paragraph, the term ‘member of the family’,

with respect to a decedent or landowner, means—

‘‘(I) a lineal descendant of a decedent or landowner;

‘‘(II) a lineal descendant of the grandparent

of a decedent or landowner;

‘‘(III) the spouse of a descendant or landowner

described in subclause (I) or (II); and

‘‘(IV) the spouse of a decedent or landowner.’’;

and

(II) in subparagraph (B), by striking ‘‘subparagraph (A)’’ and all that follows through

‘‘207(a)(6)(B) of this title’’ and inserting ‘‘paragraph

(1)’’;

(4) in section 207 (25 U.S.C. 2206), by striking subsection

(g);

(5) in section 213 (25 U.S.C. 2212)—

(A) by striking the section heading and inserting the

following:

‘‘SEC. 2212. FRACTIONAL INTEREST ACQUISITION PROGRAM.’’;

(B) in subsection (a), by—

(i) adding in paragraph (1) ‘‘or from an heir during

probate in accordance with section 207(p) (25 U.S.C.

2206(p))’’ after ‘‘owner,’’; and

(ii) striking ‘‘(2) AUTHORITY OF SECRETARY.—’’ and

all that follows through ‘‘the Secretary shall submit’’

and inserting the following:

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

submit’’; and

(iii) by striking ‘‘whether the program to acquire

fractional interests should be extended or altered to

make resources’’ and inserting ‘‘how the fractional

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1801

interest acquisition program should be enhanced to

increase the resources made’’;

(C) in subsection (b), by striking paragraph (4) and

inserting the following:

‘‘(4) shall minimize the administrative costs associated with

the land acquisition program through the use of policies and

procedures designed to accommodate the voluntary sale of

interests under this section, notwithstanding the existence of

any otherwise applicable policy, procedure, or regulation,

through the elimination of duplicate—

‘‘(A) conveyance documents;

‘‘(B) administrative proceedings; and

‘‘(C) transactions.’’;

(D) in subsection (c)—

(i) in paragraph (1)—

(I) in subparagraph (A), by striking ‘‘at least

5 percent of the’’ and inserting in its place ‘‘an’’;

(II) in subparagraph (A), by inserting ‘‘in such

parcel’’ following ‘‘the Secretary shall convey an

interest’’;

(III) in subparagraph (A), by striking ‘‘landowner upon payment’’ and all that follows and

inserting the following: ‘‘landowner—

‘‘(i) on payment by the Indian landowner of the

amount paid for the interest by the Secretary; or

‘‘(ii) if—

‘‘(I) the Indian referred to in this subparagraph

provides assurances that the purchase price will

be paid by pledging revenue from any source,

including trust resources; and

‘‘(II) the Secretary determines that the purchase price will be paid in a timely and efficient

manner.’’; and

(IV) in subparagraph (B), by inserting before

the period at the end the following: ‘‘unless the

interest is subject to a foreclosure of a mortgage

in accordance with the Act of March 29, 1956

(25 U.S.C. 483a)’’; and

(ii) in paragraph (3), by striking ‘‘10 percent or

more of the undivided interests’’ and inserting ‘‘an

undivided interest’’; and

(E) by adding at the end of the section:

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

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

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

each of fiscal years 2007 through 2010.’’;

(6) in section 214 (25 U.S.C. 2213), by striking subsection

(b) and inserting the following:

‘‘(b) APPLICATION OF REVENUE FROM ACQUIRED INTERESTS TO

LAND CONSOLIDATION PROGRAM.—

‘‘(1) IN GENERAL.—The Secretary shall have a lien on any

revenue accruing to an interest described in subsection (a)

until the Secretary provides for the removal of the lien under

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

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

from an interest in land under paragraph (1)—

118 STAT. 1802 PUBLIC LAW 108–374—OCT. 27, 2004

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

or other document evidencing a transaction affecting

the interest shall contain a clause providing that all

revenue derived from the interest shall be paid to

the Secretary; and

‘‘(ii) any revenue derived from any interest

acquired by the Secretary in accordance with section

213 shall be deposited in the fund created under section

216.

‘‘(B) APPROVAL OF TRANSACTIONS.—Notwithstanding

section 16 of the Act of June 18, 1934 (commonly known

as the ‘Indian Reorganization Act’) (25 U.S.C. 476), or

any other provision of law, until the Secretary removes

a lien from an interest in land under paragraph (1), the

Secretary may approve a transaction covered under this

section on behalf of an Indian tribe.

‘‘(3) REMOVAL OF LIENS AFTER FINDINGS.—The Secretary

may remove a lien referred to in paragraph (1) if the Secretary

makes a finding that—

‘‘(A) the costs of administering the interest from which

revenue accrues under the lien will equal or exceed the

projected revenues for the parcel of land involved;

‘‘(B) in the discretion of the Secretary, it will take

an unreasonable period of time for the parcel of land to

generate revenue that equals the purchase price paid for

the interest; or

‘‘(C) a subsequent decrease in the value of land or

commodities associated with the parcel of land make it

likely that the interest will be unable to generate revenue

that equals the purchase price paid for the interest in

a reasonable time.

‘‘(4) REMOVAL OF LIENS UPON PAYMENT INTO THE ACQUISITION FUND.—The Secretary shall remove a lien referred to

in paragraph (1) upon payment of an amount equal to the

purchase price of that interest in land into the Acquisition

Fund created under section 2215 of this title, except where

the tribe with jurisdiction over such interest in land authorizes

the Secretary to continue the lien in order to generate additional acquisition funds.

‘‘(5) OTHER REMOVAL OF LIENS.—The Secretary may, in

consultation with tribal governments and other entities

described in section 213(b)(3), periodically remove liens referred

to in paragraph (1) from interests in land acquired by the

Secretary.’’;

(7) in section 215 (25 U.S.C. 2214), in the last sentence,

by striking ‘‘section 2212 of this title’’ and inserting ‘‘this Act’’;

(8) in section 216 (25 U.S.C. 2215)—

(A) in subsection (a), by striking paragraph (2) and

inserting the following:

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

or sale of resources from interests acquired under section 213

or paid by Indian landowners under section 213.’’; and

(B) in subsection (b)—

(i) in paragraph (1)—

(I) in the matter preceding subparagraph (A),

by striking ‘‘Subject to paragraph (2), all’’ and

inserting ‘‘All’’;

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1803

(II) in subparagraph (A), by striking ‘‘and’’

at the end;

(III) in subparagraph (B), by striking the

period at the end and inserting ‘‘; and’’; and

(IV) by adding at the end the following:

‘‘(C) be used to acquire undivided interests on the

reservation from which the income was derived.’’; and

(ii) by striking paragraph (2) and inserting the

following:

‘‘(2) USE OF FUNDS.—The Secretary may use the revenue

deposited in the Acquisition Fund under paragraph (1) to

acquire some or all of the undivided interests in any parcels

of land in accordance with section 205.’’;

(9) in section 217 (25 U.S.C. 2216)—

(A) in subsection (b)(1), by striking subparagraph (B)

and inserting a new subparagraph (B) as follows:

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

an estimate of value under subparagraph (A) may be

waived in writing by an owner of a trust or restricted

interest in land either selling, exchanging, or conveying

by gift deed for no or nominal consideration such interest—

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

brother, sister, lineal ancestor, lineal descendant, or

collateral heir; or

‘‘(ii) to an Indian co-owner or to the tribe with

jurisdiction over the subject parcel of land, where the

grantor owns a fractional interest that represents 5

percent or less of the parcel.’’;

(B) in subsection (e), by striking the matter preceding

paragraph (1), and inserting ‘‘Notwithstanding any other

provision of law, the names and mailing addresses of the

owners of any interest in trust or restricted lands, and

information on the location of the parcel and the percentage

of undivided interest owned by each individual shall, upon

written request, be made available to’’;

(C) in subsection (e)(1), by striking ‘‘Indian’’;

(D) in subsection (e)(3), by striking ‘‘prospective

applicants for the leasing, use, or consolidation of’’ and

inserting ‘‘any person that is leasing, using, or consolidating, or is applying to lease, use, or consolidate,’’; and

(E) by striking subsection (f) and inserting the following:

‘‘(f) PURCHASE OF LAND BY INDIAN TRIBE.—

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

before the Secretary approves an application to terminate the

trust status or remove the restrictions on alienation from a

parcel of, or interest in, trust or restricted land, the Indian

tribe with jurisdiction over the parcel shall have the

opportunity—

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

or

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

offered, to acquire the interest in the parcel by paying

the fair market value of the interest.

‘‘(2) EXCEPTION FOR FAMILY FARMS.— ‘‘(A) IN GENERAL.—Paragraph (1) shall not apply to

a parcel of, or interest in, trust or restricted land that

118 STAT. 1804 PUBLIC LAW 108–374—OCT. 27, 2004

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

of the family of a landowner (as defined in section

206(c)(2)(A)(iv)) if the conveyance requires that in the event

that the parcel or interest is offered for sale to an entity

or person that is not a member of the family of the landowner, the Indian tribe with jurisdiction over the land

shall be afforded the opportunity to purchase the interest

pursuant to paragraph (1).

‘‘(B) APPLICABILITY OF OTHER PROVISION.—Section

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

mortgaging of any trust or restricted land referred to in

subparagraph (A).’’;

(10) in section 219(b)(1)(A) (25 U.S.C. 2218(b)(1)(A)), by

striking ‘‘100’’ and inserting ‘‘90’’; and

(11) in section 219, by adding at the end of the section:

‘‘(g) OTHER LAWS.—Nothing in this Act shall be construed to

supersede, repeal, or modify any general or specific statute authorizing the grant or approval of any type of land use transaction

involving fractional interests in trust or restricted land.’’.

(b) DEFINITIONS.—Section 202 of the Indian Land Consolidation

Act (25 U.S.C. 2201) is amended—

(1) by striking paragraph (2) and inserting the following:

‘‘(2) ‘Indian’ means—

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

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

is an owner (as of the date of enactment of the American

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

interest in land;

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

the Indian Reorganization Act (25 U.S.C. 479) and the

regulations promulgated thereunder; and

‘‘(C) with respect to the inheritance and ownership

of trust or restricted land in the State of California pursuant to section 207, any person described in subparagraph

(A) or (B) or any person who owns a trust or restricted

interest in a parcel of such land in that State.’’;

(2) by striking paragraph (4) and inserting the following:

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

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

individual, or which is held by an Indian tribe or individual

subject to a restriction by the United States against alienation;

and ‘trust or restricted interest in land’ or ‘trust or restricted

interest in a parcel of land’ means an interest in land, title

to which is held in trust by the United States for an Indian

tribe or individual, or which is held by an Indian tribe or

individual subject to a restriction by the United States against

alienation.’’; and

(3) by adding at the end the following:

‘‘(6) ‘parcel of highly fractionated Indian land’ means a

parcel of land that the Secretary, pursuant to authority under

a provision of this Act, determines to have, as evidenced by

the Secretary’s records at the time of the determination—

‘‘(A) 50 or more but less than 100 co-owners of undivided trust or restricted interests, and no 1 of such coowners holds a total undivided trust or restricted interest

in the parcel that is greater than 10 percent of the entire

undivided ownership of the parcel; or

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1805

‘‘(B) 100 or more co-owners of undivided trust or

restricted interests;

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

its meaning for purposes of this Act improvements permanently

affixed to real property;

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

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

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

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

who are—

‘‘(A) Indian; or

‘‘(B) lineal descendents within 2 degrees of consanguinity of an Indian; or

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

of land for purposes of inheriting by descent, renunciation,

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

2206), another trust or restricted interest in such parcel

from the decedent; and

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

life estate interest in land, that the holder of such estate

is entitled to the receipt of all income, including bonuses and

royalties, from such land to the exclusion of the

remaindermen.’’.

(c) ISSUANCE OF PATENTS.—Section 5 of the Act of February

8, 1887 (25 U.S.C. 348), is amended by striking the second proviso

and inserting the following: ‘‘Provided, That the rules of intestate

succession under the Indian Land Consolidation Act (25 U.S.C.

2201 et seq.) (including a tribal probate code approved under that

Act or regulations promulgated under that Act) shall apply to

that land for which patents have been executed and delivered:’’.

(d) TRANSFERS OF RESTRICTED INDIAN LAND.—Section 4 of the

Act of June 18, 1934 (25 U.S.C. 464), is amended in the first

proviso by—

(1) striking ‘‘, in accordance with’’ and all that follows

through ‘‘or in which the subject matter of the corporation

is located,’’;

(2) striking ‘‘, except as provided by the Indian Land

Consolidation Act’’ and all that follows through the colon; and

(3) inserting ‘‘in accordance with the Indian Land Consolidation Act (25 U.S.C. 2201 et seq.) (including a tribal probate

code approved under that Act or regulations promulgated under

that Act):’’.

(e) ESTATE PLANNING.—

(1) CONDUCT OF ACTIVITIES.—Section 207(f)(1) of the Indian

Land Consolidation Act (25 U.S.C. 2206) is amended by striking

paragraph (1) and inserting the following:

‘‘(1) IN GENERAL.—

‘‘(A) The activities conducted under this subsection

shall be conducted in accordance with any applicable—

‘‘(i) tribal probate code; or

‘‘(ii) tribal land consolidation plan.

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

amounts are appropriated for such purpose.’’.

(2) REQUIREMENTS.—Section 207(f)(2) of the Indian Land

Consolidation Act (25 U.S.C. 2206(f)(2)) is amended by striking

Applicability.

118 STAT. 1806 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘and’’ at the end of subparagraph (A), redesignating subparagraph (B) as subparagraph (D), and adding the following:

‘‘(B) dramatically increase the use of wills and other

methods of devise among Indian landowners;

‘‘(C) substantially reduce the quantity and complexity

of Indian estates that pass intestate through the probate

process, while protecting the rights and interests of Indian

landowners; and’’.

(3) PROBATE CODE DEVELOPMENT AND LEGAL ASSISTANCE

GRANTS.—Section 207(f)(3) of the Indian Land Consolidation

Act (25 U.S.C. 2206(f)(3)) is amended by striking paragraph

(3) and inserting the following:

‘‘(3) PROBATE CODE DEVELOPMENT AND LEGAL ASSISTANCE

GRANTS.—In carrying out this section, the Secretary may award

grants to—

‘‘(A) Indian tribes, for purposes of tribal probate code

development and estate planning services to tribal members;

‘‘(B) organizations that provide legal assistance services

for Indian tribes, Indian organizations, and individual

owners of interests in trust or restricted lands that are

qualified as nonprofit organizations under section 501(c)(3)

of the Internal Revenue Code of 1986 and provide such

services pursuant to Federal poverty guidelines, for purposes of providing civil legal assistance to such Indian

tribes, individual owners, and Indian organizations for the

development of tribal probate codes, for estate planning

services or for other purposes consistent with the services

they provide to Indians and Indian tribes; and

‘‘(C) in specific areas and reservations where qualified

nonprofit organizations referred to in subparagraph (B)

do not provide such legal assistance to Indian tribes, Indian

organizations, or individual owners of trust or restricted

land, to other providers of such legal assistance;

that submit an application to the Secretary, in such form and

manner as the Secretary may prescribe.

‘‘(4) AUTHORIZATION FOR APPROPRIATIONS.—There is authorized to be appropriated such sums as may be necessary to

carry out the provisions of paragraph (3).’’.

(4) NOTIFICATION TO LANDOWNERS.—Section 207 of the

Indian Land Consolidation Act (25 U.S.C. 2206) is amended

by adding at the end the following:

‘‘(l) NOTIFICATION TO LANDOWNERS.—After receiving written

request by any owner of a trust or restricted interest in land,

the Secretary shall provide to such landowner the following information with respect to each tract of trust or restricted land in which

the landowner has an interest:

‘‘(1) The location of the tract of land involved.

‘‘(2) The identity of each other co-owner of interests in

the parcel of land.

‘‘(3) The percentage of ownership of each owner of an

interest in the tract.

‘‘(m) PILOT PROJECT FOR THE MANAGEMENT OF TRUST ASSETS

OF INDIAN FAMILIES AND RELATIVES.—

‘‘(1) DEVELOPMENT PILOT PROJECT.—The Secretary shall

consult with tribes, individual landowner organizations, Indian

advocacy organizations, and other interested parties to—

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1807

‘‘(A) develop a pilot project for the creation of legal

entities such as private or family trusts, partnerships corporations, or other organizations to improve, facilitate, and

assist in the efficient management of interests in trust

or restricted lands or funds owned by Indian family members and relatives; and

‘‘(B) develop proposed rules, regulations, and guidelines

to implement the pilot project, including—

‘‘(i) the criteria for establishing such legal entities;

‘‘(ii) reporting and other requirements that the

Secretary determines to be appropriate for administering such entities; and

‘‘(iii) provisions for suspending or revoking the

authority of an entity to engage in activities relating

to the management of trust or restricted assets under

the pilot project in order to protect the interests of

the beneficial owners of such assets.

‘‘(2) PRIMARY PURPOSES; LIMITATION; APPROVAL OF TRANSACTIONS; PAYMENTS BY SECRETARY.—

‘‘(A) PURPOSES.—The primary purpose of any entity

organized under the pilot project shall be to improve, facilitate, and assist in the management of interests in trust

or restricted land, held by 1 or more persons, in furtherance

of the purposes of this Act.

‘‘(B) LIMITATION.—The organization or activities of any

entity under the pilot project shall not be construed to

impair, impede, replace, abrogate, or modify in any respect

the trust duties or responsibilities of the Secretary, nor

shall anything in this subsection or in any rules, regulations, or guidelines developed under this subsection enable

any private or family trustee of trust or restricted interests

in land to exercise any powers over such interests greater

than that held by the Secretary with respect to such

interests.

‘‘(C) SECRETARIAL APPROVAL OF TRANSACTIONS.—Any

transaction involving the lease, use, mortgage or other

disposition of trust or restricted land or other trust assets

administered by or through an entity under the pilot project

shall be subject to approval by the Secretary in accordance

with applicable Federal law.

‘‘(D) PAYMENTS.—The Secretary shall have the

authority to make payments of income and revenues

derived from trust or restricted land or other trust assets

administered by or through an entity participating in the

pilot project directly to the entity, in accordance with

requirements of the regulations adopted pursuant to this

subsection.

‘‘(3) LIMITATIONS ON PILOT PROJECT.—

‘‘(A) NUMBER OF ORGANIZATIONS.—The number of entities established under the pilot project authorized by this

subsection shall not exceed 30.

‘‘(B) REGULATIONS REQUIRED.—No entity shall commence activities under the pilot project authorized by this

subsection until the Secretary has adopted final rules and

regulations under paragraph (1)(B).

118 STAT. 1808 PUBLIC LAW 108–374—OCT. 27, 2004

‘‘(4) REPORT TO CONGRESS.—Prior to the expiration of the

pilot project provided for under this subsection, the Secretary

shall submit a report to Congress stating—

‘‘(A) a description of the Secretary’s consultation with

Indian tribes, individual landowner associations, Indian

advocacy organizations, and other parties consulted with

regarding the development of rules and regulations for

the creation and management of interests in trust and

restricted lands under the pilot project;

‘‘(B) the feasibility of accurately monitoring the

performance of legal entities such as those involved in

the pilot project, and the effectiveness of such entities

as mechanisms to manage and protect trust assets;

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

in the pilot project may have with respect to the accomplishment of the goals of the Indian Land Consolidation

Act (25 U.S.C. 2201 et seq.); and

‘‘(D) any recommendations that the Secretary may have

regarding whether to adopt a permanent program as a

management and consolidation measure for interests in

trust or restricted lands.

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

the heirs to trust or restricted property, or making a decision

determining such heirs, the Secretary shall seek to provide actual

written notice of the proceedings to all heirs. Such efforts shall

include—

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

records, including telephone and address directories and

including electronic search services or directories;

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

property;

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

owner is a member, and the tribal government with jurisdiction

over the property, if any; and

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

engaging the services of an independent firm to conduct a

missing persons search.

‘‘(o) MISSING HEIRS.—

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

an heir may be presumed missing if—

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

after completion of notice efforts under subsection (m);

and

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

the Secretary finds that the heir has had no contact with

other heirs of the decedent, if any, or with the Department

relating to trust or restricted land or other trust assets

at any time during the 6-year period preceding the hearing

to determine heirs.

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

person may request an extension of time to locate such heir.

The Secretary shall grant a reasonable extension of time for

good cause.

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

of the efforts made in the heirship proceeding and a finding

has been made that this subsection has been complied with.

PUBLIC LAW 108–374—OCT. 27, 2004 118 STAT. 1809

‘‘(4) An heir determined to be missing pursuant to this

subsection shall be deemed to have predeceased the decedent

for purposes of descent and devise of trust or restricted land

and trust personalty within that decedent’s estate.’’.

SEC. 7. ANNUAL NOTICE AND FILING REQUIREMENT FOR OWNERS

OF INTERESTS IN TRUST OR RESTRICTED LANDS.

The Indian Land Consolidation Act (25 U.S.C. 2201 et seq.)

is amended by adding at the end the following:

‘‘SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHEREABOUTS OF

INTEREST OWNERS.

‘‘On at least an annual basis, the Secretary shall include along

with other regular reports to owners of trust or restricted interests

in land and individual Indian money account owners a change

of name and address form by means of which the owner may

confirm or update the owner’s name and address. The change

of name and address form shall include a section in which the

owner may confirm and update the owner’s name and address.’’.

SEC. 8. NOTICE; EFFECTIVE DATE.

(a) NOTICE.— (1) IN GENERAL.—Not later than 180 days after the date

of enactment of this Act, the Secretary shall notify Indian

tribes and owners of trust or restricted lands of the amendments made by this Act.

(2) SPECIFICATIONS.—The notice required under paragraph

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

restricted land of—

(A) the effect of this Act and the amendments made

by this Act, with emphasis on the effect of the provisions

of this Act and the amendments made by this Act, on

the testate disposition and intestate descent of their

interests in trust or restricted land;

(B) estate planning options available to the owners,

including any opportunities for receiving estate planning

assistance or advice;

(C) the use of negotiated sales, gift deeds, land

exchanges, and other transactions for consolidating the

ownership of land; and

(D) a toll-free telephone number to be used for

obtaining information regarding the provisions of this Act

and any trust assets of such owners.

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

required under paragraph (1)—

(A) by direct mail for those Indians with interests

in trust and restricted lands for which the Secretary has

an address for the interest holder;

(B) through the Federal Register;

(C) through local newspapers in areas with significant

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

(D) through any other means determined appropriate

by the Secretary.

(4) CERTIFICATION.—After providing notice under this subsection, the Secretary shall—

(A) certify that the requirements of this subsection

have been met; and

Deadline.

25 USC 2201

note.

25 USC 2221.

118 STAT. 1810 PUBLIC LAW 108–374—OCT. 27, 2004

LEGISLATIVE HISTORY—S. 1721:

HOUSE REPORTS: No. 108–656 (Comm. on Resources).

SENATE REPORTS: No. 108–264 (Comm. on Indian Affairs).

CONGRESSIONAL RECORD, Vol. 150 (2004):

June 2, considered and passed Senate.

Oct. 6, considered and passed House.

Æ

(B) publish notice of that certification in the Federal

Register.

(b) EFFECTIVE DATE.—Section 207 of the Indian Land Consolidation Act (25 U.S.C. 2206), except subsections (e) and (f) of that

section, shall not apply to the estate of an individual who dies

before the date that is 1 year after the date on which the Secretary

makes the certification required under subsection (a)(4).

SEC. 9. SEVERABILITY.

If any provision of this Act or of any amendment made by

this Act, or the application of any such provision to any person

or circumstance, is held to be invalid for any reason, the remainder

of this Act and of amendments made by this Act, and the application

of the provisions and of the amendments made by this Act to

any other person or circumstance shall not be affected by such

holding, except that each of subclauses (II), (III), and (IV) of section

205(d)(2)(I)(i) is deemed to be inseverable from the other 2, such

that if any 1 of those 3 subclauses is held to be invalid for any

reason, neither of the other 2 of such subclauses shall be given

effect.

SEC. 10. REGULATIONS.

The Secretary is authorized to adopt such regulations as may

be necessary to implement the provisions of this Act.

Approved October 27, 2004.

25 USC 2201

note.

25 USC 2201

note.

Federal Register,

publication.