U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

89–982 PDF 2004

S. HRG. 108–379

AMERICAN INDIAN PROBATE REFORM ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

S. 550

TO AMEND INDIAN LAND CONSOLIDATION ACT TO IMPROVE

PROVISIONS RELATING TO PROBATE OF TRUST AND RESTRICTED LAND

OCTOBER 15, 2003

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 550, text of ........................................................................................................... 2

Statements:

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

Committee on Indian Affairs ....................................................................... 1

Lyons, Maurice, chairman, Morongo Band of Mission Indians, Banning,

CA ................................................................................................................... 67

Matt, Fred, chairman, Confederated Salish and Kootenai Tribes, Pablo,

MT .................................................................................................................. 64

Nordwall, Wayne, director, Western Region for Bureau of Indian Affairs,

Department of the Interior, Washington, DC ............................................. 60

Nunez, Austin, chairman, Indian Land Working Group, Albuquerque,

NM ................................................................................................................. 70

Oshiro, Lisa, directing attorney, California Indian Legal Services, Washington, DC ..................................................................................................... 68

APPENDIX

Prepared statements:

Hall, Tex G., president, National Congress of American Indians ................ 75

Lyons, Maurice ................................................................................................. 73

Matt, Fred (with attachment) .......................................................................... 82

Nordwall, Wayne .............................................................................................. 96

Nunez, Austin (with attachment) .................................................................... 106

Oshiro, Lisa ....................................................................................................... 143

(1)

AMERICAN INDIAN PROBATE REFORM ACT

WEDNESDAY, OCTOBER 15, 2003

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m. in room 485,

Senate Russell Building, the Hon. Ben Nighthorse Campbell (chairman of the committee) presiding.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The committee will be in session.

We have been notified that we have stacked roll calls votes at

10:40 a.m. Senator Inouye is probably not going to attend this

morning, so I am going ahead and start the hearing. I need to tell

everybody that because we have those stacked roll calls votes more

than likely we will not be coming back unless you want to wait for

several hours, and I do not think most people would want to do

that. I have another conflict, as well.

So we are going to take all the testimony and ask everyone who

is testifying to keep their statements down to about five minutes

or so. Most of the questions that Senator Inouye and I have will

be submitted in writing because of the very abbreviated time that

we have in the hearing this morning.

This past May this committee held a hearing on S. 550, the

American Indian Probate Reform Act of 2003. Yesterday, I introduced a complete substitute to S. 550 that is based on meetings

and a dialog held across the Nation with many Indian tribes since

the May 7 hearing. The goal of S. 550 and the substitute are the

same—to stop the fractionation of Indian lands and to help reconsolidate those lands. We hope this can be done through a commonsense approach and commonsense changes to the rules governing Indian probate.

[Text of S. 550 follows:]
2

1

II

108TH CONGRESS

1ST SESSION S. 550

To amend the Indian Land Consolidation Act to improve provisions relating

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

IN THE SENATE OF THE UNITED STATES

MARCH 6, 2003

Mr. CAMPBELL (for himself, Mr. INOUYE, and Mr. THOMAS) introduced the

following bill; which was read twice and referred to the Committee on Indian Affairs

A BILL

To amend the Indian Land Consolidation Act to improve

provisions relating to probate of trust and restricted

land, and for other purposes.

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 ‘‘American Indian Pro5 bate Reform Act of 2003’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

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

9 known as the ‘‘Indian General Allotment Act’’) (25
3

2

•S 550 IS

1 U.S.C. 331 et seq.), which authorized the allotment

2 of Indian reservations, did not permit Indian allot3 ment owners to provide for the testamentary disposi4 tion of the land that was allotted to them;

5 (2) that Act provided that allotments would de6 scend according to State law of intestate succession

7 based on the location of the allotment;

8 (3) the reliance of the Federal Government on

9 the State law of intestate succession with respect to

10 the descent of allotments has resulted in numerous

11 problems affecting Indian tribes, members of Indian

12 tribes, and the Federal Government, including—

13 (A) the increasingly fractionated ownership

14 of trust and restricted land as that land is in15 herited by successive generations of owners as

16 tenants in common;

17 (B) the application of different rules of in18 testate succession to each interest of a decedent

19 in or to trust or restricted land if that land is

20 located within the boundaries of more than 1

21 State, which application—

22 (i) makes probate planning unneces23 sarily difficult; and

24 (ii) impedes efforts to provide probate

25 planning assistance or advice;
4

3

•S 550 IS

1 (C) the absence of a uniform general pro2 bate code for trust and restricted land, which

3 makes it difficult for Indian tribes to work co4 operatively to develop tribal probate codes; and

5 (D) the failure of Federal law to address

6 or provide for many of the essential elements of

7 general probate law, either directly or by ref8 erence, which—

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

10 restricted land (and heirs and devisees of

11 owners); and

12 (ii) makes probate planning more dif13 ficult; and

14 (4) a uniform Federal probate code would

15 likely—

16 (A) reduce the number of fractionated in17 terests in trust or restricted land;

18 (B) facilitate efforts to provide probate

19 planning assistance and advice;

20 (C) facilitate intertribal efforts to produce

21 tribal probate codes in accordance with section

22 206 of the Indian Land Consolidation Act (25

23 U.S.C. 2205); and

24 (D) provide essential elements of general

25 probate law that are not applicable on the date
5

4

•S 550 IS

1 of enactment of this Act to interests in trust or

2 restricted land.

3 SEC. 3. INDIAN PROBATE REFORM.

4 (a) TESTAMENTARY DISPOSITION.—Section 207 of

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

6 amended by striking subsection (a) and inserting the fol7 lowing:

8 ‘‘(a) TESTAMENTARY DISPOSITION.—

9 ‘‘(1) GENERAL DEVISE OF AN INTEREST IN

10 TRUST OR RESTRICTED LAND.—

11 ‘‘(A) IN GENERAL.—Subject to any appli12 cable Federal law relating to the devise or de13 scent of trust or restricted land, or a tribal pro14 bate code enacted in accordance with section

15 206, the owner of an interest in trust or re16 stricted land may devise such an interest to—

17 ‘‘(i) an Indian tribe with jurisdiction

18 over the land; or

19 ‘‘(ii) any Indian in trust or restricted

20 status (or as a passive trust interest as

21 provided for in section 207A).

22 ‘‘(B) STATUS.—The devise of an interest

23 in trust or restricted land to an Indian under

24 subparagraph (A)(ii) shall not alter the status

25 of such an interest as a trust or restricted in-
6

5

•S 550 IS

1 terest unless the testator provides that the in2 terest is to be held as a passive trust interest.

3 ‘‘(2) DEVISE OF TRUST OR RESTRICTED LAND

4 IN PASSIVE TRUST OR FEE.—

5 ‘‘(A) IN GENERAL.—Except as provided

6 under any applicable Federal law, any interest

7 in trust or restricted land that is not devised in

8 accordance with paragraph (1) may be devised

9 only—

10 ‘‘(i) as a life estate to any non-Indian

11 person, with the remainder being devised

12 only in accordance with clause (ii), sub13 paragraph (C), or paragraph (1)(A);

14 ‘‘(ii) to the lineal descendant or heir

15 of the first or second degree of the testator

16 or, if the testator does not have an heir of

17 the first or second degree or a lineal de18 scendant, to any lineal descendant of an

19 Indian grandparent of the testator, as a

20 passive trust interest (referred to in this

21 section as an ‘eligible passive trust devi22 see’); or

23 ‘‘(iii) in fee in accordance with sub24 paragraph (C).
7

6

•S 550 IS

1 ‘‘(B) PRESUMED DEVISE OF PASSIVE

2 TRUST INTEREST.—Any devise to an eligible

3 passive trust devisee, or any devise of a remain4 der interest from the devise of a life estate

5 under subparagraph (A)(ii), that does not indi6 cate whether the interest is devised as a passive

7 trust interest or a fee interest shall be consid8 ered to devise a passive trust interest.

9 ‘‘(C) DEVISE OF A FEE INTEREST.—Sub10 ject to subparagraph (D), any interest in trust

11 or restricted land that is not devised in accord12 ance with paragraph (1), or devised to an eligi13 ble passive trust devisee in accordance with sub14 paragraph (A), may be devised to a non-Indian

15 in fee.

16 ‘‘(D) LIMITATION.—Any interest in trust

17 or restricted land that is subject to section 4 of

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

19 be devised only in accordance with—

20 ‘‘(i) that section;

21 ‘‘(ii) subparagraph (A); or

22 ‘‘(iii) paragraph (1).

23 ‘‘(3) DEVISE OF A PASSIVE TRUST INTEREST.—

24 ‘‘(A) IN GENERAL.—The holder of an in25 terest in trust or restricted land that is held as
8

7

•S 550 IS

1 a passive trust interest may devise the interest

2 as a passive trust interest only to—

3 ‘‘(i)(I) any Indian; or

4 ‘‘(II) the Indian tribe that exercises

5 jurisdiction over the interest;

6 ‘‘(ii) the lineal descendants, or heirs

7 of the first or second degree, of the holder;

8 ‘‘(iii) any living descendant of the de9 cedent from whom the holder acquired the

10 interest by devise or descent; or

11 ‘‘(iv) any person that owns a preexist12 ing interest or a passive trust interest in

13 the same parcel of land, if the preexisting

14 interest is held in trust or restricted status

15 or in passive trust status.

16 ‘‘(B) INELIGIBLE DEVISEES AND INTES17 TATE SUCCESSION.—A passive trust interest

18 that is devised to a person that is not eligible

19 under subparagraph (A) or that is not disposed

20 of by a valid will shall pass in accordance with

21 the applicable law of intestate succession as

22 provided for in subsection (b).’’.

23 (b) NONTESTAMENTARY DISPOSITION.—Section 207

24 of the Indian Land Consolidation Act (25 U.S.C. 2206)
9

8

•S 550 IS

1 is amended by striking subsection (b) and inserting the

2 following:

3 ‘‘(b) NONTESTAMENTARY DISPOSITION.—

4 ‘‘(1) RULES OF DESCENT.—Subject to any ap5 plicable Federal law relating to the devise or descent

6 of trust or restricted property, any interest in trust

7 or restricted land that is not disposed of by a valid

8 will—

9 ‘‘(A) shall descend according to a tribal

10 probate code that is approved in accordance

11 with section 206; or

12 ‘‘(B) in the case of an interest in trust or

13 restricted land to which such a code does not

14 apply, shall descend in accordance with—

15 ‘‘(i) paragraphs (2) through (7);

16 ‘‘(ii) section 207A; and

17 ‘‘(iii) other applicable Federal law.

18 ‘‘(2) NO APPLICABLE CODE.—An intestate in19 terest to which a code described in paragraph (1)

20 does not apply—

21 ‘‘(A) shall include—

22 ‘‘(i) an interest acquired by a dece23 dent through devise or inheritance (re24 ferred to in this subsection as a ‘devise or

25 inheritance interest’); or
10

9

•S 550 IS

1 ‘‘(ii) an interest acquired by a dece2 dent by any means other than devise or in3 heritance (referred to in this subsection as

4 an ‘acquired interest’), if—

5 ‘‘(I) the decedent—

6 ‘‘(aa) acquired additional

7 undivided interest in the same

8 parcel in which the interest is

9 held, by a means other than de10 vise or inheritance; or

11 ‘‘(bb) acquired land adjoin12 ing the parcel of land in which

13 the interest is held; or

14 ‘‘(II) the parcel of land in which

15 the interest is held includes the resi16 dence of the spouse of the decedent;

17 and

18 ‘‘(B) shall descend as follows:

19 ‘‘(i) SURVIVING INDIAN SPOUSE.—

20 ‘‘(I) IN GENERAL.—If a decedent

21 is survived by an Indian spouse, and

22 the estate of the decedent includes 1

23 or more acquired interests, the spouse

24 of the decedent shall receive all of the

25 acquired interests.
11

10

•S 550 IS

1 ‘‘(II) DEVISE OR INHERITANCE

2 INTERESTS.—If a decedent is survived

3 by an Indian spouse, and the estate of

4 the decedent includes 1 or more devise

5 or inheritance interests—

6 ‘‘(aa) if the decedent is not

7 survived by an Indian heir of the

8 first or second degree, the spouse

9 of the decedent shall receive all

10 of the devise or inheritance inter11 ests; and

12 ‘‘(bb) if the decedent is sur13 vived by an Indian heir of the

14 first or second degree, the devise

15 or inheritance interest of the de16 cedent shall descend in accord17 ance with paragraph (3)(A).

18 ‘‘(ii) SURVIVING NON-INDIAN

19 SPOUSE.—

20 ‘‘(I) IN GENERAL.—If a decedent

21 is survived by a non-Indian spouse,

22 and the estate of the decedent in23 cludes 1 or more acquired interests—
12

11

•S 550 IS

1 ‘‘(aa) the spouse of the dece2 dent shall receive a life estate in

3 each acquired interest; and

4 ‘‘(bb)(AA) if the decedent is

5 survived by an Indian heir of the

6 first or second degree, the re7 mainder interests shall descend

8 in accordance with paragraph

9 (3)(A); and

10 ‘‘(BB) if the decedent is not

11 survived by an Indian heir of the

12 first or second degree, the re13 mainder interest shall descend in

14 accordance with paragraph

15 (3)(C).

16 ‘‘(II) DEVISE OR INHERITANCE

17 INTERESTS.—If the estate of a dece18 dent described in subclause (I) in19 cludes 1 or more devise or inheritance

20 interests—

21 ‘‘(aa) if the decedent is sur22 vived by an Indian heir of the

23 first or second degree, the devise

24 or inheritance interests shall de-
13

12

•S 550 IS

1 scend in accordance with para2 graph (3)(A); and

3 ‘‘(bb) if the decedent is not

4 survived by an Indian heir of the

5 first or second degree, the devise

6 or inheritance interests shall de7 scend in accordance with para8 graph (3)(C).

9 ‘‘(iii) NO SURVIVING SPOUSE.—If a

10 decedent is not survived by a spouse, and

11 the estate of the decedent includes 1 or

12 more acquired interests or 1 or more de13 vise or inheritance interests—

14 ‘‘(I) if the decedent is survived by

15 an Indian heir of the first or second

16 degree, the acquired interests or de17 vise or inheritance interests shall de18 scend in accordance with paragraph

19 (3)(A); and

20 ‘‘(II) if the decedent is not sur21 vived by an Indian heir of the first or

22 second degree, the acquired interests

23 or devise or inheritance interests shall

24 descend in accordance with paragraph

25 (3)(C).
14

13

•S 550 IS

1 ‘‘(3) RULES GOVERNING DESCENT OF ES2 TATE.—

3 ‘‘(A) INDIAN HEIRS.—For the purpose of

4 this section, an Indian heir of the first or sec5 ond degree shall inherit in the following order:

6 ‘‘(i) To the Indian children of the de7 cedent (or if 1 or more of those Indian

8 children do not survive the decedent, the

9 Indian children of the deceased child of the

10 decedent, by right of representation) shall

11 inherit in equal shares.

12 ‘‘(ii) If the decedent has no Indian

13 children (or grandchildren that inherit by

14 right of representation under clause (i)), to

15 the Indian brothers and sisters of the dece16 dent, in equal shares.

17 ‘‘(iii) If the decedent has no Indian

18 brothers or sisters, to the Indian parent or

19 parents of the decedent.

20 ‘‘(B) RIGHT OF REPRESENTATION.—In

21 any case involving the determination of a right

22 of representation—

23 ‘‘(i) each interest in trust land shall

24 be equally divided into a number of shares

25 that equals the sum obtained by adding—
15

14

•S 550 IS

1 ‘‘(I) the number of surviving

2 heirs in the nearest degree of kinship;

3 and

4 ‘‘(II) the number of deceased in5 dividuals in that same degree, if any,

6 who left issue who survive the dece7 dent;

8 ‘‘(ii) each surviving heir described in

9 clause (i)(I) shall receive 1 share; and

10 ‘‘(iii)(I) each deceased individual de11 scribed in clause (i)(II) shall receive 1

12 share; and

13 ‘‘(II) that share shall be divided

14 equally among the surviving issue of the

15 deceased person.

16 ‘‘(C) NO INDIAN HEIRS.—

17 ‘‘(i) DEFINITION OF COLLATERAL

18 HEIR.—In this subparagraph, the term

19 ‘collateral heir’ means an aunt, uncle,

20 niece, nephew, or first cousin of a dece21 dent.

22 ‘‘(ii) NO HEIRS.—If a decedent does

23 not have an Indian heir of the first or sec24 ond degree, an interest shall descend to

25 any Indian collateral heir who is a co-
16

15

•S 550 IS

1 owner of an interest owned by the dece2 dent.

3 ‘‘(iii) MULTIPLE COLLATERAL

4 HEIRS.—If—

5 ‘‘(I) an Indian collateral heir

6 owns an interest to which clause (ii)

7 applies that is larger than the interest

8 held by any other such collateral heir,

9 the interest shall descend to the col10 lateral heir that owns the largest un11 divided interest in the parcel; or

12 ‘‘(II) 2 or more collateral heirs

13 own equal shares in an interest to

14 which clause (ii) applies, the interest

15 shall be divided equally among those

16 collateral heirs.

17 ‘‘(iv) NO OWNERSHIP.—If none of the

18 Indian collateral heirs of a decedent owns

19 an interest to which clause (ii) applies,

20 subject to clause (v), the interest shall de21 scend to the Indian tribe that exercises ju22 risdiction over the parcel of trust or re23 stricted land involved.

24 ‘‘(v) ACQUISITION OF INTEREST.—
17

16

•S 550 IS

1 ‘‘(I) IN GENERAL.—Notwith2 standing clause (iv), an Indian co3 owner of a parcel of trust or restricted

4 land may acquire an interest that

5 would otherwise descend under that

6 clause by paying into the estate of the

7 decedent, before the close of the pro8 bate of the estate, the fair market

9 value of the interest in or to the land.

10 ‘‘(II) MULTIPLE CO-OWNERS.—If

11 more than 1 Indian co-owner (includ12 ing the Indian tribe referred to in

13 clause (iv)) offers to pay for an inter14 est described in subclause (I), the

15 highest bidder shall acquire the inter16 est.

17 ‘‘(4) SPECIAL RULE RELATING TO SURVIVAL.—

18 In the case of intestate succession under this sec19 tion, if an individual who fails to survive a decedent

20 by at least 120 hours, as established by clear and

21 convincing evidence—

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

23 predeceased the decedent for the purpose of in24 testate succession; and
18

17

•S 550 IS

1 ‘‘(B) the heirs of the decedent shall be de2 termined in accordance with this section.

3 ‘‘(5) PRETERMITTED SPOUSES AND CHIL4 DREN.—

5 ‘‘(A) SPOUSES.—

6 ‘‘(i) IN GENERAL.—Except as pro7 vided in clause (ii), if the surviving spouse

8 of a testator married the testator after the

9 testator executed the will of the testator,

10 the surviving spouse shall receive the intes11 tate share in trust or restricted land that

12 the spouse would have received if the tes13 tator had died intestate.

14 ‘‘(ii) EXCEPTION.—Clause (i) shall

15 not apply to an interest in trust or re16 stricted land in a case in which—

17 ‘‘(I) the will of a testator is exe18 cuted before the date of enactment of

19 this subparagraph;

20 ‘‘(II)(aa) the spouse of a testator

21 is a non-Indian; and

22 ‘‘(bb) the testator devised the in23 terests in trust or restricted land of

24 the testator to 1 or more Indians;
19

18

•S 550 IS

1 ‘‘(III) it appears, based on an ex2 amination of the will or other evi3 dence, that the will was made in con4 templation of the marriage of the tes5 tator to the surviving spouse;

6 ‘‘(IV) the will expresses the in7 tention that the will is to be effective

8 notwithstanding any subsequent mar9 riage; or

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

11 the spouse by a transfer of funds or

12 property outside the will; and

13 ‘‘(bb) an intent that the transfer

14 be in lieu of a testamentary provision

15 is demonstrated by statements of the

16 testator or through a reasonable infer17 ence based on the amount of the

18 transfer or other evidence.

19 ‘‘(B) CHILDREN.—

20 ‘‘(i) IN GENERAL.—If a testator exe21 cuted the will of the testator before the

22 birth or adoption of 1 or more children of

23 the testator, and the omission of the chil24 dren from the will is a product of inadvert25 ence rather than an intentional omission,
20

19

•S 550 IS

1 the children shall share in the intestate in2 terests of the decedent in trust or re3 stricted land as if the decedent had died

4 intestate.

5 ‘‘(ii) ADOPTED HEIRS.—Any person

6 recognized as an heir by virtue of adoption

7 under the Act of July 8, 1940 (25 U.S.C.

8 372a), shall be treated as the child of a de9 cedent under this subsection.

10 ‘‘(6) DIVORCE.—

11 ‘‘(A) SURVIVING SPOUSE.—

12 ‘‘(i) IN GENERAL.—An individual who

13 is divorced from a decedent, or whose mar14 riage to the decedent has been annulled,

15 shall not be considered to be a surviving

16 spouse unless, by virtue of a subsequent

17 marriage, the individual is married to the

18 decedent at the time of death of the dece19 dent.

20 ‘‘(ii) SEPARATION.—A decree of sepa21 ration that does not dissolve a marriage,

22 and terminate the status of husband and

23 wife, shall not be considered a divorce for

24 the purpose of this subsection.
21

20

•S 550 IS

1 ‘‘(iii) NO EFFECT ON ADJUDICA2 TIONS.—Nothing in clause (i) prevents an

3 entity responsible for adjudicating an in4 terest in trust or restricted land from giv5 ing effect to a property right settlement if

6 1 of the parties to the settlement dies be7 fore the issuance of a final decree dissolv8 ing the marriage of the parties to the prop9 erty settlement.

10 ‘‘(B) EFFECT OF SUBSEQUENT DIVORCE

11 ON A WILL OR DEVISE.—

12 ‘‘(i) IN GENERAL.—If, after executing

13 a will, a testator is divorced or the mar14 riage of the testator is annulled, on the ef15 fective date of the divorce or annulment,

16 any disposition of interests in trust or re17 stricted land made by the will to the

18 former spouse of the testator shall be con19 sidered to be revoked unless the will ex20 pressly provides otherwise.

21 ‘‘(ii) PROPERTY.—Property that is

22 prevented from passing to a former spouse

23 of a decedent under clause (i) shall pass as

24 if the former spouse failed to survive the

25 decedent.
22

21

•S 550 IS

1 ‘‘(iii) PROVISIONS OF WILLS.—Any

2 provision of a will that is considered to be

3 revoked solely by operation of this sub4 paragraph shall be revived by the remar5 riage of a testator to the former spouse of

6 the testator.

7 ‘‘(7) NOTICE.—

8 ‘‘(A) IN GENERAL.—To the maximum ex9 tent practicable, the Secretary shall notify each

10 owner of trust and restricted land of the provi11 sions of this Act.

12 ‘‘(B) COMBINED NOTICES.—The notice

13 under subparagraph (A) may, at the discretion

14 of the Secretary, be provided with the notice re15 quired under section 207(g).’’.

16 (c) RULE OF CONSTRUCTION.—Section 207 of the

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

18 amended by adding at the end the following:

19 ‘‘(h) APPLICABLE FEDERAL LAW.—

20 ‘‘(1) IN GENERAL.—For purpose of subsections

21 (a) and (b), any reference to applicable Federal law

22 includes—

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

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

25 ‘‘(C) Public Law 92–443 (86 Stat. 744);
23

22

•S 550 IS

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

2 and

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

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

5 section amends or otherwise affects any law de6 scribed in paragraph (1), or any other Federal law,

7 that provides for the devise and descent of any trust

8 or restricted land located on a specific Indian res9 ervation.’’.

10 (d) PASSIVE TRUST INTEREST STATUS FOR TRUST

11 OR RESTRICTED LAND.—The Indian Land Consolidation

12 Act is amended by inserting after section 207 (25 U.S.C.

13 2206) the following:

14 ‘‘SEC. 207A. PASSIVE TRUST INTEREST STATUS FOR TRUST

15 OR RESTRICTED LAND.

16 ‘‘(a) PASSIVE TRUST INTEREST STATUS.—

17 ‘‘(1) IN GENERAL.—The owner of an interest in

18 trust or restricted land may submit to the Secretary

19 an application requesting that the interest be held in

20 passive trust interest status.

21 ‘‘(2) AUTHORITY.—An application under para22 graph (1) may authorize the Secretary to amend any

23 existing lease or agreement with respect to the inter24 est that is the subject of the application.
24

23

•S 550 IS

1 ‘‘(b) APPROVAL.—On the approval of an application

2 by the Secretary under subsection (a), an interest in trust

3 or restricted land covered by the application shall be held

4 as a passive trust interest in accordance with this section.

5 ‘‘(c) REQUIREMENTS.—Except as provided in this

6 section, an interest in trust or restricted land that is held

7 as a passive trust interest under this section—

8 ‘‘(1) shall continue to be covered under any ap9 plicable tax-exempt status, and continue to be sub10 ject to any restrictions on alienation, until the inter11 est is patented in fee;

12 ‘‘(2) may, without the approval of the Sec13 retary, be—

14 ‘‘(A) leased for a period of not to exceed

15 25 years;

16 ‘‘(B) mortgaged in accordance with the Act

17 of March 29, 1956 (25 U.S.C. 483a); or

18 ‘‘(C) sold or conveyed to—

19 ‘‘(i) an Indian;

20 ‘‘(ii) the Indian tribe that exercises

21 jurisdiction over the interest; or

22 ‘‘(iii) a co-owner of an interest in the

23 parcel of land in which the interest is held,

24 if the co-owner owns a pre-existing trust,
25

24

•S 550 IS

1 restricted interest, or a passive trust inter2 est in the parcel; and

3 ‘‘(3) may be subject to an ordinance or resolu4 tion enacted under subsection (d).

5 ‘‘(d) ORDINANCE OR RESOLUTION FOR REMOVAL OF

6 STATUS.—

7 ‘‘(1) IN GENERAL.—The governing body of the

8 Indian tribe that exercises jurisdiction over an inter9 est in trust or restricted land that is held as a pas10 sive trust interest in accordance with this section

11 may enact an ordinance or resolution to permit the

12 owner of the interest to apply to the Secretary for

13 the removal of the trust or restricted status of any

14 portion of the land that is subject to the jurisdiction

15 of the Indian tribe.

16 ‘‘(2) REVIEW BY SECRETARY.—The Secretary

17 shall review, and may approve, an ordinance or reso18 lution enacted by an Indian tribe in accordance with

19 paragraph (1) if the Secretary determines that the

20 ordinance or resolution—

21 ‘‘(A) is consistent with this Act; and

22 ‘‘(B) would not increase fractionated own23 ership of Indian land.

24 ‘‘(e) REVENUES OR ROYALTIES.—
26

25

•S 550 IS

1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (2), the Secretary shall not be responsible for

3 the collection of or accounting for any lease revenues

4 or royalties accruing to an interest held as a passive

5 trust interest by any person under this section.

6 ‘‘(2) EXCEPTION.—Paragraph (1) shall not

7 apply to an interest described in that paragraph if

8 the Secretary approves an application to take the in9 terest into active trust status on behalf of an Indian

10 or an Indian tribe in accordance with regulations

11 promulgated by the Secretary.

12 ‘‘(3) AUTHORITY OF SECRETARY.—Nothing in

13 this subsection alters any authority or responsibility

14 of the Secretary with respect to an interest in trust

15 or restricted land held in active trust status (includ16 ing an undivided interest included in the same parcel

17 of land as an undivided passive trust interest).

18 ‘‘(f) JURISDICTION OVER PASSIVE TRUST INTER19 EST.—With respect to an interest in trust or restricted

20 land that is devised or held as a passive trust interest

21 under this section—

22 ‘‘(1) an Indian tribe that exercises jurisdiction

23 over such an interest shall continue to exercise juris24 diction over the land that is held as a passive trust

25 interest; and
27

26

•S 550 IS

1 ‘‘(2) any person holding, leasing, or otherwise

2 using the land shall be considered to consent to the

3 jurisdiction of the Indian tribe with respect to the

4 use of the land (including any effects associated with

5 any use of the land).

6 ‘‘(g) PROBATE OF PASSIVE TRUST INTERESTS.—

7 ‘‘(1) IN GENERAL.—An interest in trust or re8 stricted land that is held as a passive trust interest

9 under this section shall be subject to—

10 ‘‘(A) probate by the Secretary in accord11 ance with this Act; and

12 ‘‘(B) all other laws applicable to the pro13 bate of trust or restricted land.

14 ‘‘(2) COMMENCEMENT OF PROBATE.—Any in15 terested party may file an application to commence

16 the probate of an interest in trust or restricted land

17 held as a passive trust interest.

18 ‘‘(h) REGULATIONS.—The Secretary shall promul19 gate such regulations as are necessary to carry out this

20 section.’’.

21 SEC. 4. PARTITION OF INDIAN LAND.

22 Section 205 of the Indian Land Consolidation Act

23 (25 U.S.C. 2204) is amended by adding at the end the

24 following:

25 ‘‘(c) PARTITION.—
28

27

•S 550 IS

1 ‘‘(1) DEFINITIONS.—In this subsection:

2 ‘‘(A) ELIGIBLE INDIAN TRIBE.—The term

3 ‘eligible Indian tribe’ means an Indian tribe

4 that—

5 ‘‘(i) owns eligible land; and

6 ‘‘(ii) consents to partition of the eligi7 ble land.

8 ‘‘(B) ELIGIBLE LAND.—The term ‘eligible

9 land’ means an undivided parcel of land that—

10 ‘‘(i) is located within the reservation

11 of an Indian tribe; or

12 ‘‘(ii) is otherwise under the jurisdic13 tion of an Indian tribe.

14 ‘‘(2) REQUIREMENTS.—Notwithstanding any

15 other provision of law, in accordance with this sub16 section and subject to paragraphs (3), (4), and

17 (5)—

18 ‘‘(A) an eligible Indian tribe may apply to

19 the Secretary for the partition of a parcel of eli20 gible land; and

21 ‘‘(B) the Secretary may commence a proc22 ess for partitioning the eligible land under this

23 subsection if—

24 ‘‘(i) the eligible Indian tribe meets the

25 applicable ownership requirement under
29

28

•S 550 IS

1 subparagraph (A) or (B) of paragraph (3);

2 or

3 ‘‘(ii) the Secretary determines that it

4 is reasonable to believe that the partition

5 of the eligible land owned would be in ac6 cordance with paragraph (3)(C).

7 ‘‘(3) TRIBAL OWNERSHIP.—A parcel of eligible

8 land may be partitioned under this subsection if,

9 with respect to the eligible Indian tribe involved—

10 ‘‘(A) the eligible Indian tribe owns 50 per11 cent or more of the undivided interest in the

12 parcel;

13 ‘‘(B) the eligible Indian tribe is the owner

14 of the largest quantity of undivided interest in

15 the parcel; or

16 ‘‘(C) the owners of undivided interests

17 equal to at least 50 percent of the undivided in18 terest in the parcel (including any undivided in19 terest owned by the eligible Indian tribe) con20 sent or do not object to the partition.

21 ‘‘(4) TRIBAL CONSENT.—A parcel of land that

22 is located within the reservation of an Indian tribe

23 or otherwise under the jurisdiction of an Indian tribe

24 shall be partitioned under this subsection only if the

25 Indian tribe does not object to the partition.
30

29

•S 550 IS

1 ‘‘(5) APPLICABILITY.—This subsection shall not

2 apply to any parcel of land that is the bona fide resi3 dence of any person unless the person consents to

4 the partition in writing.

5 ‘‘(6) PARTITION IN KIND.—

6 ‘‘(A) IN GENERAL.—The Secretary shall

7 commence the partition process described in

8 subparagraph (B) if—

9 ‘‘(i) an eligible Indian tribe applies to

10 partition eligible land under this para11 graph; and

12 ‘‘(ii)(I) the Secretary determines that

13 the eligible Indian tribe meets the applica14 ble ownership requirements of subpara15 graph (A) or (B) of paragraph (3); or

16 ‘‘(II) the Secretary determines that it

17 is reasonable to believe that the partition

18 would be in accordance with paragraph

19 (3)(C).

20 ‘‘(B) PARTITION PROCESS.—In carrying

21 out any partition under this paragraph, the

22 Secretary shall—

23 ‘‘(i) provide, to each owner of any un24 divided interest in eligible land to be parti25 tioned, through publication or other appro-
31

30

•S 550 IS

1 priate means, notice of the proposed parti2 tion;

3 ‘‘(ii) make available to any interested

4 party a copy of any proposed partition

5 plan submitted by an eligible Indian tribe

6 or proposed by the Secretary; and

7 ‘‘(iii) review—

8 ‘‘(I) any proposed partition plan

9 submitted by any owner of an undi10 vided interest in the eligible land; and

11 ‘‘(II) any comments or objections

12 concerning a partition, or any pro13 posed plan of partition, submitted by

14 any owner or any other interested

15 party.

16 ‘‘(C) DETERMINATION NOT TO PARTI17 TION.—If the Secretary determines that a par18 cel of eligible land cannot be partitioned in a

19 manner that is fair and equitable to the owners

20 of the eligible land, the Secretary shall inform

21 each owner of the eligible land of—

22 ‘‘(i) the determination of the Sec23 retary; and

24 ‘‘(ii) the right of the owner to appeal

25 the determination.
32

31

•S 550 IS

1 ‘‘(D) PARTITION WITH CONSENT OF ELIGI2 BLE INDIAN TRIBE.—If the Secretary deter3 mines that a parcel of eligible land may be par4 titioned in a manner that is fair and equitable

5 to the owners of the eligible land, and the appli6 cable eligible Indian tribe meets the applicable

7 ownership requirements under subparagraph

8 (A) or (B) of paragraph (3), the Secretary

9 shall—

10 ‘‘(i) approve a plan of partition;

11 ‘‘(ii) provide notice to the owners of

12 the eligible land of the determination of

13 the Secretary;

14 ‘‘(iii) make a copy of the plan of par15 tition available to each owner of the eligi16 ble land; and

17 ‘‘(iv) inform each owner of the right

18 to appeal the determination of the Sec19 retary to partition the eligible land in ac20 cordance with the plan.

21 ‘‘(E) PARTITION WITH CONSENT; IMPLIED

22 CONSENT.—If the Secretary determines that a

23 parcel of eligible land may be partitioned in a

24 manner that is fair and equitable to the owners

25 of the eligible land, but the eligible Indian tribe
33

32

•S 550 IS

1 involved does not meet the applicable ownership

2 requirements under subparagraph (A) or (B) of

3 paragraph (3), the Secretary shall—

4 ‘‘(i)(I) make a plan of partition avail5 able to the owners of the parcel; and

6 ‘‘(II) inform the owners that the eligi7 ble land will be partitioned in accordance

8 with the plan if the owners of 50 percent

9 or more of undivided ownership interest in

10 the eligible land—

11 ‘‘(aa) consent to the partition; or

12 ‘‘(bb) do not object to the parti13 tion by such date as may be estab14 lished by the Secretary; and

15 ‘‘(ii)(I) if the owners of 50 percent or

16 more of undivided ownership interest in

17 the eligible land consent to the partition or

18 do not object by a date established by the

19 Secretary under clause (i)(II)(bb), inform

20 the owners of the eligible land that—

21 ‘‘(aa) the plan for partition is

22 final; and

23 ‘‘(bb) the owners have the right

24 to appeal the determination of the
34

33

•S 550 IS

1 Secretary to partition the eligible

2 land; or

3 ‘‘(II) if the owners of 50 percent or

4 more of the undivided ownership interest

5 in the eligible land object to the partition,

6 inform the eligible Indian tribe of the ob7 jection.

8 ‘‘(F) SUCCESSIVE PARTITION PLANS.—In

9 carrying out subparagraph (E) in accordance

10 with paragraph (3)(C), the Secretary may, in

11 accordance with subparagraph (E)—

12 ‘‘(i) approve 1 or more successive

13 plans of partition; and

14 ‘‘(ii) make those plans available to the

15 owners of the eligible land to be parti16 tioned.

17 ‘‘(G) PLAN OF PARTITION.—A plan of par18 tition approved by the Secretary in accordance

19 with subparagraph (D) or (E)—

20 ‘‘(i) may determine that 1 or more of

21 the undivided interests in a parcel of eligi22 ble land are not susceptible to a partition

23 in kind;

24 ‘‘(ii) may provide for the sale or ex25 change of those undivided interests to—
35

34

•S 550 IS

1 ‘‘(I) 1 or more of the owners of

2 undivided interests in the eligible

3 land; or

4 ‘‘(II) the Secretary in accordance

5 with section 213; and

6 ‘‘(iii) shall provide that the sale of any

7 undivided interest referred to in clause (ii)

8 shall be for not less than the fair market

9 value of the interest.

10 ‘‘(7) PARTITION BY SALE.—

11 ‘‘(A) IN GENERAL.—The Secretary shall

12 commence the partition process described in

13 subparagraph (B) if—

14 ‘‘(i) an eligible Indian tribe applies to

15 partition a parcel of eligible land under

16 this subsection; and

17 ‘‘(ii)(I) the Secretary determines that

18 the Indian tribe meets the applicable own19 ership requirements of subparagraph (A)

20 or (B) of paragraph (3); or

21 ‘‘(II) the Secretary determines that it

22 is reasonable to believe that the partition

23 would be in accordance with paragraph

24 (3)(C).
36

35

•S 550 IS

1 ‘‘(B) PARTITION PROCESS.—In carrying

2 out any partition of eligible land under this

3 paragraph, the Secretary—

4 ‘‘(i) shall conduct a preliminary ap5 praisal of the eligible land;

6 ‘‘(ii) shall provide to the owners of the

7 eligible land, through publication or other

8 appropriate means—

9 ‘‘(I) notice of the application of

10 the eligible Indian tribe to partition

11 the eligible land; and

12 ‘‘(II) access to the preliminary

13 appraisal conducted in accordance

14 with clause (i);

15 ‘‘(iii) shall inform each owner of the

16 eligible land of the right to submit to the

17 Secretary comments relating to the pre18 liminary appraisal;

19 ‘‘(iv) may, based on comments re20 ceived under clause (iii), modify the pre21 liminary appraisal or provide for the con22 duct of a new appraisal; and

23 ‘‘(v) shall—

24 ‘‘(I) issue a final appraisal for

25 the eligible land;
37

36

•S 550 IS

1 ‘‘(II) provide to the owners of the

2 eligible land and the appropriate In3 dian tribes access to the final ap4 praisal; and

5 ‘‘(III) inform the Indian tribes of

6 the right to appeal the final appraisal.

7 ‘‘(C) PURCHASE BY ELIGIBLE INDIAN

8 TRIBE.—If an eligible Indian tribe enters into

9 an agreement with the Secretary to pay fair

10 market value for eligible land partitioned under

11 this subsection, as determined by the final ap12 praisal of the eligible land issued under sub13 paragraph (B)(v)(I) (including any appraisal

14 issued by the Secretary after an appeal by the

15 Indian tribe under subparagraph (B)(v)(III)),

16 and the eligible Indian tribe meets the applica17 ble ownership requirements of subparagraph

18 (A) or (B) of paragraph (3), the Secretary

19 shall—

20 ‘‘(i) provide to each owner of the eligi21 ble land notice of the agreement; and

22 ‘‘(ii) inform the owners of the right to

23 appeal the decision of the Secretary to

24 enter into the agreement (including the

25 right to appeal any final appraisal of the
38

37

•S 550 IS

1 parcel referred to in subparagraph

2 (B)(v)(III)).

3 ‘‘(D) PARTITION WITH CONSENT; IMPLIED

4 CONSENT.—

5 ‘‘(i) IN GENERAL.—If an eligible In6 dian tribe agrees to pay fair market value

7 for eligible land partitioned under this sub8 section, as determined by the final ap9 praisal of the eligible land issued under

10 subparagraph (B)(v)(I) (including any ap11 praisal issued by the Secretary after an ap12 peal by the Indian tribe under subpara13 graph (B)(v)(III)), but does not meet the

14 applicable ownership requirements of sub15 paragraph (A) or (B) of paragraph (3), the

16 Secretary shall—

17 ‘‘(I) provide to each owner of the

18 undivided interest in the eligible land

19 notice that the Indian tribe did not

20 meet the requirements; and

21 ‘‘(II) inform the owners that the

22 eligible land will be partitioned by sale

23 unless the partition is opposed by the

24 owners of 50 percent or more of the
39

38

•S 550 IS

1 undivided ownership interest in the el2 igible land.

3 ‘‘(ii) FAILURE TO OBJECT TO PARTI4 TION.—If the owners of 50 percent or

5 more of undivided ownership interest in or

6 to a parcel of eligible land consent to the

7 partition of the eligible land, or do not ob8 ject to the partition by such date as may

9 be established by the Secretary, the Sec10 retary shall inform the owners of the eligi11 ble land of the right to appeal the deter12 mination of the Secretary to partition the

13 eligible land (including the results of the

14 final appraisal issued under subparagraph

15 (B)(v)(I)).

16 ‘‘(iii) OBJECTION TO PARTITION.—If

17 the owners of 50 percent or more of the

18 undivided ownership interest in a parcel of

19 eligible land object to the partition of the

20 eligible land—

21 ‘‘(I) the Secretary shall notify the

22 eligible Indian tribe of the objection;

23 and

24 ‘‘(II) the eligible Indian tribe and

25 the Secretary may agree to increase
40

39

•S 550 IS

1 the amount offered to purchase the

2 undivided ownership interests in the

3 eligible land.

4 ‘‘(8) ENFORCEMENT.—

5 ‘‘(A) IN GENERAL.—If, with respect to a

6 parcel of eligible land, a partition in kind is ap7 proved under subparagraph (D) or (E) of para8 graph (6), or a partition by sale is approved

9 under paragraph (7)(C), and the owner of an

10 interest in or to the eligible land fails to convey

11 the interest to the Indian tribe, the Indian tribe

12 or the United States may—

13 ‘‘(i) bring a civil action in the United

14 States district court for the district in

15 which the eligible land is located; and

16 ‘‘(ii) request the court to issue an ap17 propriate order for the partition in kind, or

18 partition by sale to the Indian tribe, of the

19 eligible land.

20 ‘‘(B) FEDERAL ROLE.—With respect to

21 any civil action brought under subparagraph

22 (A)—

23 ‘‘(i) the United States—

24 ‘‘(I) shall receive notice of the

25 civil action; and
41

40

•S 550 IS

1 ‘‘(II) may be a party to the civil

2 action; and

3 ‘‘(ii) the civil action shall not be dis4 missed, and no relief requested shall be de5 nied, on the ground that the civil action is

6 against the United States or that the

7 United States is an indispensable party.’’.

8 SEC. 5. ADDITIONAL AMENDMENTS.

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

10 Act (25 U.S.C. 2201 et seq.) is amended—

11 (1) in the second sentence of section 205(a) (25

12 U.S.C. 2204(a)), by striking ‘‘over 50 per centum of

13 the undivided interests’’ and inserting ‘‘undivided in14 terests equal to at least 50 percent of the undivided

15 interest’’;

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

17 (A) in subsection (a), by striking para18 graph (3) and inserting the following:

19 ‘‘(3) TRIBAL PROBATE CODES.—Except as pro20 vided in any applicable Federal law, the Secretary

21 shall not approve a tribal probate code, or an

22 amendment to such a code, that prevents the devise

23 of an interest in trust or restricted land to—

24 ‘‘(A) an Indian lineal descendant of the

25 original allottee; or
42

41

•S 550 IS

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

2 Indian tribe that exercises jurisdiction over

3 such an interest, unless the code provides for—

4 ‘‘(i) the renouncing of interests to eli5 gible devisees in accordance with the code;

6 ‘‘(ii) the opportunity for a devisee who

7 is the spouse or lineal descendant of a tes8 tator to reserve a life estate; and

9 ‘‘(iii) payment of fair market value in

10 the manner prescribed under subsection

11 (c)(2).’’; and

12 (B) in subsection (c)—

13 (i) in paragraph (1)—

14 (I) by striking the paragraph

15 heading and inserting the following:

16 ‘‘(1) AUTHORITY.—

17 ‘‘(A) IN GENERAL.—’’;

18 (II) in the first sentence of sub19 paragraph (A) (as designated by

20 clause (i)), by striking ‘‘section

21 207(a)(6)(A) of this title’’ and insert22 ing ‘‘section 207(a)(2)(A)(ii),

23 207(a)(2)(C), or 207(a)(3)’’; and

24 (III) by striking the last sentence

25 and inserting the following:
43

42

•S 550 IS

1 ‘‘(B) TRANSFER.—The Secretary shall

2 transfer payments received under subparagraph

3 (A) to any person or persons who would have

4 received an interest in land if the interest had

5 not been acquired by the Indian tribe in accord6 ance with this paragraph.’’; and

7 (ii) in paragraph (2)—

8 (I) in subparagraph (A)—

9 (aa) by striking the subpara10 graph heading and all that fol11 lows through ‘‘Paragraph (1)

12 shall apply’’ and inserting the

13 following:

14 ‘‘(A) NONAPPLICABILITY TO CERTAIN IN15 TERESTS.—

16 ‘‘(i) IN GENERAL.—Paragraph (1)

17 shall not apply’’;

18 (bb) in clause (i) (as des19 ignated by item (a)), by striking

20 ‘‘if, while’’ and inserting the fol21 lowing: ‘‘if—

22 ‘‘(I) while’’;

23 (cc) by striking the period at

24 the end and inserting ‘‘; or’’; and
44

43

•S 550 IS

1 (dd) by adding at the end

2 the following:

3 ‘‘(II)(aa) the interest is part of a

4 family farm that is devised to a mem5 ber of the family of the decedent; and

6 ‘‘(bb) the devisee agrees that the

7 Indian tribe that exercises jurisdiction

8 over the land will have the oppor9 tunity to acquire the interest for fair

10 market value if the interest is offered

11 for sale to an entity that is not a

12 member of the family of the owner of

13 the land.

14 ‘‘(ii) RECORDING OF INTEREST.—On

15 request by an Indian tribe described in

16 clause (i)(II)(bb), a restriction relating to

17 the acquisition by the Indian tribe of an

18 interest in a family farm involved shall be

19 recorded as part of the deed relating to the

20 interest involved.

21 ‘‘(iii) MORTGAGE AND FORE22 CLOSURE.—Nothing in clause (i)(II) pre23 vents or limits the ability of an owner of

24 land to which that clause applies to mort25 gage the land or limit the right of the en-
45

44

•S 550 IS

1 tity holding such a mortgage to foreclose

2 or otherwise enforce such a mortgage

3 agreement in accordance with applicable

4 law.

5 ‘‘(iv) DEFINITION OF MEMBER OF

6 THE FAMILY.—In this paragraph, the term

7 ‘member of the family’, with respect to a

8 decedent or landowner, means—

9 ‘‘(I) a lineal descendant of a de10 cedent or landowner;

11 ‘‘(II) a lineal descendant of the

12 grandparent of a decedent or land13 owner;

14 ‘‘(III) the spouse of a descendant

15 or landowner described in subclause

16 (I) or (II); and

17 ‘‘(IV) the spouse of a decedent or

18 landowner.’’; and

19 (II) in subparagraph (B), by

20 striking ‘‘subparagraph (A)’’ and all

21 that follows through ‘‘207(a)(6)(B) of

22 this title’’ and inserting ‘‘paragraph

23 (1)’’;

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

25 (A) in subsection (c)—
46

45

•S 550 IS

1 (i) by redesignating paragraph (3) as

2 paragraph (4); and

3 (ii) by inserting after paragraph (2)

4 the following:

5 ‘‘(3) ALIENATION OF JOINT TENANCY INTER6 ESTS.—

7 ‘‘(A) IN GENERAL.—With respect to any

8 interest held in joint tenancy in accordance with

9 this subsection—

10 ‘‘(i) nothing in this subsection alters

11 the ability of an owner of such an interest

12 to convey a life estate in the undivided

13 joint tenancy interest of the owner; and

14 ‘‘(ii) only the last remaining owner of

15 such an interest may devise or convey

16 more than a life estate in the interest.

17 ‘‘(B) APPLICATION OF PROVISION.—This

18 paragraph shall not apply—

19 ‘‘(i) to any conveyance, sale, or trans20 fer that is part of an agreement referred to

21 in subsection (e); or

22 ‘‘(ii) to a co-owner of a joint tenancy

23 interest.’’; and
47

46

•S 550 IS

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

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

3 (b)’’;

4 (4) in section 213 (25 U.S.C. 2212)—

5 (A) in subsection (a)(2), by striking ‘‘(A)

6 IN GENERAL.—’’ and all that follows through

7 ‘‘the Secretary shall submit’’ and inserting

8 ‘‘The Secretary shall submit’’;

9 (B) in subsection (b), by striking para10 graph (4) and inserting the following:

11 ‘‘(4) shall minimize the administrative costs as12 sociated with the land acquisition program through

13 the use of policies and procedures designed to ac14 commodate the voluntary sale of interests under the

15 pilot program under this section, notwithstanding

16 the existence of any otherwise applicable policy, pro17 cedure, or regulation, through the elimination of

18 duplicate—

19 ‘‘(A) conveyance documents;

20 ‘‘(B) administrative proceedings; and

21 ‘‘(C) transactions.’’; and

22 (C) in subsection (c)—

23 (i) in paragraph (1)—

24 (I) in subparagraph (A), by strik25 ing ‘‘landowner upon payment’’ and
48

47

•S 550 IS

1 all that follows and inserting the fol2 lowing: ‘‘landowner—

3 ‘‘(i) on payment by the Indian land4 owner of the amount paid for the interest

5 by the Secretary; or

6 ‘‘(ii) if—

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

8 subparagraph provides assurances

9 that the purchase price will be paid by

10 pledging revenue from any source, in11 cluding trust resources; and

12 ‘‘(II) the Secretary determines

13 that the purchase price will be paid in

14 a timely and efficient manner.’’; and

15 (II) in subparagraph (B), by in16 serting before the period at the end

17 the following: ‘‘unless the interest is

18 subject to a foreclosure of a mortgage

19 in accordance with the Act of March

20 29, 1956 (25 U.S.C. 483a)’’; and

21 (ii) in paragraph (3), by striking ‘‘10

22 percent of more of the undivided interests’’

23 and inserting ‘‘an undivided interest’’;

24 (5) in section 214 (25 U.S.C. 2213), by striking

25 subsection (b) and inserting the following:
49

48

•S 550 IS

1 ‘‘(b) APPLICATION OF REVENUE FROM ACQUIRED

2 INTERESTS TO LAND CONSOLIDATION PILOT PRO3 GRAM.—

4 ‘‘(1) IN GENERAL.—The Secretary shall have a

5 lien on any revenue accruing to an interest described

6 in subsection (a) until the Secretary provides for the

7 removal of the lien under paragraph (3) or (4).

8 ‘‘(2) REQUIREMENTS.—

9 ‘‘(A) IN GENERAL.—Until the Secretary

10 removes a lien from an interest in land under

11 paragraph (1)—

12 ‘‘(i) any lease, resource sale contract,

13 right-of-way, or other document evidencing

14 a transaction affecting the interest shall

15 contain a clause providing that all revenue

16 derived from the interest shall be paid to

17 the Secretary; and

18 ‘‘(ii) any revenue derived from any in19 terest acquired by the Secretary in accord20 ance with section 213 shall be deposited in

21 the fund created under section 216.

22 ‘‘(B) APPROVAL OF TRANSACTIONS.—Not23 withstanding section 16 of the Act of June 18,

24 1934 (commonly known as the ‘Indian Reorga25 nization Act’) (25 U.S.C. 476), or any other
50

49

•S 550 IS

1 provision of law, until the Secretary removes a

2 lien from an interest in land under paragraph

3 (1), the Secretary may approve a transaction

4 covered under this section on behalf of an In5 dian tribe.

6 ‘‘(3) REMOVAL OF LIEN AFTER FINDINGS.—

7 The Secretary may remove a lien referred to in

8 paragraph (1) if the Secretary makes a finding

9 that—

10 ‘‘(A) the costs of administering the interest

11 from which revenue accrues under the lien will

12 equal or exceed the projected revenues for the

13 parcel of land involved;

14 ‘‘(B) in the discretion of the Secretary, it

15 will take an unreasonable period of time for the

16 parcel of land to generate revenue that equals

17 the purchase price paid for the interest; or

18 ‘‘(C) a subsequent decrease in the value of

19 land or commodities associated with the parcel

20 of land make it likely that the interest will be

21 unable to generate revenue that equals the pur22 chase price paid for the interest in a reasonable

23 time.

24 ‘‘(4) OTHER REMOVAL OF LIEN.—In accord25 ance with regulations to be promulgated by the Sec-
51

50

•S 550 IS

1 retary, and in consultation with tribal governments

2 and other entities described in section 213(b)(3), the

3 Secretary shall periodically remove liens referred to

4 in paragraph (1) from interests in land acquired by

5 the Secretary.’’;

6 (6) in section 216 (25 U.S.C. 2215)—

7 (A) in subsection (a), by striking para8 graph (2) and inserting the following:

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

10 permit, or sale of resources from interests acquired

11 under section 213 or paid by Indian landowners

12 under section 213.’’; and

13 (B) in subsection (b)—

14 (i) in paragraph (1)—

15 (I) in the matter preceding sub16 paragraph (A), by striking ‘‘Subject

17 to paragraph (2), all’’ and inserting

18 ‘‘All’’;

19 (II) in subparagraph (A), by

20 striking ‘‘and’’ at the end;

21 (III) in subparagraph (B), by

22 striking the period at the end and in23 serting ‘‘; and’’; and

24 (IV) by adding at the end the fol25 lowing:
52

51

•S 550 IS

1 ‘‘(C) be used to acquire undivided interests

2 on the reservation from which the income was

3 derived.’’; and

4 (ii) by striking paragraph (2) and in5 serting the following:

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

7 the revenue deposited in the Acquisition Fund under

8 paragraph (1) to acquire some or all of the undi9 vided interests in any parcels of land in accordance

10 with section 205.’’;

11 (7) in section 217 (25 U.S.C. 2216)—

12 (A) in subsection (e)(3), by striking ‘‘pro13 spective applicants for the leasing, use, or con14 solidation of’’ and insert ‘‘any person that is

15 leasing, using, or consolidating, or is applying

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

17 (B) by striking subsection (f) and inserting

18 the following:

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

20 ‘‘(1) IN GENERAL.—Except as provided in para21 graph (2), before the Secretary approves an applica22 tion to terminate the trust status or remove the re23 strictions on alienation from a parcel of trust or re24 stricted land, the Indian tribe that exercises jurisdic25 tion over the parcel shall have the opportunity—
53

52

•S 550 IS

1 ‘‘(A) to match any offer contained in the

2 application; or

3 ‘‘(B) in a case in which there is no pur4 chase price offered, to acquire the interest in

5 the parcel by paying the fair market value of

6 the interest.

7 ‘‘(2) EXCEPTION FOR FAMILY FARMS.—

8 ‘‘(A) IN GENERAL.—Paragraph (1) shall

9 not apply to a parcel of trust or restricted land

10 that is part of a family farm that is conveyed

11 to a member of the family of a landowner (as

12 defined in section 206(c)(2)(A)(iv)) if—

13 ‘‘(i) the interest is offered for sale to

14 an entity that is not a member of the fam15 ily of the landowner; and

16 ‘‘(ii) the Indian tribe that exercises

17 jurisdiction over the land is afforded the

18 opportunity to purchase the interest.

19 ‘‘(B) APPLICABILITY.—Section

20 206(c)(2)(A) shall apply with respect to the re21 cording and mortgaging of any trust or re22 stricted land referred to in subparagraph (A).’’;

23 and
54

53

•S 550 IS

1 (8) in section 219(b)(1)(A) (25 U.S.C.

2 2218(b)(1)(A)), by striking ‘‘100’’ and inserting

3 ‘‘90’’.

4 (b) DEFINITION.—

5 (1) IN GENERAL.—Section 202 of the Indian

6 Land Consolidation Act (25 U.S.C. 2201) is amend7 ed by striking paragraph (2) and inserting the fol8 lowing:

9 ‘‘(2) INDIAN.—

10 ‘‘(A) IN GENERAL.—The term ‘Indian’

11 means—

12 ‘‘(i) any person that is a member of

13 any Indian tribe or is eligible to become a

14 member of any Indian tribe;

15 ‘‘(ii) subject to subparagraph (B), any

16 person that has been found to meet the

17 definition of ‘Indian’ under any Federal

18 law; and

19 ‘‘(iii) with respect to the ownership,

20 devise, or descent of trust or restricted

21 land in the State of California, any person

22 that meets the definition of ‘Indians of

23 California’ contained in the first section of

24 the Act of May 18, 1928 (25 U.S.C. 651),

25 until otherwise provided by Congress in ac-
55

54

•S 550 IS

1 cordance with section 809(b) of the Indian

2 Health Care Improvement Act (25 U.S.C.

3 1679(b)).

4 ‘‘(B) EXCLUSIONS.—The term ‘Indian’

5 does not include any person excluded from a

6 definition described in subparagraph (A)(ii) by

7 a regulation promulgated by the Secretary in a

8 case in which the Secretary determines that the

9 definition is not consistent with the purposes of

10 this Act, unless the definition described in sub11 paragraph (A)(ii) is contained in a law relating

12 to—

13 ‘‘(i) agriculture;

14 ‘‘(ii) cultural resources;

15 ‘‘(iii) economic development;

16 ‘‘(iv) grazing;

17 ‘‘(v) housing;

18 ‘‘(vi) Indian schools;

19 ‘‘(vii) natural resources;

20 ‘‘(viii) any other program with bene21 fits intended to run to Indian landowners;

22 or

23 ‘‘(ix) any land-related program that

24 takes effect after the date of enactment of

25 this subparagraph.’’.
56

55

•S 550 IS

1 (2) APPLICABILITY.—Any exclusion referred to

2 in the amendment made by paragraph (1) shall

3 apply only to a decedent who dies after the date on

4 which the Secretary of the Interior promulgates a

5 regulation providing for the exclusion.

6 (c) MORTGAGES AND DEEDS OF TRUST.—The Act

7 of March 29, 1956 (25 U.S.C. 483a), is amended in the

8 first sentence of subsection (a) by inserting after ‘‘any

9 land’’ the following: ‘‘(including land owned by any person

10 in passive trust status in accordance with section 207A

11 of the Indian Land Consolidation Act)’’.

12 (d) ISSUANCE OF PATENTS.—Section 5 of the Act of

13 February 8, 1887 (25 U.S.C. 348), is amended by striking

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

15 That the rules of intestate succession under the Indian

16 Land Consolidation Act (25 U.S.C. 2201 et seq.) (includ17 ing a tribal probate code approved under that Act or regu18 lations promulgated under that Act) shall apply to that

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

20 (e) TRANSFERS OF RESTRICTED INDIAN LAND.—

21 Section 4 of the Act of June 18, 1934 (25 U.S.C. 464),

22 is amended in the first proviso by striking ‘‘, in accordance

23 with’’ and all that follows through the colon and inserting

24 ‘‘in accordance with the Indian Land Consolidation Act

25 (25 U.S.C. 2201 et seq.) (including a tribal probate code
57

56

•S 550 IS

1 approved under that Act or regulations promulgated under

2 that Act):’’.

3 SEC. 6. INHERITANCE OF CERTAIN TRUST OR RESTRICTED

4 LAND.

5 (a) IN GENERAL.—Section 5 of Public Law 98–513

6 (98 Stat. 2413) is amended to read as follows:

7 ‘‘SEC. 5. INHERITANCE OF CERTAIN TRUST OR RESTRICTED

8 LAND.

9 ‘‘(a) IN GENERAL.—Notwithstanding any other pro10 vision of this Act—

11 ‘‘(1) the owner of an interest in trust or re12 stricted land within the reservation may not devise

13 an interest (including a life estate under section 4)

14 in the land that is less than 2.5 acres to more than

15 1 tribal member unless each tribal member already

16 holds an interest in that land; and

17 ‘‘(2) any interest in trust or restricted land

18 within the reservation that is less than 2.5 acres

19 that would otherwise pass by intestate succession

20 (including a life estate in the land under section 4),

21 or that is devised to more than 1 tribal member that

22 is not described in paragraph (1), shall revert to the

23 Indian tribe, to be held in the name of the United

24 States in trust for the Indian tribe.

25 ‘‘(b) NOTICE.—
58

57

•S 550 IS

1 ‘‘(1) IN GENERAL.—Not later than 180 days

2 after the date of enactment of the Indian Probate

3 Reform Act of 2003, the Secretary shall provide no4 tice to owners of trust or restricted land within the

5 Lake Traverse Reservation of the provisions of this

6 section by—

7 ‘‘(A) direct mail;

8 ‘‘(B) publication in the Federal Register;

9 or

10 ‘‘(C) publication in local newspapers.

11 ‘‘(2) CERTIFICATION.—After providing notice

12 under paragraph (1), the Secretary shall—

13 ‘‘(A) certify that the requirements of this

14 subsection have been met; and

15 ‘‘(B) shall publish notice of that certifi16 cation in the Federal Register.’’.

17 (b) APPLICABILITY.—This section and the amend18 ment made by this section shall not apply with respect

19 to the estate of any person who dies before the date that

20 is 1 year after the date on which the Secretary makes the

21 required certification under section 5(b) of Public Law

22 98–513 (98 Stat. 2413) (as amended by subsection (a)).
59

58

•S 550 IS

1 SEC. 7. EFFECTIVE DATE.

2 The amendments made by this Act shall not apply

3 to the estate of an individual who dies before the later

4 of—

5 (1) the date that is 1 year after the date of en6 actment of this Act; or

7 (2) the date specified in section 207(g)(5) of

8 the Indian Land Consolidation Act (25 U.S.C.

9 2206(g)(5)).

Æ

The CHAIRMAN. As an aside, the Capitol Police have also notified

us on two or three occasions that they have had complaints from

some of the Senators who have offices right across the hall. When

we leave today, please keep the noise down in the hall.
60

I will start with our first witness today, Wayne Nordwall, director of the Western Region for Bureau of Indian Affairs. Please come

up and start, please.

STATEMENT OF WAYNE NORDWALL, DIRECTOR, WESTERN REGION FOR BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF

THE INTERIOR, WASHINGTON, DC

Mr. NORDWALL. I am Wayne Nordwall, director of the Western

Region for the Bureau of Indian Affairs [BIA].

Mr. Chairman, I would like to thank the committee for its continued interest in this matter. This is one of the most critical issues

that faces the Department at this point. It also critically affects the

lives and property of thousands of Indians throughout the country.

We are very grateful that the committee has continued to work on

this issue.

One of the things that we had hoped to do when we met in May

was to have a set of recommendations ready to submit before the

next hearing, but unfortunately because of the Bureau reorganization, Trust reform projects, and trying to comply with some of the

Cobell issues, we have not done that. But we have worked with the

committee, the Indian Land Working Group, and other people. I

think we are moving forward on this thing.

We cannot emphasize how critical this issue really is. We have

all talked for years about the exponential growth of fractionation.

I think that is starting to begin to rear its ugly head more and

more on a weekly and monthly basis. I do not have the graph with

me, and I know you have seen it before, where if you start in 1887

and you go up to 1920, 1930, 1940, and 1950, this line showing the

increase of fractionation is relatively flat until you get to the

1960’s, 1970’s, 1980’s, and 1990’s where it goes almost vertical.

We are at the point now where if we cannot correct this problem

within a decade or less, it may overwhelm us and we will not be

able to do anything with it. Our current computer systems are at

their maximum limit. At this point, we are having to migrate our

title data from the existing LRIS system over to TAAMs title. We

are trying to put that in nationwide.

The system that pays out many of the allottees is called IRMS.

That system is literally on the verge of collapse. It is an old mechanical system that was developed in the 1960’s. The software is

no longer supported. We have to develop another system. Of course,

this whole fractionation issue is literally about ready to crush

many of those systems. We have to do something relatively soon.

In our testimony we have a couple of examples of the problems

that fractionation causes. I am just going to go through a couple

of others just because I thought they were timely at this point to

show this exponential growth.

In 1992, the General Accounting Office [GAO] did a profile of

land ownership on 12 highly fractionated reservations. One of the

findings that they found in here was that there were 80,000 discrete owners on this 12 reservations, yet there were over 1 million

fractional interests involved. I think many times people do not understand how there can be so many fractions when there is such

a small number of Indians. For instance, the reason this happens

is one person may inherit a one two-thousandths interests from his
61

uncle, and then in a separate probate a one five-hundredths interests from an aunt. Then if the surface and the subsurface are split,

then it causes even more problems with fractionation.

We did not have the exact software that they used in order to

compile these numbers. We attempted to update this report about

6 months ago as part of the pilot project to see how we could make

that a national program. We could not get a full 10-year span because of the court injunction. Some of our computer systems are

still off-line. What we found was that the problem has increased on

those reservations from 1992–2000, it grew by 40 percent on those

12 reservations. We have 1,400,000 fractional interests on those 12

reservations.

In 1992 we also had a probate study where we went out and

tried to analyze the condition of the probate program. At that point

we found that there were approximately 6,000 cases that were

backlogged. We just did that same study again. Now there are over

18,000 cases. As you can see, this exponential growth is starting

to grow.

I called the Rocky Mountain region before I left Phoenix and

asked them if they could send me an example of some of the problems they are having. They have a Turtle Mountain public domain

allotment which is located off reservation. It is 80 acres. It is worth

about $10,000. It is leased every year for $240. Right now there are

60 pending probates on that allotment. The average cost of a probate is $3,000. That is $180,000 worth of probate on that one alone.

There are 11 dower interest holders, six life estates, 35 interests

of passed into fee. Once they go into fee we lose control. We have

no idea who the actual owners are at this point. There are 558

trust interests. Even if we just figure the average cost of $150 per

account to maintain those, that is $83,000 just to maintain the accounts on those 558 interests. When you add in the probate, you

can see the administrative costs far exceed the value of the land.

This is becoming a more frequent problem all through Indian country.

We are still off the internet. I think sometimes people tend to

forget that. They send stuff and it bounces back. We did not get

the revisions to S. 550 until last night. I have not had a chance

to look at them. As soon as I get back we will submit detailed comments on S. 550.

The CHAIRMAN. I would appreciate that.

Mr. NORDWALL. One of the things that we were concerned about

in the original S. 550 is that it dealt solely with probate. At this

point there are issues that have arisen in the implication of the

2000 amendments that require more than just addressing probate.

I think one of the things that was in the original bill was a provision that said at the end of 3 years the Secretary of the Interior

is supposed to submit amendments to correct any problems that

have been identified. That was taken out because everybody figured the Secretary had that authority anyway. It has been three

years. There are several things that the Department is focusing on.

I will just go through some of the ideas that we have discussed.

We have a draft that we have been working with the committee

members and with the Indian Land Working Group. We have

looked at the California Indian Legal Services draft. Everybody has
62

spent time working on this. We do have a draft floating around

within the Department with some ideas. I will just go through

some of the ideas that are in there. Hopefully, once we look at S.

550, rather than perhaps submit a Departmental revision, we will

just modify S. 550. It seems that many of the things that we were

concerned about are now addressed in this bill.

The CHAIRMAN. We will address any further comments you have

when you give us those recommendations.

Mr. NORDWALL. Fine. The first thing is that we agree that there

needs to be a definition of highly fractionated land. At this point,

because of the problems, we need to address them differently than

some of the ones that are less fractionated. We have to expand the

Secretary’s partition authority. At present, the existing statute authorizes the Secretary to partition only if it is in the best interest

of the Indians. That has always been construed to mean economic

best interests.

In other words, if you have an 80-acre grazing allotment in

North Dakota, and there are 80 owners, you cannot divide it and

give each one an acre because that acre has no separate utility.

There is no way in or out. It has no value.

What we want to do is to allow partition-in-kind. If someone has

a home site, you can partition it out and try to deal with that and

create a usable unit for each person and not be focused on finance.

We also may want to consider is partition by sale. If you wind

up with an allotment with 400 owners, and 30 of them decide they

just want to sell and get out of it, right now it is almost impossible

to do that. We want to set up a procedure to where they can, in

effect, go in and petition the Secretary and ultimately may be have

a review by the Courts in order to sell these things to either coowners, third parties, or to the tribes.

The other thing which was in S. 550, and is critical, is to create

a uniform Federal probate code. The existing reliance on 50 States

is just not working, especially as these things get more complex,

and especially as more people wind up inheriting land on different

reservations in different States. We have more and more circumstances where that happens.

Under our proposal, one of the big criticisms of the old provisions

is that it had very limited ability for people to devise property to

their wives and children. The 2000 amendments have the same

problem. They limit who you can will your property to. That ended

up sending a shock wave through Indian country with a lot of people coming in wanting to convert their land to fee so they could will

their property to their non-Indian spouses and children.

What we have proposed is that in this probate code that there

be very liberal provisions for people who write wills. In teste is a

different issue. If somebody does not write a will, then we think

there has to be a limited class. We just cannot have it open-ended

so that it keeps fractionating indefinitely.

One of the other things that we think is critical is that we have

to have the ability to purchase these fractional interests during the

probate process. There are four or five special acts that relate to

particular tribes, where during the probate process the tribe can go

in and in lieu of that land going to that owner, they can pony up

the money and take that land themselves. We think the Secretary
63

and the tribe should both have that authority. Again, the details

of how that would work are things we still need to work out.

Another critical issue is to come up with an expedited probate

process, particularly on small money estates. Right now we have

hundreds and hundreds of accounts that are less than one dollar,

and yet we still wind up having to probate them through the normal probate process which costs thousands of dollars. We want to

come up with some sort of an in-house administrative procedure to

deal with these highly fractionated small estates and not have a

full-blown probate hearing.

One of the other issues that was discussed at length in the 2000

amendments and in the original act in 1984 was giving the tribes

the authority to probate these estates in tribal court. They currently do not do that. They can draft a probate code but it has to

be probated by the Secretary. Again, one of the issues that we are

considering is allowing the tribes to probate in tribal court. One of

the big problems again, of course, is: What do you do in those circumstances where a person owns land on multiple reservations?

Who has primary jurisdiction? Will there be a split? We do not

want people to have to go through multiple probates.

We want to have the Secretary to perhaps have greater authority

under the land acquisition program. At present, whenever we purchase land under the acquisition program, it automatically goes to

the tribe. In addition to the fractionation, we have checkerboarding

where we have fee land, we have trust land, and we have tribal

land. We think that perhaps we should be able to sit down with

the tribes, help them work on a consolidation plan, and for those

interests that are within that consolidation area, to convey those

to the tribes as we do under the existing statute, but if they are

outside, sell them to co-owners or something else to consolidate

those interests.

Finally is the whole issue of whereabouts unknown and unclaimed property. Again, we have thousands of accounts with just

pennies in them that we cannot locate the owner. Every State in

the Union has an unclaimed property statute where if there is no

activity in that account for a certain amount of time, it goes into

a fund. You post a notice in a local newspaper. Every year you see

these things come out. Then after a certain number of years it just

goes to the State fund. In this case, we propose it go into the land

acquisition fund.

The bottomline is that we have made much progress. The committee has put much work into this effort. We appreciate that.

Again, we want to emphasize how critical it is that we try to come

up with a solution. One of the things that we are concerned about

and we are working with everyone to try to fix as much as possible

is to water the bill down, to be blunt.

The history of this initiative since the 1920’s and 1930’s is that

every time Congress attempts to put real teeth in the bill, there are

complaints in Indian country. Then it gets watered down to the

point where it is diluted and has no effect. I do not think we have

another opportunity to fix this problem. Given the fractionation, if

we do not fix it at this point, within 8 or 10 years, this is going

to become de facto communal land. On any given day, no one is
64

going to know who owns the property. There will be hundreds of

estates in probate on any given day. We have to fix it.

There will be some hard decisions that have to be made. Everybody will not be happy. Any time you draw up a set of standards,

draw a line, or set criteria, somebody is on the wrong side. We realize that. What we think we have to do is that we have to focus on

the 99 percent of the problem. We may not be able to address the

problems of the 1 percent. But it has to be fixed. Otherwise, the

system is just going to collapse.

I will be glad to answer any questions, Mr. Chairman. I would

like to submit my written testimony for the record.

The CHAIRMAN. Without objection, your testimony will be placed

in the record in its entirety.

[Prepared statement of Wayne Nordwall appears in appendix.]

The CHAIRMAN. Thank you, Wayne. If you would get back to the

committee as soon as you have recommendations for us, I would

certainly appreciate it.

Mr. NORDWALL. I have to go to Nashville to work on some Cobell

issues, but we will fax a copy of the bill back to our Committee and

start getting some comments for you.

The CHAIRMAN. Thank you.

I will submit questions to you in writing.

We will now go to the next panel which consist of Fred Matt,

chairman, Confederated Salish and Kootenai Tribes, Pablo, MT;

Maurice Lyons, chairman, Morongo Band of Mission Indians, Banning, CA; Lisa Oshiro, directing attorney, California Indian Legal

Services, Washington, DC; and Austin Nunez, chairman, Indian

Land Working Group, Albuquerque, NM.

As I told Mr. Nordwall, we have a very tight agenda this morning. I know that I am going to have to leave. If another Senator

is here, we will let him go ahead and chair the hearing. If we do

not finish before I have to leave, I am going to ask staff to finish

chairing the hearing.

Let us start in the order that I mentioned your name.

Fred, go ahead.

STATEMENT OF FRED MATT, CHAIRMAN, CONFEDERATED

SALISH AND KOOTENAI TRIBES, PABLO, MT

Mr. MATT. Chairman Campbell, with what you have said, I will

be as brief as I can. My name is Fred Matt. I am the chairman of

the Confederated Salish and Kootenai Tribes of the Flathead Nation. On behalf of our tribal council, I am pleased to provide testimony regarding the substitute bill for S. 550 entitled, ‘‘American

Indian Probate Reform Act of 2003.’’

I will summarize the most important points of my testimony. Before I get into my comments, I would like to say, Chairman Campbell, that I ran into a good friend of yours a couple of days ago,

Doug Allard. I would not be a very popular person if I did not say

hi and send his regards. I saw him the other day at one of the most

popular gathering places that we have in Western Montana,

WalMart.

The CHAIRMAN. Tell him hello for me. When I had a life, I was

a jeweler and I made his wedding rings. He might have told you

that.
65

Mr. MATT. He just went through cancer surgery. He is recovering

very well. He looked very good. I would like to send his regards.

The CHAIRMAN. Thank you.

Mr. MATT. We just hosted the 13th annual Indian Land Working

Group Conference in Flathead. We are pleased that David Mullin

was there from your staff on behalf of the committee. The conference was a great success. The tribes appreciate the efforts this

committee and the staff in attempting to correct the fractionated

interest problems of Indian land ownership, while also endeavoring

to retain the trust status of property on reservations.

We support the objectives of the Indian Land Consolidation Act

Amendments of 2000, ILCA, and recognize that some amendments

are necessary to clarify this complex legislation. Foremost, we encourage the committee to seek enactment of these amendments

prior to the Secretary’s certification of notices as required by ILCA

which triggers the 1-year effective date.

The Flathead Reservation was created in 1855 by the Treaty of

Hellgate. CSKT ceded over 22 million acres of tribal homelands

and retained 1.3 million acres located in Northwestern Montana.

We have always been, and remain, a part of that land. Initially we

were successful opposing the General Allotment Act of 1887. However, competition for the land from outside business and political

interests forced the passage of the Flathead Allotment Act in 1904.

Pursuant to that act and others, a total of 3,380 allotments were

made to individual Indians. More devastating to their tribal selfgovernance and the economic base was the opening of the reservation to homesteading. The allotment era reduced tribal government

ownership to approximately 30 percent of the total reservation.

In 1934, Congress enacted the Indian Reorganization Act for various reasons including the end of the devastation caused by the allotment era. We were the first tribe in the United States to organize under IRA, and one of the first tribes to begin to reacquire lost

lands. We have come a long way since the 1930’s, including being

one of the first self-governance tribes. We have now compacted all

land management functions, including land titles and records. We

have also reacquired land on the Flathead Reservation to the point

where nearly 70 percent of the lands are back in the hands of the

tribe. We have provided land status maps with our written testimony to show what this has done to our reservation.

ILCA assists our goals for land restoration. However, currently

the legislation, although not certified and, therefore, not in effect

right now, is having the unintended consequences of pushing Indian land owners to request fee patents for their trust property. Indian land owners are fearful that they may not be able to leave

their trust property to family members.

In my case, I own seven acres and a home that is in trust. My

wife is a non-Indian. Some of my children are unenrolled. Some of

them are enrolled members. It is a long story. I will not share that

with you now.

The CHAIRMAN. That is okay. That is becoming more of a common story in Indian country everywhere.

Mr. MATT. If Section 207 of ILCA was effective in my situation,

my wife and my unenrolled children would inherit the life estate
66

and my enrolled child would inherit the land and the title to the

home. This is not my desired outcome.

The legislation needs to allow for descent of property to rightful

heirs by will. In addition, if the land should acquire fee status due

to inheritance by a non-Indian, I would first support the tribal option to keep the property in trust. It is the same option tribes exercise when a land owner now requests a fee patent by an application. Furthermore, if the Indian land owner does not make a will,

the stricter rules of inheritance should apply. However, Indian land

owners need the ability to estate plan.

Again, we need to balance our membership’s needs with our selfgovernance. S. 550 attempts to provide that balance. The potential

of Indian land owners on our Reservation who feel forced to prematurely transfer their interest from trust to fee status, poses a

threat to our self-governance and tribal jurisdiction.

Next, we need to know the definition of Indian. This legislation

is an opportunity to clarify the definition. We believe that it would

be best to use the definition contained in the Indian Health Care

Improvement Act. However, if S. 550 should broaden the definition

of Indian, the legislation should also recognize the tribe’s right to

restrict the inheritance through an enactment of the tribal probate

code.

S. 550 is an opportunity to establish the framework for probate

reform and still allow tribes to enact a probate code of their own.

Last, CSKT needs access to acquisition funds for consolidating

fractionated interests. The BIA has interpreted the pilot acquisition

program, as authorized by Congress, not to apply on reservations

where programs are operated by the tribes. This discrimination

against tribes who utilize the Indian self-determination makes no

sense. CSKT could eliminate nearly 3,000 undivided land interests

with such funding. CSKT has identified 200 tracts of lands with 50

percent tribal ownership. In May 2003, CSKT submitted a proposal

to the Department requesting funding in the amount of $6.5 million to complete such projects. CSKT suggests that the Committee

either amend the land acquisition program so that all tribes can

participate or allocate funding for tribes operating under the SelfDetermination Act.

In addition, when ILCA, is implemented, we will also need funding for training and for estate planning if the amendments are

going to be successful. Education about fractionation is probably a

key factor for our membership. Since our membership received the

BIA notice to Indian land owners in August 2001, our tribal council

has committed to keeping our membership informed about this

issue.

There are numerous items in this legislation. CSKT has addressed these in our prepared written testimony. We believe that

through the combined efforts of land acquisition, probate reform,

and estate planning education, we will eventually manage land

fractionation on the Flathead Reservation.

We look forward to working on the technical issues surrounding

S. 550 and hope to provide additional comments in the future.

Thank you again for allowing me to testify. I would like to submit

my written testimony for the record.
67

The CHAIRMAN. Without objection, your testimony will be placed

in the record in its entirety.

[Prepared statement of Fred Matt appears in appendix.]

The CHAIRMAN. Thank you, Fred. What you have talked about of

leaving land to your children and descendants that they might not

be enrolled is an important point. I do not know if you have read

the new version of S. 550. I understand there is a section that

hopefully will take care of that problem by allowing Indian people

to leave the land to their direct descendant with the tribal first

right-of-purchase if that descendant decides to sell it. We are floating that idea with tribes. That might be the compromise that works

for you.

We will now go to Chairman Lyons. Thank you for being here.

STATEMENT OF MAURICE LYONS, CHAIRMAN, MORONGO

BAND OF MISSION INDIANS, BANNING, CA

Mr. LYONS. Thank you, Chairman Campbell, and Vice Chairman

Inouye for inviting Morongo to testify today. Our position is spelled

out in our written statement. In addition, I would like to make a

few points.

Last year Chairman Campbell asked the Department of the Interior to delay implementation of the amendments to the Indian

Land Consolidation Act. This was to allow Congressional review of

concerns and issues that have arisen in Indian Country. To date,

the Department of the Interior appears to have honored your request and we are thankful of their willingness to do so.

The proposed amendments will protect our members’ rights of inheritance. Because of the way the 2000 act now defines Indian, the

Morongo Band is faced with having to substantially reverse or revise our membership criteria in order to make possible for some of

our members to pass the interest and Trust allotments to their

heirs, to their children.

Arbitrarily revising our membership criteria will only cause further unfairness, divisiveness, and confusion. We should not be

forced to amend our membership criteria in order to protect the

right of our children to inherit family lands. The amendments to

S. 550 provide a solution to the problem we have in California.

I was reading a book that I think fits right in with what we are

doing here today. It was about George Washington and the Seneca

Indian chiefs. They were talking about the land that they had at

that time. George Washington was talking to Chief Cornplanter,

and Chief Cornplanter told him: ‘‘The land we live on, our fathers

received from God. They transmitted it to us for our children. We

cannot part with it.’’ President Washington told him: ‘‘In keeping

with the spirit, the Government will never consent to your being

defrauded, but will protect all your just rights.’’

That is something.

Thank you, Mr. Chairman, for hearing my testimony today. Your

efforts today will help the promise George Washington originally

made to America’s first people. I would like to submit my written

testimony for the record.

The CHAIRMAN. Without objection, your testimony will be placed

in the record in its entirety.

[Prepared statement of Maurice Lyons appears in appendix.]
68

The CHAIRMAN. Thank you.

George Washington may have had very good intentions toward

Chief Cornplanter, too. It is too bad that the people who followed

him did not have as good intentions, very frankly.

Ms. Oshiro? Where is your office, by the way? Sacramento?

Ms. OSHIRO. California Indian Legal Services has offices throughout California. We also have an office here in Washington, DC,

where I work.

The CHAIRMAN. I see. Thank you.

STATEMENT OF LISA OSHIRO, DIRECTING ATTORNEY,

CALIFORNIA INDIAN LEGAL SERVICES, WASHINGTON, DC

Ms. OSHIRO. Thank you, Chairman Campbell, for inviting California Indian Legal Services to testify before you on S. 550. We

come to you wearing various hats. First, California Indian Legal

Services represents tribes and individuals throughout the State of

California. One of our primary purposes is to protect the very limited and precious trust and restricted lands in California.

S. 550, as Chairman Lyons has said, includes some amendments

to the definition of Indian that are very critical. I want to point out

that there is a specific definition for California Indians that is very

important because of the status of some of our tribes that were terminated by acts of Congress and have not yet been restored. Congress has, through various acts, allotted lands on the public domain

and national forests that those members would like to continue to

pass on to their descendants. They need to be recognized as Indians, although they are not members of a federally recognized tribe.

The broader definitions under S. 550 are helpful all throughout Indian Country. We applaud your efforts in amending that.

I also come here wearing the hat of one of the participants on

the S. 550 Task Force. California Indian Legal Services came together with the National Congress of American Indians, the Indian

Land Working Group, and various tribal representatives last November in support of your bill, S. 1340, as we were trying to amend

that and get that passed. At that time, we were specifically addressing the definition of Indian.

When you introduced S. 550 in March, we brought those people

together, as well as additional advocates and representatives from

throughout Indian Country. We have a very long distribution list.

We have been one of the primary organizers of this informal S. 550

Task Force. We have been very appreciative of the participation of

representatives from the Department of the Interior, from your

staff, and from Indian tribes, Indian organizations, and Indian land

owner associations. We have come together to try to address this

very difficult and complex problem where we know that we had to

make some tough decisions.

As Wayne Nordwall was pointing out, we are not able to reach

consensus on everything. Not everyone can have their ideal bill.

But we have been engaged in many discussions and deliberations

about what we need to do to aggressively address this problem that

is pervasive throughout Indian country. It poses a problem to the

productive use of these lands, as our elders want to put these lands

that they have fought so long and hard to protect to productive use

for their current generation and for future generations.
69

We have been very happy to be participating with this informal

S. 550 Task Force to bring together the collective knowledge, experience, wisdom, resources, and vision of all of these groups. We

need a solution, and we need that solution now. We recognize the

problems that the Department of the Interior has in managing

these highly fractionated parcels. We are happy to really hear and

echo the various provisions that were expressed in Interior’s desire

for and support for highly fractionated lands, partition, the Uniform Probate Code, the ability for individuals to freely devise their

interests. It would also provide estate planning services.

That is where I switch to my next hat. In providing education

and estate planning services throughout Indian country, we are encouraging Interior to also consider utilizing the services of Indian

Legal Services throughout the country, which has long been recognized as the most effective and efficient model for the delivery of

quality legal services throughout Indian country. There are programs, such as in the State of Montana, that do not receive sufficient funding to provide this type of estate planning services. This

is another measure to address fractionation and promote consolidation in individual estate planning and family estate planning, to be

able to provide that education and legal services to our communities. It also provides the confidential setting as well as other protections of the attorney/client relationship.

Before closing, I would like to thank you for your bill and for the

commitment of your staff and for their availability, accessibility,

and their participation in all of our meetings and discussions. This

has been, as some people have pointed out, rather historic for all

of these different interests to come together and work collaboratively and make those hard decisions.

In conclusion, we look forward to continuing our work with you

in the coming days and weeks. There is an urgent need to pass this

bill, S. 550, before the 2000 amendments are put into effect. We are

doing this work because we must honor—and we would like to

honor—the elders and their ancestors who have fought so long and

hard to protect these precious lands so that they can rest with the

comfort and the assurance that they can pass these lands on to

their children and future generations, to continue to protect them,

as well as to consolidate them, and put them to productive use.

Thank you. I would like to submit my written testimony for the

record.

The CHAIRMAN. Without objection, your testimony will be placed

in the record in its entirety.

[Prepared statement of Lisa Oshiro appears in apendix.]

The CHAIRMAN. Thank you for the nice compliment of the staff.

They have worked very hard on this bill. They work hard on all

bills, but they worked particularly hard on this bill. You certainly

brought up the difficulty, the complications, about identifying who

is Indian anymore. I can tell you that 50 years ago it was easier.

The community was small. You tended to know families or you

knew how it was as the community grew. There was intermarriage.

More and more people are being reinstated as Federally-recognized

tribes. I cannot tell. If they tell me they are, I take their word for

it. It is getting more and more difficult all the time to define who

is Indian, particularly when each tribe sets their own criteria.
70

Thank you.

Mr. Nunez, you are the chairman of the Indian Land Working

Group from Albuquerque; is that correct?

Mr. NUNEZ. Yes, sir.

The CHAIRMAN. Please go ahead.

STATEMENT OF AUSTIN NUNEZ, CHAIRMAN, INDIAN LAND

WORKING GROUP, SAN XAVIER DISTRICT, TOHONO

O’ODHAM NATION

Mr. NUNEZ. Thank you very much, Chairman Campbell. The Indian Land Working Group thanks the committee for its invitation

to appear and provide testimony concerning the proposed amendments of the Indian Land Consolidation Act.

I would like to state at the outset that we are very pleased with

the changes that are contained in your bill. We look forward to its

passage. I would like to make some additional comments from my

prepared statement.

ILWG supports the implementation of a steady, long-term, adequately funded program of tribal and individual consolidation and

acquisition of fractional interests to avoid loss of trust status of allotted lands; adequate land owner access to information about their

lands; elimination of experimental estates; and land that have no

foundation and no law; amendments that are written in a style

comprehensible to the users; and true consultation with interests

directly affected by trust reform measures.

ILWG further supports the ability of land owners to engage in

owner management of parcels, if all owners agree; and a well

thought-out and carefully structured family and private trust pilot

project that protects against overreaching by third parties and preserves trust status; secretarially-maintained recording system for

tribal inheritance codes which are encouraged under ILCA; and the

establishment of missing persons investigation systems with appropriate unclaimed property provisions tailored for small accounts

and possibly smaller highly fractionated land interests.

In conclusion, ILWG suggests that S. 550 substitutes be streamlined to enact those provisions that are critical to repairing the

problems created by ILCA 2000, and the numerous provisions

about which there is general consensus.

Thank you. I would like to submit my written testimony for the

record.

The CHAIRMAN. Without objection, your testimony will be placed

in the record in its entirety.

[Prepared statement of Austin Nunez appears in appendix.]

The CHAIRMAN. Thank you, I appreciate your comments.

I am going to submit all of my questions to be answered in writing, if you would. Senator Inouye will probably do the same thing.

Without objection, so ordered.

We will keep the record open for 2 weeks for any additional comments that staff would ask or if you have some further recommendations of how we can make S. 1721 work. I would certainly

appreciate it.
71

Those in the audience, too, if you have any comments to submit,

we would appreciate that, too.

The CHAIRMAN. With that, the hearing is adjourned.

[Whereupon, at 10:40 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(73)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF MAURICE LYONS, CHAIRMAN, MORONGO BAND OF MISSION

INDIANS

Thank you Mr. Chairman and Vice Chairman Inouye for inviting the Morongo

Band of Mission Indians to provide you with our testimony concerning S. 550, the

American Indian Probate Reform Act of 2003, a bill to amend the Indian Land Consolidation Act. As you may recall, I testified before this committee in May of last

year to encourage the Senate to adopt legislation to amend ILCA and I come before

you today to do the same.

In 2002, Chairman Campbell asked the Department of the Interior to delay implementation of certain provisions of the Indian Land Consolidation Act Amendments

of 2000 [the act] pending further Congressional review of concerns and confusion

that have arisen in Indian country about the consequences—both intended and possibly unintended of those amendments. To date, the Department appears to have

honored your request and we are thankful for their willingness to do so.

As I relayed to you in May of last year, the 2000 act prompted the Department

to send out a series of notices to individual tribal members alerting them of expected changes to the rules of intestate succession and inheritance that will constrain the devising of interests on trust and restricted land to non-Indians. These

notices had an immediate detrimental impact on our tribe’s ability to plan for the

future and manage our tribal lands effectively and our tribal members’ ability to

pass their land down to their children and grandchildren.

While the Department has to date been willing to not implement the amendments

from the 2000 act, we know that they are not able to defer this action forever. To

this end, we encourage you to act swiftly on this matter.

The Morongo Reservation is located approximately 17 miles west of Palm Springs.

Our tribal membership enrollment is 1,200 and the reservation comprises approximately 33,000 acres of trust land, of which 31,115.47 acres are held in trust for the

tribe, and 1,286.35 acres are held in trust for individual allottees or their heirs. We

are continuing to make inquiries relative to the number of Morongo members that

have an interest in trust allotments on our reservation and other reservations. We

are also interested to learn how many non-Morongo members hold an interest in

trust allotments on the Morongo Reservation.

We at Morongo share the desire of Congress to preserve the trust status of existing allotments and other Indian lands, and we appreciate this committee’s hard

work in 1999 and 2000 to strike a balance in the Indian Land Consolidation Act

Amendments of 2000 between the individual property rights and interests of

allottees and the sovereign rights and interests of tribal governments. However, we

now recognize unintended consequences from this legislation have come about.

For example, because of the way that the 2000 act now defines ‘‘Indian,’’ the

Morongo Band is faced with having to revise its own membership criteria in order

to enable some of our enrolled members to pass their interests in trust allotments

to their own children. Congress must understand that we do not feel revising our

membership is a solution. The fact is that changing the membership is a very divi-
74

sive matter for tribal governments and their members. We should not be forced to

amend our membership criteria in order to protect the right of our members’ children to continue having interests in their family lands.

S. 550 includes a solution to the problem we face in California. Specifically, the

bill protects those individuals having an interest in the ownership, devise, or descent of trust or restricted land in the State of California, as long as that person

is a descendent of an Indian residing in the State of California on June 1, 1852 This

will allow members of my family who may no longer be eligible for membership in

the Morongo Tribe—but are most definitely American Indians—to carry on the traditions of our family on our lands.

Due to the unique history of reservations and rancherias in California, this definition highly warranted. Mr. Chairman, as you know, tribes which exist today were

largely cobbled together based on the geographic proximity of native people. For example, the Morongo Band of Mission Indians is made up from people who descended

from Cahuilla, Chemehuevi, Luiseno, Serrano and many others. These people all

lived in the same area and where combined into the Morongo Indian Reservation.

This situation is shared by many of the tribes located in California and is the basis

for a much needed definition for those native people who live California.

Mr. Chairman, thank you for your time and willingness to hear about the concerns of the Morongo Band of Mission Indians.
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147

Æ