II

107TH CONGRESS

1ST SESSION S. 1340

To amend the Indian Land Consolidation Act to provide for probate reform

with respect to trust or restricted lands.

IN THE SENATE OF THE UNITED STATES

AUGUST 2, 2001

Mr. CAMPBELL introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To amend the Indian Land Consolidation Act to provide

for probate reform with respect to trust or restricted lands.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

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

5 Act of 2001’’.

6 SEC. 2. AMENDMENTS TO THE INDIAN LAND CONSOLIDA7 TION ACT.

8 (a) IN GENERAL.—The Indian Land Consolidation

9 Act (25 U.S.C. 2201 et seq.) is amended by adding at

10 the end the following:
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1 ‘‘Subtitle B—Indian Probate

2 Reform

3 ‘‘SEC. 231. FINDINGS.

4 ‘‘Congress makes the following findings:

5 ‘‘(1) The General Allotment Act of 1887 (com6 monly known as the ‘‘Dawes Act’’), which authorized

7 the allotment of Indian reservations, did not allow

8 Indian allotment owners to provide for the testa9 mentary disposition of the land that was allotted to

10 such owners.

11 ‘‘(2) The Dawes Act provided that allotments

12 would descend according to State law of intestate

13 succession based on the location of the allotment.

14 ‘‘(3) The Federal Government’s reliance on the

15 State law of intestate succession with respect to the

16 descendency of allotments has resulted in numerous

17 problems to Indian tribes, their members, and the

18 Federal Government. These problems include—

19 ‘‘(A) the increasing fractionated ownership

20 of trust and restricted land as these lands are

21 inherited by successive generations of owners as

22 tenants in common;

23 ‘‘(B) the application of different rules of

24 intestate succession to each of a decedent’s in25 terests in trust and restricted land if such land
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1 is located within the boundaries of different

2 States which makes probate planning unneces3 sarily difficult and impedes efforts to provide

4 probate planning assistance or advice;

5 ‘‘(C) the absence of a uniform general pro6 bate code for trust and restricted land which

7 makes it difficult for Indian tribes to work co8 operatively to develop tribal probate codes; and

9 ‘‘(D) the failure of Federal law to address

10 or provide for many of the essential elements of

11 general probate law, either directly or by ref12 erence, which is unfair to the owners of trust

13 and restricted land and their heirs and devisees

14 and which makes probate planning more dif15 ficult.

16 ‘‘(4) Based on the problems identified in para17 graph (3), a uniform Federal probate code would

18 likely—

19 ‘‘(A) reduce the number of unnecessary

20 fractionated interests in trust or restricted land;

21 ‘‘(B) facilitate efforts to provide probate

22 planning assistance and advice;

23 ‘‘(C) facilitate inter-tribal efforts to

24 produce tribal probate codes pursuant to section

25 206; and
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1 ‘‘(D) provide essential elements of general

2 probate law that are not applicable on the date

3 of enactment of this subtitle to interests in

4 trust or restricted land.

5 ‘‘SEC. 232. RULES RELATING TO INTESTATE INTERESTS

6 AND PROBATE.

7 ‘‘(a) IN GENERAL.—Any interest in trust or re8 stricted land that is not disposed of by a valid will shall—

9 ‘‘(1) descend according to a tribal probate code

10 that is approved pursuant to section 206; or

11 ‘‘(2) in the case of an interest in trust or re12 stricted land to which such a code does not apply,

13 be considered an ‘intestate interest’ and descend

14 pursuant to subsection (b), this Act, and other appli15 cable Federal law.

16 ‘‘(b) INTESTATE SUCCESSION.—An interest in trust

17 or restricted land described in subsection (a)(2) (intestate

18 interest) shall descend as provided for in this subsection

19 in the following order:

20 ‘‘(1) SURVIVING INDIAN SPOUSE.—

21 ‘‘(A) SOLE HEIR.—A surviving Indian

22 spouse of the decedent shall receive all of the

23 decedent’s intestate interests if no Indian child

24 or grandchild of the decedent survives the dece25 dent.
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1 ‘‘(B) OTHER HEIRS.—A surviving Indian

2 spouse of the decedent shall receive a one-half

3 interest in each of the decedent’s intestate in4 terests if the decedent is also survived by In5 dian children or grandchildren.

6 ‘‘(C) HEIRS OF THE FIRST OR SECOND DE7 GREE OTHER THAN SURVIVING INDIAN

8 SPOUSE.—The one-half interest in each of the

9 decedent’s intestate interests that do not de10 scend to the surviving Indian spouse under sub11 paragraph (B) shall descend in the following

12 order:

13 ‘‘(i) To the Indian children of the de14 cedent in equal shares, or to the Indian

15 grandchildren of the decedent, if any, in

16 equal shares by right of representation if 1

17 or more of the Indian children of the dece18 dent do not survive the decedent.

19 ‘‘(ii) If the decedent is not survived by

20 Indian children or grandchildren, to the

21 surviving Indian parent of the decedent, or

22 to both of the surviving Indian parents of

23 the decedent as joint tenants with the right

24 of survivorship.
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1 ‘‘(iii) If the decedent is not survived

2 by any person who is eligible to inherit

3 under clause (i) or (ii), to the surviving In4 dian brothers and sisters of the decedent.

5 ‘‘(iv) If the decedent is not survived

6 by any person who is eligible to inherit

7 under clause (i), (ii), or (iii), the intestate

8 interests shall descend, or may be ac9 quired, as provided for in section

10 207(a)(3)(B), 207(a)(4), or 207(a)(5).

11 ‘‘(2) NO SURVIVING INDIAN SPOUSE.—If the

12 decedent is not survived by an Indian spouse, the in13 testate interests of the decedent shall descend to the

14 individuals described in subparagraphs (A) through

15 (D) who survive the decedent in the following order:

16 ‘‘(A) To the Indian children of the dece17 dent in equal shares, or to the Indian grand18 children of the decedent, if any, in equal shares

19 by right of representation if 1 or more of the

20 Indian children of the decedent do not survive

21 the decedent.

22 ‘‘(B) If the decedent is not survived by In23 dian children or grandchildren, to the surviving

24 Indian parent of the decedent, or to both of the
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1 surviving Indian parents of the decedent as

2 joint tenants with the right of survivorship.

3 ‘‘(C) If the decedent is not survived by any

4 person who is eligible to inherit under subpara5 graph (A) or (B), to the surviving Indian broth6 ers and sisters of the decedent.

7 ‘‘(D) If the decent is not survived by any

8 person who is eligible to inherit under subpara9 graph (A), (B), or (C), the intestate interests

10 shall descend, or may be acquired, as provided

11 for in section 207(a)(3)(B), 207(a)(4), or

12 207(a)(5).

13 ‘‘(3) SURVIVING NON-INDIAN SPOUSE.—

14 ‘‘(A) NO DESCENDANTS.—A surviving non15 Indian spouse of the decedent shall receive a

16 life estate in each of the intestate interests of

17 the decedent pursuant to section 207(b)(2) if

18 the decedent is not survived by any children or

19 grandchildren.

20 ‘‘(B) DESCENDANTS.—A surviving non-In21 dian spouse of the decedent shall receive a life

22 estate in one-half of the intestate interests of

23 the decedent pursuant to section 207(b)(2) if

24 the decedent is survived by at least one of the

25 children or grandchildren of the decedent.
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1 ‘‘(C) DESCENDANTS OTHER THAN SUR2 VIVING NON-INDIAN SPOUSE.—The one-half life

3 estate interest in each of the decedent’s intes4 tate interests that do not descend to the sur5 viving non-Indian spouse under subparagraph

6 (B) shall descend to the children of the dece7 dent in equal shares, or to the grandchildren of

8 the decedent, if any, in equal shares by right of

9 representation if 1 or more of the children of

10 the decedent do not survive the decedent.

11 ‘‘(4) NO SURVIVING SPOUSE OR INDIAN

12 HEIRS.—If the decedent is not survived by a spouse,

13 a life estate in the intestate interests of the decedent

14 shall descend in the following order:

15 ‘‘(A) To the children of the decedent in

16 equal shares, or to the grandchildren of the de17 cedent, if any, in equal shares by right of rep18 resentation if 1 or more of the children of the

19 decedent do not survive the decedent.

20 ‘‘(B) If the decedent has no surviving chil21 dren or grandchildren, to the surviving parents

22 of the decedent.

23 ‘‘(5) REMAINDER INTEREST FROM LIFE ES24 TATES.—The remainder interest from a life estate
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1 established under paragraphs (3) and (4) shall de2 scend in the following order:

3 ‘‘(A) To the Indian children of the dece4 dent in equal shares, or to the Indian grand5 children of the decedent, if any, in equal shares

6 by right of representation if 1 or more of the

7 children of the decedent do not survive the de8 cedent.

9 ‘‘(B) If there are no surviving Indian chil10 dren or grandchildren of the decedent, to the

11 surviving Indian parent of the decedent or to

12 both of the surviving Indian parents of the de13 cedent as joint tenant with the right of survi14 vorship.

15 ‘‘(C) If there is no surviving Indian child,

16 grandchild, or parent, to the surviving Indian

17 brothers or sisters of the decedent in equal

18 shares.

19 ‘‘(D) If there is no surviving Indian de20 scendant or parent, brother or sister, the intes21 tate interests of the decedent shall descend, or

22 may be acquired, as provided for in section

23 207(a)(3)(B), 207(a)(4), or 207(a)(5).

24 ‘‘(c) SPECIAL RULE RELATING TO SURVIVAL.—For

25 purposes of this section, an individual who fails to survive
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1 a decedent by at least 120 hours is deemed to have pre2 deceased the decedent for purposes of intestate succession,

3 and the heirs of the decedent shall be determined accord4 ingly. If it is not established by clear and convincing evi5 dence that an individual who would otherwise be an heir

6 survived the decedent by at least 120 hours, such indi7 vidual shall be deemed to have failed to survive for the

8 required time-period for purposes of the preceding sen9 tence.

10 ‘‘(d) PRETERMITTED SPOUSES AND CHILDREN.—

11 ‘‘(1) SPOUSES.—For purposes of this section, if

12 the surviving spouse of a testator married the tes13 tator after the testator executed his or her will, the

14 surviving spouse shall receive the intestate share in

15 trust or restricted land that such spouse would have

16 otherwise received if the testator had died intestate.

17 The preceding sentence shall not apply to an interest

18 in trust or restricted lands where—

19 ‘‘(A) the will is executed before the date

20 specified in section 234(a);

21 ‘‘(B) the testator’s spouse is a non-Indian

22 and the testator has devised his or her interests

23 in trust or restricted land to an Indian or Indi24 ans;
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1 ‘‘(C) it appears from the will or other evi2 dence that the will was made in contemplation

3 of the testator’s marriage to the surviving

4 spouse;

5 ‘‘(D) the will expresses the intention that

6 it is to be effective notwithstanding any subse7 quent marriage; or

8 ‘‘(E) the testator provided for the spouse

9 by a transfer of funds or property outside of

10 the will and an intent that the transfer be in

11 lieu of a testamentary provision is demonstrated

12 by the testator’s statements or is reasonably in13 ferred from the amount of the transfer or other

14 evidence.

15 ‘‘(2) CHILDREN.—For purposes of this section,

16 if a testator executed his or her will prior to the

17 birth of 1 or more children of the testator and the

18 omission is the product of inadvertence rather than

19 an intentional omission, such children shall share in

20 the decedent’s intestate interests in trust or re21 stricted lands as if the decedent had died intestate.

22 Any person recognized as an heir by virtue of adop23 tion under the Act of July 8, 1940 (54 Stat 746)

24 shall be treated as a decedent’s child under this sec25 tion.
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1 ‘‘(e) DIVORCE.—

2 ‘‘(1) SURVIVING SPOUSE.—

3 ‘‘(A) IN GENERAL.—For purposes of this

4 section, an individual who is divorced from the

5 decedent, or whose marriage to the decedent

6 has been annulled, shall not be considered to be

7 a surviving spouse unless, by virtue of a subse8 quent marriage, such individual is married to

9 the decedent at the time of death. A decree of

10 separation that does not terminate the status of

11 husband and wife shall not be considered a di12 vorce for purposes of this subsection.

13 ‘‘(B) RULE OF CONSTRUCTION.—Nothing

14 in subparagraph (A) shall be construed to pre15 vent an entity responsible for adjudicating in16 terests in trust or restricted land from giving

17 force and effect to a property right settlement

18 if one of the parties to the settlement dies be19 fore the issuance of a final decree dissolving the

20 marriage of the parties to the property settle21 ment.

22 ‘‘(2) EFFECT OF SUBSEQUENT DIVORCE ON A

23 WILL OR DEVISE.—If after executing a will the tes24 tator is divorced or the marriage of the testator is

25 annulled, upon the effective date of the divorce or
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1 annulment any disposition of interests in trust or re2 stricted land made by the will to the former spouse

3 shall be deemed to be revoked unless the will ex4 pressly provides otherwise. Property that is pre5 vented from passing to a former spouse based on the

6 preceding sentence shall pass as if the former spouse

7 failed to survive the decedent. Any provision of a will

8 that is revoked solely by operation of this paragraph

9 shall be revived by the testator’s remarriage to the

10 former spouse.

11 ‘‘(f) NOTICE.—To the extent practicable, the Sec12 retary shall notify the owners of trust and restricted land

13 of the provisions of this title. Such notice may, at the dis14 cretion of the Secretary, be provided together with the no15 tice required under section 207(g).

16 ‘‘SEC. 233. COLLECTION OF PAST-DUE AND OVER-DUE

17 CHILD SUPPORT

18 ‘‘The Secretary shall establish procedures to provide

19 for the collection of past-due or over-due support obliga20 tions entered by a tribal court or any other court of com21 petent jurisdiction from the revenue derived from an inter22 ests in trust or restricted land.
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1 ‘‘SEC. 234. EFFECTIVE DATE.

2 ‘‘(a) IN GENERAL.—The provisions of this title shall

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

4 the later of—

5 ‘‘(1) the date that is 1 year after the date of

6 enactment of this subtitle; or

7 ‘‘(2) the date specified in section 207(g)(5).’’.

8 (b) OTHER AMENDMENTS.—The Indian Land Con9 solidation Act (25 U.S.C. 2201 et seq.) is amended—

10 (1) by inserting after section 202, the following:

11 ‘‘Subtitle A—General Land

12 Consolidation’’;

13 (2) in section 206 (25 U.S.C. 2205)—

14 (A) in subsection (a)(3)—

15 (i) by striking ‘‘The Secretary’’ and

16 inserting the following:

17 ‘‘(A) IN GENERAL.—The Secretary’’; and

18 (ii) by adding at the end the fol19 lowing:

20 ‘‘(B) TRIBAL PROBATE CODES.—A tribal

21 probate code shall not prevent the devise of an

22 interest in trust or restricted land to non-mem23 bers of the tribe unless the code—

24 ‘‘(i) provides for the renouncing of in25 terests, reservation of life estates, and pay-
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1 ment of fair market value in the manner

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

3 ‘‘(ii) does not prohibit the devise of an

4 interest in an allotment to an Indian per5 son if such allotment was originally allot6 ted to the lineal ancestor of the devisee.’’;

7 and

8 (B) in subsection (c)(2)—

9 (i) in subparagraph (A)—

10 (I) by striking ‘‘IN GENERAL.—

11 Paragraph’’ and inserting the fol12 lowing:

13 ‘‘(A) NONAPPLICABILITY TO CERTAIN IN14 TERESTS.—

15 ‘‘(i) IN GENERAL.—Paragraph’’;

16 (II) by striking ‘‘if, while’’ and

17 inserting the following: ‘‘if—

18 ‘‘(I) while’’;

19 (III) by striking the period and

20 inserting ‘‘; or’’;

21 (IV) by adding at the end thereof

22 the following:

23 ‘‘(II) the interest is part of a

24 family farm that is devised to a mem25 ber of the decedent’s family if the dev-
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1 isee agrees that the Indian tribe that

2 exercises jurisdiction over the land

3 will have the opportunity to acquire

4 the interest for fair market value if

5 the interest is offered for sale to an

6 entity that is not a member of the

7 family of the owner of the land.

8 ‘‘(ii) RULE OF CONSTRUCTION.—

9 Nothing in clause (i)(II) shall be construed

10 to prevent or limit the ability of an owner

11 of land to which such clause applies to

12 mortgage such land or to limit the right of

13 the entity holding such a mortgage to fore14 close or otherwise enforce such a mortgage

15 agreement pursuant to applicable law.’’;

16 and

17 (ii) in subparagraph (B), by striking

18 ‘‘207(a)(6)(B)’’ and inserting ‘‘207(a)(6)’’;

19 (3) in section 207 (25 U.S.C. 2206)—

20 (A) in subsection (a)(6), by striking sub21 paragraph (A) and inserting the following:

22 ‘‘(A) DEVISE TO OTHERS.—

23 ‘‘(i) IN GENERAL.—Notwithstanding

24 paragraph (2), an owner of trust or re25 stricted land—
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1 ‘‘(I) who does not have an Indian

2 spouse or an Indian lineal descendant

3 may devise his or her interests in such

4 land to his or her spouse, lineal de5 scendant, heirs of the first or second

6 degree, or collateral heirs of the first

7 or second degree;

8 ‘‘(II) who does not have a spouse

9 or an Indian lineal descendent may

10 devise his or her interests in such land

11 to his or her lineal descendant, heirs

12 of the first or second degree, or collat13 eral heirs of the first or second de14 gree; or

15 ‘‘(III) who does not have a

16 spouse or lineal descendant may de17 vise his or her interests in such land

18 to his or her heirs of the first or sec19 ond degree, or collateral heirs of the

20 first or second degree.

21 ‘‘(ii) RULE OF CONSTRUCTION.—Any

22 devise of an interest in trust or restricted

23 land under clause (i) to a non-Indian will

24 be construed to devise a life estate unless

25 the devise explicitly states that the testator
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1 intends for the devisee to take the interest

2 in fee.

3 ‘‘(B) UNEXERCISED RIGHTS OF REDEMP4 TION.—

5 ‘‘(i) IN GENERAL.—This subpara6 graph (B) shall only apply to interests in

7 trust or restricted land that are held in

8 trust or restricted status as of the date of

9 enactment of the Indian Probate Reform

10 Act of 2001, and interests in any parcel of

11 land, at least a portion of which is in trust

12 or restricted status as of such date of en13 actment, that is subject to a tax sale, tax

14 foreclosure proceeding, or similar pro15 ceeding.

16 ‘‘(ii) EXERCISE OF RIGHT.—If the

17 owner of such an interest referred to in

18 clause (i) fails or refuses to exercise any

19 right of redemption that is available to

20 that owner under applicable law, the In21 dian tribe that exercises jurisdiction over

22 the trust or restricted land referred to in

23 such clause may exercise such right of re24 demption.
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1 ‘‘(iii) PENALTIES AND ASSESS2 MENTS.—To the extent permitted under

3 the Constitution of the United States, an

4 Indian tribe acquiring an interest under

5 clause (i) may acquire such an interest

6 without being required to pay—

7 ‘‘(I) penalties; or

8 ‘‘(II) past due assessments that

9 exceed the fair market value of the in10 terest.’’; and

11 (B) in subsection (g)(5), by striking ‘‘this

12 section’’ and inserting ‘‘subsections (a) and

13 (b)’’; and

14 (4) in section 217 (25 U.S.C. 2216)—

15 (A) in subsection (e)(3), by striking ‘‘pro16 spective applicants for the leasing, use, or con17 solidation of’’ and insert ‘‘any person that is

18 leasing, using or consolidating, or is applying

19 to, lease, use, or consolidate,’’; and

20 (B) in subsection (f)—

21 (i) by striking ‘‘After the expiration of

22 the limitation period provided for in sub23 section (b)(2) and prior’’ and inserting

24 ‘‘Prior’’; and
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1 (ii) by striking ‘‘sold, exchanged, or

2 otherwise conveyed under this section’’.

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

4 February 8, 1887 (24 Stat. 348) is amended by striking

5 the second proviso and inserting the following: ‘‘Provided,

6 That the rules of intestate succession under the Indian

7 Land Consolidation Act, or a tribal probate code approved

8 under such Act and regulations, shall apply thereto after

9 such patents have been executed and delivered:’’.

Æ