I 

108TH CONGRESS 

2D SESSION S. 1721

IN THE HOUSE OF REPRESENTATIVES 

JUNE 3, 2004

Referred to the Committee on Resources 

AN ACT

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 2004’’.
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1 SEC. 2. FINDINGS. 

2 Congress finds that— 

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

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

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

6 of Indian reservations, did not permit Indian allot7 ment owners to provide for the testamentary disposi8 tion of the land that was allotted to them; 

9 (2) that Act provided that allotments would de10 scend according to State law of intestate succession 

11 based on the location of the allotment; 

12 (3) the reliance of the Federal Government on 

13 the State law of intestate succession with respect to 

14 the descent of allotments has resulted in numerous 

15 problems affecting Indian tribes, members of Indian 

16 tribes, and the Federal Government, including— 

17 (A) the increasingly fractionated ownership 

18 of trust and restricted land as that land is in19 herited by successive generations of owners as 

20 tenants in common; 

21 (B) the application of different rules of in22 testate succession to each interest of a decedent 

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

24 located within the boundaries of more than 1 

25 State, which application— 
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1 (i) makes probate planning unneces2 sarily difficult; and 

3 (ii) impedes efforts to provide probate 

4 planning assistance or advice; 

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

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

9 (D) the failure of Federal law to address 

10 or provide for many of the essential elements of 

11 general probate law, either directly or by ref12 erence, which— 

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

14 restricted land (and heirs and devisees of 

15 owners); and 

16 (ii) makes probate planning more dif17 ficult; 

18 (4) a uniform Federal probate code would like19 ly— 

20 (A) reduce the number of fractionated in21 terests in trust or restricted land; 

22 (B) facilitate efforts to provide probate 

23 planning assistance and advice and create in24 centives for owners of trust and restricted land 

25 to engage in estate planning; 
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1 (C) facilitate intertribal efforts to produce 

2 tribal probate codes in accordance with section 

3 206 of the Indian Land Consolidation Act (25 

4 U.S.C. 2205); and 

5 (D) provide essential elements of general 

6 probate law that are not applicable on the date 

7 of enactment of this Act to interests in trust or 

8 restricted land; and 

9 (5) the provisions of a uniform Federal probate 

10 code and other forth in this Act should operate to 

11 further the policy of the United States as stated in 

12 the Indian Land Consolidated Act Amendments of 

13 2000, Public Law 106–462, 102, November 7, 2000, 

14 114 Stat. 1992. 

15 SEC. 3. INDIAN PROBATE REFORM. 

16 (a) NONTESTAMENTARY DISPOSITION.—Section 207 

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

18 is amended by striking subsection (a) and inserting the 

19 following: 

20 ‘‘(a) NONTESTAMENTARY DISPOSITION.— 

21 ‘‘(1) RULES OF DESCENT.—Subject to any ap22 plicable Federal law relating to the devise or descent 

23 of trust or restricted property, any trust or re24 stricted interest in land or interest in trust person25 alty that is not disposed of by a valid will— 
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1 ‘‘(A) shall descend according to an applica2 ble tribal probate code approved in accordance 

3 with section 206; or 

4 ‘‘(B) in the case of a trust or restricted in5 terest in land or interest in trust personalty to 

6 which a tribal probate code does not apply, 

7 shall descend in accordance with— 

8 ‘‘(i) paragraphs (2) through (5); and 

9 ‘‘(ii) other applicable Federal law. 

10 ‘‘(2) RULES GOVERNING DESCENT OF ES11 TATE.— 

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

13 surviving spouse of the decedent, such spouse 

14 shall receive trust and restricted land and trust 

15 personalty in the estate as follows: 

16 ‘‘(i) If the decedent is survived by 1 

17 or more eligible heirs described in subpara18 graph (B) (i), (ii), (iii), or (iv), the surviving spouse shall receive 1 19 ⁄3 of the trust 

20 personalty of the decedent and a life estate 

21 without regard to waste in the interests in 

22 trust or restricted lands of the decedent. 

23 ‘‘(ii) If there are no eligible heirs de24 scribed in subparagraph (B) (i), (ii), (iii), 

25 or (iv), the surviving spouse shall receive 
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1 all of the trust personalty of the decedent 

2 and a life estate without regard to waste in 

3 the trust or restricted lands of the dece4 dent. 

5 ‘‘(iii) The remainder shall pass as set 

6 forth in subparagraph (B). 

7 ‘‘(iv) Trust personalty passing to a 

8 surviving spouse under the provisions of 

9 this subparagraph shall be maintained by 

10 the Secretary in an account as trust per11 sonalty, but only if such spouse is Indian. 

12 ‘‘(B) INDIVIDUAL AND TRIBAL HEIRS.— 

13 Where there is no surviving spouse of the dece14 dent, or there is a remainder interest pursuant 

15 to subparagraph (A), the trust or restricted es16 tate or such remainder shall, subject to sub17 paragraphs (A) and (D), pass as follows: 

18 ‘‘(i) To those of the decedent’s chil19 dren who are eligible heirs (or if 1 or more 

20 of such children do not survive the dece21 dent, the children of any such deceased 

22 child who are eligible heirs, by right of rep23 resentation, but only if such children of the 

24 deceased child survive the decedent) in 

25 equal shares. 
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1 ‘‘(ii) If the property does not pass 

2 under clause (i), to those of the decedent’s 

3 surviving great-grandchildren who are eli4 gible heirs, in equal shares. 

5 ‘‘(iii) If the property does not pass 

6 under clause (i) or (ii), to the decedent’s 

7 surviving parent who is an eligible heir, 

8 and if both parents survive the decedent 

9 and are both eligible heirs, to both parents 

10 in equal shares. 

11 ‘‘(iv) If the property does not pass 

12 under clause (i), (ii), or (iii), to those of 

13 the decedent’s surviving siblings who are 

14 eligible heirs, in equal shares. 

15 ‘‘(v) If the property does not pass 

16 under clause (i), (ii), (iii), or (iv), to the 

17 Indian tribe with jurisdiction over the in18 terests in trust or restricted lands; 

19 except that notwithstanding clause (v), an In20 dian co-owner (including the Indian tribe re21 ferred to in clause (v)) of a parcel of trust or 

22 restricted land may acquire an interest that 

23 would otherwise descend under that clause by 

24 paying into the estate of the decedent, before 

25 the close of the probate of the estate, the fair 
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1 market value of the interest in the land; if more 

2 than 1 Indian co-owner offers to pay for such 

3 interest, the highest bidder shall acquire the in4 terest. 

5 ‘‘(C) NO INDIAN TRIBE.— 

6 ‘‘(i) IN GENERAL.—If there is no In7 dian tribe with jurisdiction over the inter8 ests in trust or restricted lands that would 

9 otherwise descend under subparagraph 

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

11 equally among co-owners of trust or re12 stricted interests in the parcel; if there are 

13 no such co-owners, then to the United 

14 States, provided that any such interests in 

15 land passing to the United States under 

16 this subparagraph shall be sold by the Sec17 retary and the proceeds from such sale de18 posited into the land acquisition fund es19 tablished under section 216 (25 U.S.C. 

20 2215) and used for the purposes described 

21 in subsection (b) of that section. 

22 ‘‘(ii) CONTIGUOUS PARCEL.—If the 

23 interests passing to the United States 

24 under this subparagraph are in a parcel of 

25 land that is contiguous to another parcel of 
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1 trust or restricted land, the Secretary shall 

2 give the owner or owners of the trust or re3 stricted interest in the contiguous parcel 

4 the first opportunity to purchase the inter5 est at not less than fair market value de6 termined in accordance with this Act. If 

7 more than 1 such owner in the contiguous 

8 parcel request to purchase the parcel, the 

9 Secretary shall sell the parcel by public 

10 auction or sealed bid (as determined by the 

11 Secretary) at not less than fair market 

12 value to the owner of a trust or restricted 

13 interest in the contiguous parcel submit14 ting the highest bid. 

15 ‘‘(D) INTESTATE DESCENT OF SMALL

16 FRACTIONAL INTERESTS IN LAND.— 

17 ‘‘(i) GENERAL RULE.—Notwith18 standing subparagraphs (A) and (B), and 

19 subject to any applicable Federal law, any 

20 trust or restricted interest in land in the 

21 decedent’s estate that is not disposed of by 

22 a valid will and represents less than 5 per23 cent of the entire undivided ownership of 

24 the parcel of land of which such interest is 

25 a part, as evidenced by the decedent’s es-
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1 tate inventory at the time of the heirship 

2 determination, shall descend in accordance 

3 with clauses (ii) through (iv). 

4 ‘‘(ii) SURVIVING SPOUSE.—If there is 

5 a surviving spouse, and such spouse was 

6 residing on a parcel of land described in 

7 clause (i) at the time of the decedent’s 

8 death, the spouse shall receive a life estate 

9 without regard to waste in the decedent’s 

10 trust or restricted interest in only such 

11 parcel, and the remainder interest in that 

12 parcel shall pass in accordance with clause 

13 (iii). 

14 ‘‘(iii) SINGLE HEIR RULE.—Where 

15 there is no life estate created under clause 

16 (ii) or there is a remainder interest under 

17 that clause, the trust or restricted interest 

18 or remainder interest that is subject to this 

19 subparagraph shall descend, in trust or re20 stricted status, to— 

21 ‘‘(I) the decedent’s surviving 

22 child, but only if such child is an eligi23 ble heir; and if 2 or more surviving 

24 children are eligible heirs, then to the 

25 oldest of such children; 
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1 ‘‘(II) if the interest does not pass 

2 under subclause (I), the decedent’s 

3 surviving grandchild, but only if such 

4 grandchild is an eligible heir; and if 2 

5 or more surviving grandchildren are 

6 eligible heirs, then to the oldest of 

7 such grandchildren; 

8 ‘‘(III) if the interest does not 

9 pass under subclause (I) or (II), the 

10 decedent’s surviving great grandchild, 

11 but only if such great grandchild is an 

12 eligible heir; and if 2 or more sur13 viving great grandchildren are eligible 

14 heirs, then to the oldest of such great 

15 grandchildren; 

16 ‘‘(IV) if the interest does not 

17 pass under subclause (I), (II), or 

18 (III), the Indian tribe with jurisdic19 tion over the interest; or 

20 ‘‘(V) if the interest does not pass 

21 under subclause (I), (II), or (III), and 

22 there is no such Indian tribe to in23 herit the property under subclause 

24 (IV), the interest shall be divided 

25 equally among co-owners of trust or 
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1 restricted interests in the parcel; and 

2 if there are no such co-owners, then to 

3 the United States, to be sold, and the 

4 proceeds from sale used, in the same 

5 manner provided in subparagraph (C). 

6 The determination of which person is the oldest 

7 eligible heir for inheritance purposes under this 

8 clause shall be made by the Secretary in the de9 cedent’s probate proceeding and shall be con10 sistent with the provisions of this Act. 

11 ‘‘(iv) EXCEPTIONS.—Notwithstanding 

12 clause (iii)— 

13 ‘‘(I)(aa) the heir of an interest 

14 under clause (iii), unless the heir is a 

15 minor or incompetent person, may 

16 agree in writing entered into the 

17 record of the decedent’s probate pro18 ceeding to renounce such interest, in 

19 trust or restricted status, in favor 

20 of— 

21 ‘‘(AA) any other eligible heir 

22 or Indian person related to the 

23 heir by blood, but in any case 

24 never in favor of more than 1 

25 such heir or person; 
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1 ‘‘(BB) any co-owner of an2 other trust or restricted interest 

3 in such parcel of land; or 

4 ‘‘(CC) the Indian tribe with 

5 jurisdiction over the interest, if 

6 any; and 

7 ‘‘(bb) the Secretary shall give ef8 fect to such agreement in the distribu9 tion of the interest in the probate pro10 ceeding; and 

11 ‘‘(II) the governing body of the 

12 Indian tribe with jurisdiction over an 

13 interest in trust or restricted land 

14 that is subject to the provisions of 

15 this subparagraph may adopt a rule of 

16 intestate descent applicable to such 

17 interest that differs from the order of 

18 decedent set forth in clause (iii). The 

19 Secretary shall apply such rule to the 

20 interest in distributing the decedent’s 

21 estate, but only if— 

22 ‘‘(aa) a copy of the tribal 

23 rule is delivered to the official 

24 designated by the Secretary to 
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1 receive copies of tribal rules for 

2 the purposes of this clause; 

3 ‘‘(bb) the tribal rule provides 

4 for the intestate inheritance of 

5 such interest by no more than 1 

6 heir, so that the interest does not 

7 further fractionate; 

8 ‘‘(cc) the tribal rule does not 

9 apply to any interest disposed of 

10 by a valid will; 

11 ‘‘(dd) the decedent died on 

12 or after the date described in 

13 subsection (b) of section 8 of the 

14 American Indian Probate Act of 

15 2004, or on or after the date on 

16 which a copy of the tribal rule 

17 was delivered to the Secretary 

18 pursuant to item (aa), whichever 

19 is later; and 

20 ‘‘(ee) the Secretary does not 

21 make a determination within 90 

22 days after a copy of the tribal 

23 rule is delivered pursuant to item 

24 (aa) that the rule would be un25 reasonably difficult to administer 
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1 or does not conform with the re2 quirements in item (bb) or (cc). 

3 ‘‘(v) RULE OF CONSTRUCTION.—This 

4 subparagraph shall not be construed to 

5 limit a person’s right to devise any trust or 

6 restricted interest by way of a valid will in 

7 accordance with subsection (b). 

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

9 this subsection, all or any part of the estate of a de10 cedent is to pass to children of a deceased child by 

11 right of representation, that part is to be divided 

12 into as many equal shares as there are living chil13 dren of the decedent and pre-deceased children who 

14 left issue who survive the decedent. Each living child 

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

16 share of each pre-deceased child shall be divided 

17 equally among the pre-deceased child’s children. 

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

19 In the case of intestate succession under this sub20 section, if an individual fails to survive the decedent 

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

22 convincing evidence— 

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

24 predeceased the decedent for the purpose of in25 testate succession; and 
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1 ‘‘(B) the heirs of the decedent shall be de2 termined in accordance with this section. 

3 ‘‘(5) STATUS OF INHERITED INTERESTS.—Ex4 cept as provided in paragraphs (2) (A) and (D) re5 garding the life estate of a surviving spouse, a trust 

6 or restricted interest in land or trust personalty that 

7 descends under the provisions of this subsection 

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

9 status as such interest was held immediately prior to 

10 the decedent’s death.’’. 

11 (b) TESTAMENTARY DISPOSITION.—Section 207 of 

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

13 amended by striking subsection (b) and inserting the fol14 lowing: 

15 ‘‘(b) TESTAMENTARY DISPOSITION.— 

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

17 TRUST OR RESTRICTED LAND.— 

18 ‘‘(A) IN GENERAL.—Subject to any appli19 cable Federal law relating to the devise or de20 scent of trust or restricted land, or a tribal pro21 bate code approved by the Secretary in accord22 ance with section 206, the owner of a trust or 

23 restricted interest in land may devise such in24 terest to— 
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1 ‘‘(i) any lineal descendant of the tes2 tator; 

3 ‘‘(ii) any person who owns a pre4 existing undivided trust or restricted inter5 est in the same parcel of land; 

6 ‘‘(iii) the Indian tribe with jurisdiction 

7 over the interest in land; or 

8 ‘‘(iv) any Indian; 

9 in trust or restricted status. 

10 ‘‘(B) RULES OF INTERPRETATION.—Any 

11 devise of a trust or restricted interest in land 

12 pursuant to subparagraph (A) to an Indian or 

13 the Indian tribe with jurisdiction over the inter14 est shall be deemed to be a devise of the inter15 est in trust or restricted status. Any devise of 

16 a trust or restricted interest in land to a person 

17 who is only eligible to be a devisee under clause 

18 (i) or (ii) of subparagraph (A) shall be pre19 sumed to be a devise of the interest in trust or 

20 restricted status unless language in such devise 

21 clearly evidences an intent on the part of the 

22 testator that the interest is to pass as a life es23 tate or fee interest in accordance with para24 graph (2)(A). 
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1 ‘‘(2) DEVISE OF TRUST OR RESTRICTED LAND

2 AS A LIFE ESTATE OR IN FEE.— 

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

4 under any applicable Federal law, any trust or 

5 restricted interest in land that is not devised in 

6 accordance with paragraph (1)(A) may be de7 vised only— 

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

9 with the remainder being devised only in 

10 accordance with subparagraph (B) or para11 graph (1); or 

12 ‘‘(ii) except as provided in subpara13 graph (B), as a fee interest without Fed14 eral restrictions against alienation to any 

15 person who is not eligible to be a devisee 

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

17 ‘‘(B) INDIAN REORGANIZATION ACT

18 LANDS.—Any interest in trust or restricted land 

19 that is subject to section 4 of the Act of June 

20 18, 1934 (25 U.S.C. 464), may be devised only 

21 in accordance with— 

22 ‘‘(i) that section; 

23 ‘‘(ii) subparagraph (A)(i); or 

24 ‘‘(iii) paragraph (1)(A); 
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1 provided that nothing in this section or in sec2 tion 4 of the Act of June 18, 1934 (25 U.S.C. 

3 464), shall be construed to authorize the devise 

4 of any interest in trust or restricted land that 

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

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

7 ‘‘(3) GENERAL DEVISE OF AN INTEREST IN

8 TRUST PERSONALTY.— 

9 ‘‘(A) TRUST PERSONALITY DEFINED.—The 

10 term ‘trust personalty’ as used in this section 

11 includes all funds and securities of any kind 

12 which are held in trust in an individual Indian 

13 money account or otherwise supervised by the 

14 Secretary. 

15 ‘‘(B) IN GENERAL.—Subject to any appli16 cable Federal law relating to the devise or de17 scent of such trust personalty, or a tribal pro18 bate code approved by the Secretary in accord19 ance with section 206, the owner of an interest 

20 in trust personalty may devise such an interest 

21 to any person or entity. 

22 ‘‘(C) MAINTENANCE AS TRUST PERSON23 ALTY.—In the case of a devise of an interest in 

24 trust personalty to a person or Indian tribe eli25 gible to be a devisee under paragraph (1)(A), 
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1 the Secretary shall maintain and continue to 

2 manage such interests as trust personalty. 

3 ‘‘(D) DIRECT DISBURSEMENT AND DIS4 TRIBUTION.—In the case of a devise of an in5 terest in trust personalty to a person or Indian 

6 tribe not eligible to be a devisee under para7 graph (1)(A), the Secretary shall directly dis8 burse and distribute such personalty to the dev9 isee. 

10 ‘‘(4) INVALID DEVISES AND WILLS.— 

11 ‘‘(A) LAND.—Any trust or restricted inter12 est in land that is not devised in accordance 

13 with paragraph (1) or (2) or that is not dis14 posed of by a valid will shall descend in accord15 ance with the applicable law of intestate succes16 sion as provided for in subsection (a). 

17 ‘‘(B) PERSONALTY.—Any trust personalty 

18 that is not disposed of by a valid will shall de19 scend in accordance with the applicable law of 

20 intestate succession as provided for in sub21 section (a).’’. 

22 (c) JOINT TENANCY; RIGHT OF SURVIVORSHIP.— 

23 Section 207(c) of the Indian Land Consolidation Act (25 

24 U.S.C. 2206(c)) is amended by striking all that follows 
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1 the heading, ‘‘Joint Tenancy; Right of Survivorship’’, and 

2 inserting the following: 

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

4 testator devises trust or restricted interests in the 

5 same parcel of land to more than 1 person, in the 

6 absence of clear and express language in the devise 

7 stating that the interest is to pass to the devisees as 

8 tenants in common, the devise shall be presumed to 

9 create a joint tenancy with the right of survivorship 

10 in the interests involved. 

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

12 apply to any devise of an interest in trust or re13 stricted land where the will in which such devise is 

14 made was executed prior to the date that is 1 year 

15 after the date on which the Secretary publishes the 

16 certification required by section 8(a)(4) of the Amer17 ican Indian Probate Reform Act of 2004.’’. 

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

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

20 amended by adding at the end the following: 

21 ‘‘(h) APPLICABLE FEDERAL LAW.— 

22 ‘‘(1) IN GENERAL.—Any references in sub23 sections (a) and (b) to applicable Federal law in24 clude— 

25 ‘‘(A) Public Law 91–627 (84 Stat. 1874); 
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1 ‘‘(B) Public Law 92–377 (86 Stat. 530); 

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

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

4 and 

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

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

7 Act amends or otherwise affects the application of 

8 any law described in paragraph (1), or any other 

9 Federal law that pertains to— 

10 ‘‘(A) trust or restricted land located on 1 

11 or more specific Indian reservations that are ex12 pressly identified in such law; or 

13 ‘‘(B) the allotted lands of 1 or more spe14 cific Indian tribes that are expressly identified 

15 in such law. 

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

17 a contrary intent, and except as otherwise provided under 

18 this Act, applicable Federal law, or a tribal probate code 

19 approved by the Secretary pursuant to section 206, wills 

20 shall be construed as to trust and restricted land and trust 

21 personalty in accordance with the following rules: 

22 ‘‘(1) CONSTRUCTION THAT WILL PASSES ALL

23 PROPERTY.—A will shall be construed to apply to all 

24 trust and restricted land and trust personalty which 

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

2 will. 

3 ‘‘(2) CLASS GIFTS.— 

4 ‘‘(A) NO DIFFERENTIATION BETWEEN RE5 LATIONSHIP BY BLOOD AND RELATIONSHIP BY

6 AFFINITY.—Terms of relationship that do not 

7 differentiate relationships by blood from those 

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

9 ‘nephews’, are construed to exclude relatives by 

10 affinity. Terms of relationship that do not dif11 ferentiate relationships by the half blood from 

12 those by the whole blood, such as ‘brothers’, 

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

14 include both types of relationships. 

15 ‘‘(B) MEANING OF ‘HEIRS’ AND ‘NEXT OF

16 KIN’, ETC.; TIME OF ASCERTAINING CLASS.—A 

17 devise of trust or restricted interest in land or 

18 an interest in trust personalty to the testator’s 

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

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

21 persons, including the spouse, who would be en22 titled to take under the provisions of this Act 

23 for nontestamentary disposition. The class is to 

24 be ascertained as of the date of the testator’s 

25 death. 
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1 ‘‘(C) TIME FOR ASCERTAINING CLASS.—In 

2 construing a devise to a class other than a class 

3 described in subparagraph (B), the class shall 

4 be ascertained as of the time the devise is to 

5 take effect in enjoyment. The surviving issue of 

6 any member of the class who is then dead shall 

7 take by right of representation the share which 

8 their deceased ancestor would have taken. 

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

10 SIMILAR PHRASES.—In any devise under this chap11 ter, the words ‘die without issue’, ‘die without leav12 ing issue’, ‘have no issue’, or words of a similar im13 port shall be construed to mean that an individual 

14 had no lineal descendants in his lifetime or at his 

15 death, and not that there will be no lineal descend16 ants at some future time. 

17 ‘‘(4) PERSONS BORN OUT OF WEDLOCK.—In 

18 construing provisions of this chapter relating to 

19 lapsed and void devises, and in construing a devise 

20 to a person or persons described by relationship to 

21 the testator or to another, a person born out of wed22 lock shall be considered the child of the natural 

23 mother and also of the natural father. 

24 ‘‘(5) LAPSED DEVISES.—Subject to the provi25 sions of subsection (b), where the testator devises or 
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1 bequeaths a trust or restricted interest in land or 

2 trust personalty to the testator’s grandparents or to 

3 the lineal descendent of a grandparent, and the devi4 see or legatee dies before the testator leaving lineal 

5 descendents, such descendents shall take the interest 

6 so devised or bequeathed per stirpes. 

7 ‘‘(6) VOID DEVISES.—Except as provided in 

8 paragraph (5), and if the disposition shall not be 

9 otherwise expressly provided for by a tribal probate 

10 code approved under section 206 (25 U.S.C. 2205), 

11 if a devise other than a residuary devise of a trust 

12 or restricted interest in land or trust personalty fails 

13 for any reason, such interest shall become part of 

14 the residue and pass, subject to the provisions of 

15 subsection (b), to the other residuary devisees, if 

16 any, in proportion to their respective shares or inter17 ests in the residue. 

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

19 cemetery plot owned by the testator at his decease 

20 is not mentioned in the decedent’s will, the owner21 ship of the plot shall descend to his heirs as if he 

22 had died intestate. 

23 ‘‘(j) HEIRSHIP BY KILLING.— 

24 ‘‘(1) HEIR BY KILLING DEFINED.—As used in 

25 this subsection, ‘heir by killing’ means any person 
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1 who knowingly participates, either as a principal or 

2 as an accessory before the fact, in the willful and 

3 unlawful killing of the decedent. 

4 ‘‘(2) NO ACQUISITION OF PROPERTY BY KILL5 ING.—Subject to any applicable Federal law relating 

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

7 no heir by killing shall in any way acquire any trust 

8 or restricted interests in land or interests in trust 

9 personalty as the result of the death of the decedent, 

10 but such property shall pass in accordance with this 

11 subsection. 

12 ‘‘(3) DESCENT, DISTRIBUTION, AND RIGHT OF

13 SURVIVORSHIP.—The heir by killing shall be deemed 

14 to have predeceased the decedent as to decedent’s 

15 trust or restricted interests in land or trust person16 alty which would have passed from the decedent or 

17 his estate to such heir— 

18 ‘‘(A) under intestate succession under this 

19 section; 

20 ‘‘(B) under a tribal probate code, unless 

21 otherwise provided for; 

22 ‘‘(C) as the surviving spouse; 

23 ‘‘(D) by devise; 

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

25 ‘‘(F) as a survivorship interest; and 
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1 ‘‘(G) as a contingent remainder or execu2 tory or other future interest. 

3 ‘‘(4) JOINT TENANTS, JOINT OWNERS, AND

4 JOINT OBLIGEES.— 

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

6 personalty held by only the heir by killing and 

7 the decedent as joint tenants, joint owners, or 

8 joint obligees shall pass upon the death of the 

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

10 killing had predeceased the decedent. 

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

12 personalty held jointly by 3 or more persons, in13 cluding both the heir by killing and the dece14 dent, any income which would have accrued to 

15 the heir by killing as a result of the death of 

16 the decedent shall pass to the estate of the de17 cedent as if the heir by killing had predeceased 

18 the decedent and any surviving joint tenants. 

19 ‘‘(C) Notwithstanding any other provision 

20 of this subsection, the decedent’s trust or re21 stricted interest land or trust personalty that is 

22 held in a joint tenancy with the right of survi23 vorship shall be severed from the joint tenancy 

24 as though the property held in the joint tenancy 

25 were to be severed and distributed equally 
28 

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1 among the joint tenants and the decedent’s in2 terest shall pass to his estate; the remainder of 

3 the interests shall remain in joint tenancy with 

4 right of survivorship among the surviving joint 

5 tenants. 

6 ‘‘(5) LIFE ESTATE FOR THE LIFE OF AN7 OTHER.—If the estate is held by a third person 

8 whose possession expires upon the death of the dece9 dent, it shall remain in such person’s hands for the 

10 period of time following the decedent’s death equal 

11 to the life expectancy of the decedent but for the 

12 killing. 

13 ‘‘(6) PREADJUDICATION RULE.— 

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

15 charged, whether by indictment, information, or 

16 otherwise by the United States, a tribe, or any 

17 State, with voluntary manslaughter or homicide 

18 in connection with a decedent’s death, then any 

19 and all trust or restricted land or trust person20 alty that would otherwise pass to that person 

21 from the decedent’s estate shall not pass or be 

22 distributed by the Secretary until the charges 

23 have been resolved in accordance with the provi24 sions of this paragraph. 
29 

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1 ‘‘(B) DISMISSAL OR WITHDRAWAL.—Upon 

2 dismissal or withdrawal of the charge, or upon 

3 a verdict of not guilty, such land and personalty 

4 shall pass as if no charge had been filed or 

5 made. 

6 ‘‘(C) CONVICTION.—Upon conviction of 

7 such person, and the exhaustion of all appeals, 

8 if any, the trust and restricted land and trust 

9 personalty in the estate shall pass in accordance 

10 with this subsection. 

11 ‘‘(7) BROAD CONSTRUCTION; POLICY OF SUB12 SECTION.—This subsection shall not be considered 

13 penal in nature, but shall be construed broadly in 

14 order to effect the policy that no person shall be al15 lowed to profit by his own wrong, wherever com16 mitted. 

17 ‘‘(k) GENERAL RULES GOVERNING PROBATE.— 

18 ‘‘(1) SCOPE.—Except as provided under appli19 cable Federal law or a tribal probate code approved 

20 under section 206, the provisions of this subsection 

21 shall govern the probate of estates containing trust 

22 and restricted interests in land or trust personalty. 

23 ‘‘(2) PRETERMITTED SPOUSES AND CHIL24 DREN.— 

25 ‘‘(A) SPOUSES.— 
30 

S 1721 RFH 

1 ‘‘(i) IN GENERAL.—Except as pro2 vided in clause (ii), if the surviving spouse 

3 of a testator married the testator after the 

4 testator executed the will of the testator, 

5 the surviving spouse shall receive the intes6 tate share in the decedent’s trust or re7 stricted land and trust personalty that the 

8 spouse would have received if the testator 

9 had died intestate. 

10 ‘‘(ii) EXCEPTION.—Clause (i) shall 

11 not apply to a trust or restricted interest 

12 land where— 

13 ‘‘(I) the will of a testator is exe14 cuted before the date of enactment of 

15 this subparagraph; 

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

17 is a non-Indian; and 

18 ‘‘(bb) the testator devised the in19 terests in trust or restricted land of 

20 the testator to 1 or more Indians; 

21 ‘‘(III) it appears, based on an ex22 amination of the will or other evi23 dence, that the will was made in con24 templation of the marriage of the tes25 tator to the surviving spouse; 
31 

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1 ‘‘(IV) the will expresses the in2 tention that the will is to be effective 

3 notwithstanding any subsequent mar4 riage; or 

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

6 the spouse by a transfer of funds or 

7 property outside the will; and 

8 ‘‘(bb) an intent that the transfer 

9 be in lieu of a testamentary provision 

10 is demonstrated by statements of the 

11 testator or through a reasonable infer12 ence based on the amount of the 

13 transfer or other evidence. 

14 ‘‘(iii) SPOUSES MARRIED AT THE TIME

15 OF THE WILL.—Should the surviving 

16 spouse of the testator be omitted from the 

17 will of the testator, the surviving spouse 

18 shall be treated, for purposes of trust or 

19 restricted land or trust personalty in the 

20 testator’s estate, in accordance with the 

21 provisions of section 207(a)(2)(A), as 

22 though there was no will but only if— 

23 ‘‘(I) the testator and surviving 

24 spouse were continuously married 
32 

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1 without legal separation for the 5-year 

2 period preceding the decedent’s death; 

3 ‘‘(II) the testator and surviving 

4 spouse have a surviving child who is 

5 the child of the testator; 

6 ‘‘(III) the surviving spouse has 

7 made substantial payments toward the 

8 purchase of, or improvements to, the 

9 trust or restricted land in such estate; 

10 or 

11 ‘‘(IV) the surviving spouse is 

12 under a binding obligation to continue 

13 making loan payments for the trust or 

14 restricted land for a substantial period 

15 of time; 

16 except that, if there is evidence that the 

17 testator adequately provided for the sur18 viving spouse and any minor children by a 

19 transfer of funds or property outside of the 

20 will, this clause shall not apply. 

21 ‘‘(B) CHILDREN.— 

22 ‘‘(i) IN GENERAL.—If a testator exe23 cuted the will of the testator before the 

24 birth or adoption of 1 or more children of 

25 the testator, and the omission of the chil-
33 

S 1721 RFH 

1 dren from the will is a product of inadvert2 ence rather than an intentional omission, 

3 the children shall share in the trust or re4 stricted interests in land and trust person5 alty as if the decedent had died intestate. 

6 ‘‘(ii) ADOPTED HEIRS.—Any person 

7 recognized as an heir by virtue of adoption 

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

9 372a), shall be treated as the child of a de10 cedent under this subsection. 

11 ‘‘(iii) ADOPTED-OUT CHILDREN.— 

12 ‘‘(I) IN GENERAL.—For purposes 

13 of this Act, an adopted person shall 

14 not be considered the child or issue of 

15 his natural parents, except in distrib16 uting the estate of a natural kin, 

17 other than the natural parent, who 

18 has maintained a family relationship 

19 with the adopted person. If a natural 

20 parent shall have married the adopt21 ing parent, the adopted person for 

22 purposes of inheritance by, from and 

23 through him shall also be considered 

24 the issue of such natural parent. 
34 

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1 ‘‘(II) ELIGIBLE HEIR PURSUANT

2 TO OTHER FEDERAL LAW OR TRIBAL

3 LAW.—Notwithstanding the provisions 

4 of subparagraph (B)(iii)(I), other 

5 Federal laws and laws of the Indian 

6 tribe with jurisdiction over the trust 

7 or restricted interest in land may oth8 erwise define the inheritance rights of 

9 adopted-out children. 

10 ‘‘(3) 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. 
35 

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

3 the Secretary from giving effect to a prop4 erty right settlement relating to a trust or 

5 restricted interest in land or an interest in 

6 trust personalty if 1 of the parties to the 

7 settlement dies before the issuance of a 

8 final decree dissolving the marriage of the 

9 parties to the property 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, as of the 

15 effective date of the divorce or annulment, 

16 any disposition of trust or restricted inter17 ests in land or of trust personalty made by 

18 the will to the former spouse of the tes19 tator shall be considered to be revoked un20 less the will expressly 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. 
36 

S 1721 RFH 

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

8 at the time of decedent’s death will be treated as 

9 having survived the decedent if the child lives at 

10 least 120 hours after its birth. 

11 ‘‘(5) ADVANCEMENTS OF TRUST PERSONALTY

12 DURING LIFETIME; EFFECT ON DISTRIBUTION OF

13 ESTATE.— 

14 ‘‘(A) The trust personalty of a decedent 

15 who dies intestate as to all or a portion of his 

16 or her estate, given during the decedent’s life17 time to a person eligible to be an heir of the de18 cedent under subsection (b)(2)(B), shall be 

19 treated as an advancement against the heir’s 

20 inheritance, but only if the decedent declared in 

21 a contemporaneous writing, or the heir ac22 knowledged in writing, that the gift is an ad23 vancement or is to be taken into account in 

24 computing the division and distribution of the 

25 decedent’s intestate estate. 
37 

S 1721 RFH 

1 ‘‘(B) For the purposes of this section, 

2 trust personalty advanced during the decedent’s 

3 lifetime is valued as of the time the heir came 

4 into possession or enjoyment of the property or 

5 as of the time of the decedent’s death, which6 ever occurs first. 

7 ‘‘(C) If the recipient of the trust person8 alty predeceases the decedent, the property 

9 shall not be treated as an advancement or taken 

10 into account in computing the division and dis11 tribution of the decedent’s intestate estate un12 less the decedent’s contemporaneous writing 

13 provides otherwise. 

14 ‘‘(6) HEIRS RELATED TO DECEDENT THROUGH

15 2 LINES; SINGLE SHARE.—A person who is related 

16 to the decedent through 2 lines of relationship is en17 titled to only a single share of the trust or restricted 

18 land or trust personalty in the decedent’s estate 

19 based on the relationship that would entitle such 

20 person to the larger share. 

21 ‘‘(7) NOTICE.— 

22 ‘‘(A) IN GENERAL.—To the maximum ex23 tent practicable, the Secretary shall notify each 

24 owner of trust and restricted land of the provi25 sions of this Act. 
38 

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1 ‘‘(B) COMBINED NOTICES.—The notice 

2 under subparagraph (A) may, at the discretion 

3 of the Secretary, be provided with the notice re4 quired under subsection (a) of section 8 of the 

5 American Indian Probate Reform Act of 2004. 

6 ‘‘(8) RENUNCIATION OR DISCLAIMER OF INTER7 ESTS.— 

8 ‘‘(A) IN GENERAL.—Any person 18 years 

9 of age or older may renounce or disclaim an in10 heritance of a trust or restricted interest in 

11 land or in trust personalty through intestate 

12 succession or devise, either in full or subject to 

13 the reservation of a life estate (where the inter14 est is an interest in land), in accordance with 

15 subparagraph (B), by filing a signed and ac16 knowledged declaration with the probate deci17 sionmaker prior to entry of a final probate 

18 order. No interest so renounced or disclaimed 

19 shall be considered to have vested in the re20 nouncing or disclaiming heir or devisee, and the 

21 renunciation or disclaimer shall not be consid22 ered to be a transfer or gift of the renounced 

23 or disclaimed interest. 
39 

S 1721 RFH 

1 ‘‘(B) ELIGIBLE RECIPIENTS OF RE2 NOUNCED OR DISCLAIMED INTERESTS; NOTICE

3 TO RECIPIENTS.— 

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

5 restricted interest in land may be re6 nounced or disclaimed only in favor of— 

7 ‘‘(I) an eligible heir; 

8 ‘‘(II) any person who would have 

9 been eligible to be a devisee of the in10 terest in question pursuant to sub11 section (b)(1)(A) (but only in cases 

12 where the renouncing person is a devi13 see of the interest under a valid will); 

14 or 

15 ‘‘(III) the Indian tribe with juris16 diction over the interest in question; 

17 and the interest so renounced shall pass to 

18 its recipient in trust or restricted status. 

19 ‘‘(ii) TRUST PERSONALTY.—An inter20 est in trust personalty may be renounced 

21 or disclaimed in favor of any person who 

22 would be eligible to be a devisee of such an 

23 interest under subsection (b)(3) and shall 

24 pass to the recipient in accordance with 

25 the provisions of that subsection. 
40 

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1 ‘‘(iii) UNAUTHORIZED RENUNCI2 ATIONS AND DISCLAIMERS.—Unless re3 nounced or disclaimed in favor of a person 

4 or Indian tribe eligible to receive the inter5 est in accordance with the provisions of 

6 this subparagraph, a renounced or dis7 claimed interest shall pass as if the renun8 ciation or disclaimer had not been made. 

9 ‘‘(C) ACCEPTANCE OF INTEREST.—A re10 nunciation or disclaimer of an interest filed in 

11 accordance with this paragraph shall be consid12 ered accepted when implemented in a final 

13 order by a decisionmaker, and shall thereafter 

14 be irrevocable. No renunciation or disclaimer of 

15 an interest shall be included in such order un16 less the recipient of the interest has been given 

17 notice of the renunciation or disclaimer and has 

18 not refused to accept the interest. All dis19 claimers and renunciations filed and imple20 mented in probate orders made effective prior 

21 to the date of enactment of the American In22 dian Probate Reform Act of 2004 are hereby 

23 ratified. 

24 ‘‘(D) RULE OF CONSTRUCTION.—Nothing 

25 in this paragraph shall be construed to allow 
41 

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1 the renunciation of an interest that is subject to 

2 the provisions of section 207(a)(2)(D) (25 

3 U.S.C. 2206(a)(2)(D)) in favor of more than 1 

4 person. 

5 ‘‘(9) CONSOLIDATION AGREEMENTS.— 

6 ‘‘(A) IN GENERAL.—During the pendency 

7 of probate, the decisionmaker is authorized to 

8 approve written consolidation agreements effect9 ing exchanges or gifts voluntarily entered into 

10 between the decedent’s eligible heirs or devisees, 

11 to consolidate interests in any tract of land in12 cluded in the decedent’s trust inventory. Such 

13 agreements may provide for the conveyance of 

14 interests already owned by such heirs or devi15 sees in such tracts, without having to comply 

16 with the Secretary’s rules and requirements 

17 otherwise applicable to conveyances by deed of 

18 trust or restricted interests in land. 

19 ‘‘(B) EFFECTIVE.—An agreement ap20 proved under subparagraph (A) shall be consid21 ered final when implemented in an order by a 

22 decisionmaker. The final probate order shall di23 rect any changes necessary to the Secretary’s 

24 land records, to reflect and implement the 

25 terms of the approved agreement. 
42 

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1 ‘‘(C) EFFECT ON PURCHASE OPTION AT

2 PROBATE.—Any interest in trust or restricted 

3 land that is subject to a consolidation agree4 ment under this paragraph or section 207(e) 

5 (25 U.S.C. 2206(e)) shall not be available for 

6 purchase under section 207(p) (25 U.S.C. 

7 2206(p)) unless the decisionmaker determines 

8 that the agreement should not be approved.’’. 

9 SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN 

10 LANDS. 

11 Section 205 of the Indian Land Consolidation Act 

12 (25 U.S.C. 2204) (as amended by section 6(a)(2)) is 

13 amended by adding at the end the following: 

14 ‘‘(d) PARTITION OF HIGHLY FRACTIONATED INDIAN

15 LANDS.— 

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

17 applicable only to parcels of land (including surface 

18 and subsurface interests, except with respect to a 

19 subsurface interest that has been severed from the 

20 surface interest, in which case this subsection shall 

21 apply only to the surface interest) which the Sec22 retary has determined, pursuant to paragraph 

23 (2)(B), to be parcels of highly fractionated Indian 

24 land. 
43 

S 1721 RFH 

1 ‘‘(2) REQUIREMENTS.—Each partition action 

2 under this subsection shall be conducted by the Sec3 retary in accordance with the following require4 ments: 

5 ‘‘(A) APPLICATION.—Upon receipt of any 

6 payment or bond required under subparagraph 

7 (B), the Secretary shall commence a process for 

8 partitioning a parcel of land by sale in accord9 ance with the provisions of this subsection upon 

10 receipt of an application by— 

11 ‘‘(i) the Indian tribe with jurisdiction 

12 over the subject land that owns an undi13 vided interest in the parcel of land; or 

14 ‘‘(ii) any person owning an undivided 

15 interest in the parcel of land who is eligible 

16 to bid at the sale of the parcel pursuant to 

17 subclause (II), (III), or (IV) of subpara18 graph (I)(i); 

19 provided that no such application shall be valid 

20 or considered if it is received by the Secretary 

21 prior to the date that is 1 year after the date 

22 on which notice is published pursuant to section 

23 8(a)(4) of the American Indian Probate Reform 

24 Act of 2004. 
44 

S 1721 RFH 

1 ‘‘(B) COSTS OF SERVING NOTICE AND PUB2 LICATION.—The costs of serving and publishing 

3 notice under subparagraph (F) shall be borne 

4 by the applicant. Upon receiving written notice 

5 from the Secretary, the applicant must pay to 

6 the Secretary an amount determined by the 

7 Secretary to be the estimated costs of such 

8 service of notice and publication, or furnish a 

9 sufficient bond for such estimated costs within 

10 the time stated in the notice, failing which, un11 less an extension is granted by the Secretary, 

12 the Secretary shall not be required to com13 mence the partition process under subpara14 graph (A) and may deny the application. The 

15 Secretary shall have the discretion and author16 ity in any case to waive either the payment or 

17 the bond (or any portion of such payment or 

18 bond) otherwise required by this subparagraph, 

19 upon making a determination that such waiver 

20 will further the policies of this Act. 

21 ‘‘(C) DETERMINATION.—Upon receipt of 

22 an application pursuant to subparagraph (A), 

23 the Secretary shall determine whether the sub24 ject parcel meets the requirements set forth in 

25 section 202(6) (25 U.S.C. 2201(6)) to be classi-
45 

S 1721 RFH 

1 fied as a parcel of highly fractionated Indian 

2 land. 

3 ‘‘(D) CONSENT REQUIREMENTS.— 

4 ‘‘(i) IN GENERAL.—A parcel of land 

5 may be partitioned under this subsection 

6 only if the applicant obtains the written 

7 consent of— 

8 ‘‘(I) the Indian tribe with juris9 diction over the subject land if such 

10 Indian tribe owns an undivided inter11 est in the parcel; 

12 ‘‘(II) any owner who, for the 3- 

13 year period immediately preceding the 

14 date on which the Secretary receives 

15 the application, has 

16 ‘‘(aa) continuously main17 tained a bona fide residence on 

18 the parcel; or 

19 ‘‘(bb) operated a bona fide 

20 farm, ranch, or other business on 

21 the parcel; and 

22 ‘‘(III) the owners (including par23 ents of minor owners and legal guard24 ians of incompetent owners) of at 

25 least 50 percent of the undivided in-
46 

S 1721 RFH 

1 terests in the parcel, but only in cases 

2 where the Secretary determines that, 

3 based on the final appraisal prepared 

4 pursuant to subparagraph (F), any 1 

5 owner’s total undivided interest in the 

6 parcel (not including the interest of 

7 an Indian tribe or that of the owner 

8 requesting the partition) has a value 

9 in excess of $1,500. 

10 Any consent required by this clause must 

11 be in writing and acknowledged before a 

12 notary public (or other official authorized 

13 to make acknowledgments), and shall be 

14 approved by Secretary unless the Secretary 

15 has reason to believe that the consent was 

16 obtained as a result of fraud or undue in17 fluence. 

18 ‘‘(ii) CONSENT BY THE SECRETARY

19 ON BEHALF OF CERTAIN INDIVIDUALS.— 

20 For the purposes of clause (i)(III), the 

21 Secretary may consent on behalf of— 

22 ‘‘(I) undetermined heirs of trust 

23 or restricted interests and owners of 

24 such interests who are minors and 
47 

S 1721 RFH 

1 legal incompetents having no parents 

2 or legal guardian; and 

3 ‘‘(II) missing owners or owners 

4 of trust or restricted interests whose 

5 whereabouts are unknown, but only 

6 after a search for such owners has 

7 been completed in accordance with the 

8 provisions of this subsection. 

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

10 determined that the subject parcel is a parcel of 

11 highly fractionated Indian land pursuant to 

12 subparagraph (C), the Secretary shall cause to 

13 be made, in accordance with the provisions of 

14 this Act for establishing fair market value, an 

15 appraisal of the fair market value of the subject 

16 parcel. 

17 ‘‘(F) NOTICE TO OWNERS ON COMPLETION

18 OF APPRAISAL.—Upon completion of the ap19 praisal, the Secretary shall give notice of the re20 quested partition and appraisal to all owners of 

21 undivided interests in the parcel, in accordance 

22 with principles of due process. Such notice shall 

23 include the following requirements: 

24 ‘‘(i) WRITTEN NOTICE.—The Sec25 retary shall attempt to give each owner 
48 

S 1721 RFH 

1 written notice of the partition action stat2 ing the following: 

3 ‘‘(I) That a proceeding to parti4 tion the parcel of land by sale has 

5 been commenced. 

6 ‘‘(II) The legal description of the 

7 subject parcel. 

8 ‘‘(III) The owner’s ownership in9 terest in the subject parcel as evi10 denced by the Secretary’s records as 

11 of the date that owners are deter12 mined in accordance with clause (ii). 

13 ‘‘(IV) The results of the ap14 praisal. 

15 ‘‘(V) The owner’s right to receive 

16 a copy of the appraisal upon written 

17 request. 

18 ‘‘(VI) The owner’s right to com19 ment on or object to the proposed 

20 partition and the appraisal. 

21 ‘‘(VII) That the owner must 

22 timely comment on or object in writ23 ing to the proposed partition or the 

24 appraisal, in order to receive notice of 
49 

S 1721 RFH 

1 approval of the appraisal and right to 

2 appeal. 

3 ‘‘(VIII) The date by which the 

4 owner’s written comments or objec5 tions must be received, which shall 

6 not be less than 90 days after the 

7 date that the notice is mailed under 

8 this clause or last published under 

9 clause (ii)(II). 

10 ‘‘(IX) The address for requesting 

11 copies of the appraisal and for sub12 mitting written comments or objec13 tions. 

14 ‘‘(X) The name and telephone 

15 number of the official to be contacted 

16 for purposes of obtaining information 

17 regarding the proceeding, including 

18 the time and date of the auction of 

19 the land or the date for submitting 

20 sealed bids. 

21 ‘‘(XI) Any other information the 

22 Secretary deems to be appropriate. 

23 ‘‘(ii) MANNER OF SERVICE.— 

24 ‘‘(I) SERVICE BY CERTIFIED

25 MAIL.—The Secretary shall use due 
50 

S 1721 RFH 

1 diligence to provide all owners of in2 terests in the subject parcel, as evi3 denced by the Secretary’s records at 

4 the time of the determination under 

5 subparagraph (C), with actual notice 

6 of the partition proceedings by mail7 ing a copy of the written notice de8 scribed in clause (i) by certified mail, 

9 restricted delivery, to each such owner 

10 at the owner’s last known address. 

11 For purposes of this subsection, own12 ers shall be determined from the Sec13 retary’s land title records as of the 

14 date of the determination under sub15 paragraph (C) or a date that is not 

16 more than 90 days prior to the date 

17 of mailing under this clause, which18 ever is later. In the event the written 

19 notice to an owner is returned unde20 livered, the Secretary shall attempt to 

21 obtain a current address for such 

22 owner by conducting a reasonable 

23 search (including a reasonable search 

24 of records maintained by local, state, 

25 Federal and tribal governments and 
51 

S 1721 RFH 

1 agencies) and by inquiring with the 

2 Indian tribe with jurisdiction over the 

3 subject parcel, and, if different from 

4 that tribe, the Indian tribe of which 

5 the owner is a member, and, if suc6 cessful in locating any such owner, 

7 send written notice by certified mail 

8 in accordance with this subclause. 

9 ‘‘(II) NOTICE BY PUBLICA10 TION.—The Secretary shall give notice 

11 by publication of the partition pro12 ceedings to all owners that the Sec13 retary was unable to serve pursuant 

14 to subclause (I), and to unknown 

15 heirs and assigns by— 

16 ‘‘(aa) publishing the notice 

17 described in clause (i) at least 2 

18 times in a newspaper of general 

19 circulation in the county or coun20 ties where the subject parcel of 

21 land is located or, if there is an 

22 Indian tribe with jurisdiction 

23 over the parcel of land and that 

24 tribe publishes a tribal newspaper 

25 or newsletter at least once every 
52 

S 1721 RFH 

1 month, 1 time in such newspaper 

2 of general circulation and 1 time 

3 in such tribal newspaper or news4 letter; 

5 ‘‘(bb) posting such notice in 

6 a conspicuous place in the tribal 

7 headquarters or administration 

8 building (or such other tribal 

9 building determined by the Sec10 retary to be most appropriate for 

11 giving public notice) of the In12 dian tribe with jurisdiction over 

13 the parcel of land, if any; and 

14 ‘‘(cc) in addition to the fore15 going, in the Secretary’s discre16 tion, publishing notice in any 

17 other place or means that the 

18 Secretary determines to be ap19 propriate. 

20 ‘‘(G) REVIEW OF COMMENTS ON AP21 PRAISAL.— 

22 ‘‘(i) IN GENERAL.—After reviewing 

23 and considering comments or information 

24 timely submitted by any owner of an inter25 est in the parcel in response to the notice 
53 

S 1721 RFH 

1 required under subparagraph (F), the Sec2 retary may, consistent with the provisions 

3 of this Act for establishing fair market 

4 value— 

5 ‘‘(I) order a new appraisal; or 

6 ‘‘(II) approve the appraisal; 

7 provided that if the Secretary orders a new ap8 praisal under subclause (I), notice of the new 

9 appraisal shall be given as specified in clause 

10 (ii). 

11 ‘‘(ii) NOTICE.—Notice shall be 

12 given— 

13 ‘‘(I) in accordance with subpara14 graph (H), where the new appraisal 

15 results in a higher valuation of the 

16 land; or 

17 ‘‘(II) in accordance with subpara18 graph (F)(ii), where the new appraisal 

19 results in a lower valuation of the 

20 land. 

21 ‘‘(H) NOTICE TO OWNERS OF APPROVAL

22 OF APPRAISAL AND RIGHT TO APPEAL.—Upon 

23 making the determination under subparagraph 

24 (G), the Secretary shall provide to the Indian 

25 tribe with jurisdiction over the subject land and 
54 

S 1721 RFH 

1 to all persons who submitted written comments 

2 on or objections to the proposed partition or ap3 praisal, a written notice to be served on such 

4 tribe and persons by certified mail. Such notice 

5 shall state— 

6 ‘‘(i) the results of the appraisal; 

7 ‘‘(ii) that the owner has the right to 

8 review a copy of the appraisal upon re9 quest; 

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

11 less than the appraised value, subject to 

12 the consent requirements under paragraph 

13 (2)(D); 

14 ‘‘(iv) the time of the sale or for sub15 mitting bids under subparagraph (I); 

16 ‘‘(v) that the owner has the right, 

17 under the Secretary’s regulations gov18 erning administrative appeals, to pursue 

19 an administrative appeal from— 

20 ‘‘(I) the determination that the 

21 land may be partitioned by sale under 

22 the provisions of this section; and 

23 ‘‘(II) the Secretary’s order ap24 proving the appraisal; 
55 

S 1721 RFH 

1 ‘‘(vi) the date by which an administra2 tive appeal must be taken, a citation to the 

3 provisions of the Secretary’s regulations 

4 that will govern the owner’s appeal, and 

5 any other information required by such 

6 regulations to be given to parties affected 

7 by adverse decisions of the Secretary; 

8 ‘‘(vii) in cases where the Secretary de9 termines that any person’s undivided trust 

10 or restricted interest in the parcel exceeds 

11 $1,500 pursuant to paragraph (2)(D)(iii), 

12 that the Secretary has authority to consent 

13 to the partition on behalf of undetermined 

14 heirs of trust or restricted interests in the 

15 parcel and owners of such interests whose 

16 whereabouts are unknown; and 

17 ‘‘(viii) any other information the Sec18 retary deems to be appropriate. 

19 ‘‘(I) SALE TO ELIGIBLE PURCHASER.— 

20 ‘‘(i) IN GENERAL.—Subject to clauses 

21 (ii) and (iii) and the consent requirements 

22 of paragraph (2)(D), the Secretary shall, 

23 after providing notice to owners under sub24 paragraph (H), including the time and 

25 place of sale or for receiving sealed bids, at 
56 

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1 public auction or by sealed bid (whichever 

2 of such methods of sale the Secretary de3 termines to be more appropriate under the 

4 circumstances) sell the parcel of land by 

5 competitive bid for not less than the final 

6 appraised fair market value to the highest 

7 bidder from among the following eligible 

8 bidders: 

9 ‘‘(I) The Indian tribe, if any, 

10 with jurisdiction over the trust or re11 stricted interests in the parcel being 

12 sold. 

13 ‘‘(II) Any person who is a mem14 ber, or is eligible to be a member, of 

15 the Indian tribe described in sub16 clause (I). 

17 ‘‘(III) Any person who is a mem18 ber, or is eligible to be a member, of 

19 an Indian tribe but not of the tribe 

20 described in subclause (I), but only if 

21 such person already owns an undi22 vided interest in the parcel at the time 

23 of sale. 

24 ‘‘(IV) Any lineal descendent of 

25 the original allottee of the parcel who 
57 

S 1721 RFH 

1 is a member or is eligible to be a 

2 member of an Indian tribe or, with re3 spect to a parcel located in the State 

4 of California that is not within an In5 dian tribe’s reservation or not other6 wise subject to the jurisdiction of an 

7 Indian tribe, who is a member, or eli8 gible to be a member, of an Indian 

9 tribe or owns a trust or restricted in10 terest in the parcel. 

11 ‘‘(ii) RIGHT TO MATCH HIGHEST

12 BID.—If the highest bidder is a person who 

13 is only eligible to bid under clause (i)(III), 

14 the Indian tribe that has jurisdiction over 

15 the parcel, if any, shall have the right to 

16 match the highest bid and acquire the par17 cel, but only if— 

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

19 the governing body of such tribe has 

20 adopted a tribal law or resolution re21 serving its right to match the bids of 

22 such nonmember bidders in partition 

23 sales under this subsection and deliv24 ered a copy of such law or resolution 

25 to the Secretary; and 
58 

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1 ‘‘(II) the parcel is not acquired 

2 under clause (iii). 

3 ‘‘(iii) RIGHT TO PURCHASE.—Any 

4 person who is a member, or eligible to be 

5 a member, of the Indian tribe with juris6 diction over the trust or restricted interests 

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

8 time of sale under this subparagraph, the 

9 owner of the largest undivided interest in 

10 the parcel shall have a right to purchase 

11 the parcel by tendering to the Secretary an 

12 amount equal to the highest sufficient bid 

13 submitted at the sale, less that amount of 

14 the bid attributable to such owner’s share, 

15 but only if— 

16 ‘‘(I) the owner submitted a suffi17 cient bid at the sale; 

18 ‘‘(II) the owner’s total undivided 

19 interest in the parcel immediately 

20 prior to the sale was— 

21 ‘‘(aa) greater than the undi22 vided interest held by any other 

23 co-owners, except where there are 

24 2 or more co-owners whose inter25 ests are of equal size but larger 
59 

S 1721 RFH 

1 than the interests of all other co2 owners and such owners of the 

3 largest interests have agreed in 

4 writing that 1 of them may exer5 cise the right of purchase under 

6 this clause; and 

7 ‘‘(bb) equal to or greater 

8 than 20 percent of the entire un9 divided ownership of the parcel; 

10 ‘‘(III) within 3 days following the 

11 date of the auction or for receiving 

12 sealed bids, and in accordance with 

13 the regulations adopted to implement 

14 this section, the owner delivers to the 

15 Secretary a written notice of intent to 

16 exercise the owner’s rights under this 

17 clause; and 

18 ‘‘(IV) such owner tenders the 

19 amount of the purchase price required 

20 under this clause— 

21 ‘‘(aa) not less than 30 days 

22 after the date of the auction or 

23 time for receiving sealed bids; 

24 and 
60 

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1 ‘‘(bb) in accordance with 

2 any requirements of the regula3 tions promulgated to implement 

4 this section. 

5 ‘‘(iv) INTEREST ACQUIRED.—A pur6 chaser of a parcel of land under this sub7 paragraph shall acquire title to the parcel 

8 in trust or restricted status, free and clear 

9 of any and all claims of title or ownership 

10 of all persons or entities (not including the 

11 United States) owning or claiming to own 

12 an interest in such parcel prior to the time 

13 of sale. 

14 ‘‘(J) PROCEEDS OF SALE.— 

15 ‘‘(i) Subject to clauses (ii) and (iii), 

16 the Secretary shall distribute the proceeds 

17 of sale of a parcel of land under the provi18 sions of this section to the owners of inter19 ests in such parcel in proportion to their 

20 respective ownership interests. 

21 ‘‘(ii) Proceeds attributable to the sale 

22 of trust or restricted interests shall be 

23 maintained in accounts as trust personalty. 

24 ‘‘(iii) Proceeds attributable to the sale 

25 of interests of owners whose whereabouts 
61 

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1 are unknown, of undetermined heirs, and 

2 of other persons whose ownership interests 

3 have not been recorded shall be held by the 

4 Secretary until such owners, heirs, or other 

5 persons have been determined, at which 

6 time such proceeds shall be distributed in 

7 accordance with clauses (i) and (ii). 

8 ‘‘(K) LACK OF BIDS OR CONSENT.— 

9 ‘‘(i) LACK OF BIDS.—If no bidder de10 scribed in subparagraph (I) presents a bid 

11 that equals or exceeds the final appraised 

12 value, the Secretary may either— 

13 ‘‘(I) purchase the parcel of land 

14 for its appraised fair market value on 

15 behalf of the Indian tribe with juris16 diction over the land, subject to the 

17 lien and procedures provided under 

18 section 214(b) (25 U.S.C. 2213(b)); 

19 or 

20 ‘‘(II) terminate the partition 

21 process. 

22 ‘‘(ii) LACK OF CONSENT.—If an appli23 cant fails to obtain any applicable consent 

24 required under the provisions of subpara25 graph (D) by the date established by the 
62 

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1 Secretary prior to the proposed sale, the 

2 Secretary may either extend the time for 

3 obtaining any such consent or deny the re4 quest for partition. 

5 ‘‘(3) ENFORCEMENT.— 

6 ‘‘(A) IN GENERAL.—If a partition is ap7 proved under this subsection and an owner of 

8 an interest in the parcel of land refuses to sur9 render possession in accordance with the parti10 tion decision, or refuses to execute any convey11 ance necessary to implement the partition, then 

12 any affected owner or the United States may— 

13 ‘‘(i) commence a civil action in the 

14 United States district court for the district 

15 in which the parcel of land is located; and 

16 ‘‘(ii) request that the court issue an 

17 order for ejectment or any other appro18 priate remedy necessary for the partition 

19 of the land by sale. 

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 
63 

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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 a necessary and indispen8 sable party. 

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

10 provide grants and low interest loans to successful 

11 bidders at sales authorized by this subsection, pro12 vided that— 

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

14 any such sale shall not exceed 20 percent of the 

15 appraised value of the parcel of land sold; and 

16 ‘‘(B) the grant or loan funds provided shall 

17 only be applied toward the purchase price of the 

18 parcel of land sold. 

19 ‘‘(5) REGULATIONS.—The Secretary is author20 ized to adopt such regulations as may be necessary 

21 to implement the provisions of this subsection. Such 

22 regulations shall include provisions for giving notice 

23 of sales to prospective purchasers eligible to submit 

24 bids at sales conducted under paragraph (2)(I).’’. 
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1 SEC. 5. OWNER-MANAGED INTERESTS. 

2 The Indian Land Consolidation Act (25 U.S.C. 2201 

3 et seq.) is amended by adding at the end the following: 

4 ‘‘SEC. 221. OWNER-MANAGED INTERESTS. 

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

6 provide a means for the co-owners of trust or restricted 

7 interests in a parcel of land to enter into surface leases 

8 of such parcel for certain purposes without approval of 

9 the Secretary. 

10 ‘‘(b) MINERAL INTERESTS.—Nothing in this section 

11 shall be construed to limit or otherwise affect the applica12 tion of any Federal law requiring the Secretary to approve 

13 mineral leases or other agreements for the development 

14 of the mineral interest in trust or restricted land. 

15 ‘‘(c) OWNER MANAGEMENT.— 

16 ‘‘(1) IN GENERAL.—Notwithstanding any provi17 sion of Federal law requiring the Secretary to ap18 prove individual Indian leases of individual Indian 

19 trust or restricted land, where the owners of all of 

20 the undivided trust or restricted interests in a parcel 

21 of land have submitted applications to the Secretary 

22 pursuant to subsection (a), and the Secretary has 

23 approved such applications under subsection (d), 

24 such owners may, without further approval by the 

25 Secretary, enter into a lease of the parcel for agri26 cultural purposes for a term not to exceed 10 years. 
65 

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1 ‘‘(2) RULE OF CONSTRUCTION.—No such lease 

2 shall be effective until it has been executed by the 

3 owners of all undivided trust or restricted interests 

4 in the parcel. 

5 ‘‘(d) APPROVAL OF APPLICATIONS FOR OWNER MAN6 AGEMENT.— 

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

8 paragraph (2), the Secretary shall approve an appli9 cation for owner management submitted by a quali10 fied applicant pursuant to this section unless the 

11 Secretary has reason to believe that the applicant is 

12 submitting the application as the result of fraud or 

13 undue influence. No such application shall be valid 

14 or considered if it is received by the Secretary prior 

15 to the date that is 1 year after the date on which 

16 notice is published pursuant to section 8(a)(4) of the 

17 American Indian Probate Reform Act of 2004. 

18 ‘‘(2) COMMENCEMENT OF OWNER-MANAGED

19 STATUS.—Notwithstanding the approval of 1 or 

20 more applications pursuant to paragraph (1), no 

21 trust or restricted interest in a parcel of land shall 

22 acquire owner-managed status until applications for 

23 all of the trust or restricted interests in such parcel 

24 of land have been submitted to and approved by the 

25 Secretary pursuant to this section. 
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1 ‘‘(e) VALIDITY OF LEASES.—No lease of trust or re2 stricted interests in a parcel of land that is owner-man3 aged under this section shall be valid or enforceable 

4 against the owners of such interests, or against the land, 

5 the interest or the United States, unless such lease— 

6 ‘‘(1) is consistent with, and entered into in ac7 cordance with, the requirements of this section; or 

8 ‘‘(2) has been approved by the Secretary in ac9 cordance with other Federal laws applicable to the 

10 leasing of trust or restricted land. 

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

12 responsible for the collection of, or accounting for, any 

13 lease revenues accruing to any interests under a lease au14 thorized by subsection (e), so long as such interest is in 

15 owner-managed status under the provisions of this section. 

16 ‘‘(g) JURISDICTION.— 

17 ‘‘(1) JURISDICTION UNAFFECTED BY STATUS.— 

18 The Indian tribe with jurisdiction over an interest in 

19 trust or restricted land that becomes owner-managed 

20 pursuant to this section shall continue to have juris21 diction over the interest to the same extent and in 

22 all respects that such tribe had prior to the interest 

23 acquiring owner-managed status. 

24 ‘‘(2) PERSONS USING LAND.—Any person hold25 ing, leasing, or otherwise using such interest in land 
67 

S 1721 RFH 

1 shall be considered to consent to the jurisdiction of 

2 the Indian tribe referred to in paragraph (1), includ3 ing such tribe’s laws and regulations, if any, relating 

4 to the use, and any effects associated with the use, 

5 of the interest. 

6 ‘‘(h) CONTINUATION OF OWNER-MANAGED STATUS; 

7 REVOCATION.— 

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

9 paragraph (2), after the applications of the owners 

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

11 of land have been approved by the Secretary pursu12 ant to subsection (d), each such interest shall con13 tinue in owner-managed status under this section 

14 notwithstanding any subsequent conveyance of the 

15 interest in trust or restricted status to another per16 son or the subsequent descent of the interest in trust 

17 or restricted status by testate or intestate succession 

18 to 1 or more heirs. 

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

20 an interest may be revoked upon written request of 

21 the owners (including the parents or legal guardians 

22 of minors or incompetent owners) of all trust or re23 stricted interests in the parcel, submitted to the Sec24 retary in accordance with regulations adopted under 

25 subsection (l). The revocation shall become effective 
68 

S 1721 RFH 

1 as of the date on which the last of all such requests 

2 has been delivered to the Secretary. 

3 ‘‘(3) EFFECT OF REVOCATION.—Revocation of 

4 owner-managed status under paragraph (2) shall not 

5 affect the validity of any lease made in accordance 

6 with the provisions of this section prior to the effec7 tive date of the revocation, provided that, after such 

8 revocation becomes effective, the Secretary shall be 

9 responsible for the collection of, and accounting for, 

10 all future lease revenues accruing to the trust or re11 stricted interests in the parcel from and after such 

12 effective date. 

13 ‘‘(i) DEFINED TERMS.— 

14 ‘‘(1) For purposes of subsection (d)(1), the 

15 term ‘qualified applicant’ means— 

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

17 a trust or restricted interest in a parcel of land; 

18 and 

19 ‘‘(B) the parent or legal guardian of a 

20 minor or incompetent person who owns a trust 

21 or restricted interest in a parcel of land. 

22 ‘‘(2) For purposes of this section, the term 

23 ‘owner-managed status’ means, with respect to a 

24 trust or restricted interest, that— 
69 

S 1721 RFH 

1 ‘‘(A) the interest is a trust or restricted in2 terest in a parcel of land for which applications 

3 covering all trust or restricted interests in such 

4 parcel have been submitted to and approved by 

5 the Secretary pursuant to subsection (d); 

6 ‘‘(B) the interest may be leased without 

7 approval of the Secretary pursuant to, and in a 

8 manner that is consistent with, the require9 ments of this section; and 

10 ‘‘(C) no revocation has occurred under 

11 subsection (h)(2). 

12 ‘‘(j) SECRETARIAL APPROVAL OF OTHER TRANS13 ACTIONS.—Except with respect to the specific lease trans14 action described in paragraph (1) of subsection (c), inter15 ests that acquire owner-managed status under the provi16 sions of this section shall continue to be subject to all Fed17 eral laws requiring the Secretary to approve transactions 

18 involving trust or restricted land (including leases with 

19 terms of a duration in excess of 10 years) that would oth20 erwise apply to such interests if the interests had not ac21 quired owner-managed status under this section. 

22 ‘‘(k) EFFECT OF SECTION.—Subject to subsections 

23 (c), (f), and (h), nothing in this section diminishes or oth24 erwise affects any authority or responsibility of the Sec-
70 

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1 retary with respect to an interest in trust or restricted 

2 land.’’. 

3 SEC. 6. ADDITIONAL AMENDMENTS. 

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

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

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

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

8 the undivided interests’’ and inserting ‘‘undivided in9 terests equal to at least 50 percent of the undivided 

10 interest’’; 

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

12 a subsection at the end as follows: 

13 ‘‘(p) PURCHASE OPTION AT PROBATE.— 

14 ‘‘(1) IN GENERAL.—The trust or restricted in15 terests in a parcel of land in the decedent’s estate 

16 may be purchased at probate in accordance with the 

17 provisions of this subsection. 

18 ‘‘(2) SALE OF INTEREST AT FAIR MARKET

19 VALUE.—Subject to paragraph (3), the Secretary is 

20 authorized to sell trust or restricted interests in land 

21 subject to this subsection, including the interest that 

22 a surviving spouse would otherwise receive under 

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

24 market value, as determined in accordance with the 
71 

S 1721 RFH 

1 provisions of this Act, to any of the following eligible 

2 purchasers: 

3 ‘‘(A) Any other eligible heir taking an in4 terest in the same parcel of land by intestate 

5 succession or the decedent’s other devisees of 

6 interests in the same parcel who are eligible to 

7 receive a devise under section 207(b)(1)(A). 

8 ‘‘(B) All persons who own undivided trust 

9 or restricted interests in the same parcel of 

10 land involved in the probate proceeding. 

11 ‘‘(C) The Indian tribe with jurisdiction 

12 over the interest, or the Secretary on behalf of 

13 such Indian tribe. 

14 ‘‘(3) REQUEST TO PURCHASE; AUCTION; CON15 SENT REQUIREMENTS.—No sale of an interest in 

16 probate shall occur under this subsection unless— 

17 ‘‘(A) an eligible purchaser described in 

18 paragraph (2) submits a written request to pur19 chase prior to the distribution of the interest to 

20 heirs or devisees of the decedent and in accord21 ance with any regulations of the Secretary; and 

22 ‘‘(B) except as provided in paragraph (5), 

23 the heirs or devisees of such interest, and the 

24 decedent’s surviving spouse, if any, receiving a 
72 

S 1721 RFH 

1 life estate under section 207(a)(2) (A) or (D) 

2 consent to the sale. 

3 If the Secretary receives more than 1 request to pur4 chase the same interest, the Secretary shall sell the 

5 interest by public auction or sealed bid (as deter6 mined by the Secretary) at not less than the ap7 praised fair market value to the eligible purchaser 

8 submitting the highest bid. 

9 ‘‘(4) APPRAISAL AND NOTICE.—Prior to the 

10 sale of an interest pursuant to this subsection, the 

11 Secretary shall— 

12 ‘‘(A) appraise the interest at its fair mar13 ket value in accordance with this Act; 

14 ‘‘(B) provide eligible heirs, other devisees, 

15 and the Indian tribe with jurisdiction over the 

16 interest with written notice, sent by first class 

17 mail, that the interest is available for purchase 

18 in accordance with this subsection; and 

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

20 request to purchase the interest by a person de21 scribed in subparagraph (B), provide notice of 

22 the manner (auction or sealed bid), time and 

23 place of the sale, a description, and the ap24 praised fair market value, of the interest to be 

25 sold— 
73 

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

2 the Indian tribe with jurisdiction over the 

3 interest, by first class mail; and 

4 ‘‘(ii) to all other eligible purchasers, 

5 by posting written notice in at least 5 con6 spicuous places in the vicinity of the place 

7 of hearing. 

8 ‘‘(5) SMALL UNDIVIDED INTERESTS IN INDIAN

9 LANDS.— 

10 ‘‘(A) IN GENERAL.—Subject to subpara11 graph (B), the consent of a person who is an 

12 heir otherwise required under paragraph (3)(B) 

13 shall not be required for the auction and sale 

14 of an interest at probate under this subsection 

15 if— 

16 ‘‘(i) the interest is passing by intes17 tate succession; and 

18 ‘‘(ii) prior to the auction the Sec19 retary determines in the probate pro20 ceeding that the interest passing to such 

21 heir represents less than 5 percent of the 

22 entire undivided ownership of the parcel of 

23 land as evidenced by the Secretary’s 

24 records as of the time the determination is 

25 made. 
74 

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1 ‘‘(B) EXCEPTION.—Notwithstanding sub2 paragraph (A), the consent of such heir shall be 

3 required for the sale at probate of the heir’s in4 terest if, at the time of the decedent’s death, 

5 the heir was residing on the parcel of land of 

6 which the interest to be sold was a part. 

7 ‘‘(6) DISTRIBUTION OF PROCEEDS.—Proceeds 

8 from the sale of interests under this subsection shall 

9 be distributed to the heirs, devisees, or spouse whose 

10 interest was sold in accordance with the values of 

11 their respective interests. The proceeds attributable 

12 to an heir or devisee shall be held in an account as 

13 trust personalty if the interest sold would have oth14 erwise passed to the heir or devisee in trust or re15 stricted status.’’; 

16 (3) 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 prohibits the devise 

23 of an interest in trust or restricted land to— 

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

25 original allottee; or 
75 

S 1721 RFH 

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

2 Indian tribe with jurisdiction over such an in3 terest; 

4 unless the code provides for— 

5 ‘‘(i) the renouncing of interests to eli6 gible devisees in accordance with the code; 

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

8 is the spouse or lineal descendant of a tes9 tator to reserve a life estate without regard 

10 to waste; and 

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

12 the manner prescribed under subsection 

13 (c)(2).’’; and 

14 (B) in subsection (c)— 

15 (i) in paragraph (1)— 

16 (I) by striking the paragraph 

17 heading and inserting the following: 

18 ‘‘(1) AUTHORITY.— 

19 ‘‘(A) IN GENERAL.—’’; 

20 (II) in the first sentence of sub21 paragraph (A) (as redesignated by 

22 clause (i)), by striking ‘‘section 

23 207(a)(6)(A) of this title’’ and insert24 ing ‘‘section 207(b)(2)(A)(ii) of this 

25 title’’; and 
76 

S 1721 RFH 

1 (III) by striking the last sentence 

2 and inserting the following: 

3 ‘‘(B) TRANSFER.—The Secretary shall 

4 transfer payments received under subparagraph 

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

6 received an interest in land if the interest had 

7 not been acquired by the Indian tribe in accord8 ance with this paragraph.’’; and 

9 (ii) in paragraph (2)— 

10 (I) in subparagraph (A)— 

11 (aa) by striking the subpara12 graph heading and all that fol13 lows through ‘‘Paragraph (1) 

14 shall not apply’’ and inserting the 

15 following: 

16 ‘‘(A) INAPPLICABILITY TO CERTAIN INTER17 ESTS.— 

18 ‘‘(i) IN GENERAL.—Paragraph (1) 

19 shall not apply’’; 

20 (bb) in clause (i) (as redes21 ignated by item (aa)), by striking 

22 ‘‘if, while’’ and inserting the fol23 lowing: ‘‘if— 

24 ‘‘(I) while’’; 
77 

S 1721 RFH 

1 (cc) by striking the period at 

2 the end and inserting ‘‘; or’’; and 

3 (dd) by adding at the end 

4 the following: 

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

6 family farm that is devised to a mem7 ber of the family of the decedent; and 

8 ‘‘(bb) the devisee agrees that the 

9 Indian tribe with jurisdiction over the 

10 land will have the opportunity to ac11 quire the interest for fair market 

12 value if the interest is offered for sale 

13 to a person or entity that is not a 

14 member of the family of the owner of 

15 the land. 

16 ‘‘(ii) RECORDING OF INTEREST.—On 

17 request by the Indian tribe described in 

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

19 the acquisition by the Indian tribe of an 

20 interest in a family farm involved shall be 

21 recorded as part of the deed relating to the 

22 interest involved. 

23 ‘‘(iii) MORTGAGE AND FORE24 CLOSURE.—Nothing in clause (i)(II) lim25 its— 
78 

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1 ‘‘(I) the ability of an owner of 

2 land to which that clause applies to 

3 mortgage the land; or 

4 ‘‘(II) the right of the entity hold5 ing such a mortgage to foreclose or 

6 otherwise enforce such a mortgage 

7 agreement in accordance with applica8 ble law. 

9 ‘‘(iv) DEFINITION OF ‘MEMBER OF

10 THE FAMILY’.—In this paragraph, the 

11 term ‘member of the family’, with respect 

12 to a decedent or landowner, means— 

13 ‘‘(I) a lineal descendant of a de14 cedent or landowner; 

15 ‘‘(II) a lineal descendant of the 

16 grandparent of a decedent or land17 owner; 

18 ‘‘(III) the spouse of a descendant 

19 or landowner described in subclause 

20 (I) or (II); and 

21 ‘‘(IV) the spouse of a decedent or 

22 landowner.’’; and 

23 (II) in subparagraph (B), by 

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

25 that follows through ‘‘207(a)(6)(B) of 
79 

S 1721 RFH 

1 this title’’ and inserting ‘‘paragraph 

2 (1)’’; 

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

4 subsection (g); 

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

6 (A) by striking the section heading and in7 serting the following: 

8 ‘‘SEC. 2212. FRACTIONAL INTEREST ACQUISITION PRO9 GRAM.’’; 

10 (B) in subsection (a), by— 

11 (i) adding in paragraph (1) ‘‘or from 

12 an heir during probate in accordance with 

13 section 207(p) (25 U.S.C. 2206(p))’’ after 

14 ‘‘owner,’’; and 

15 (ii) striking ‘‘(2) AUTHORITY OF SEC16 RETARY.—’’ and all that follows through 

17 ‘‘the Secretary shall submit’’ and inserting 

18 the following: 

19 ‘‘(2) AUTHORITY OF SECRETARY.—The Sec20 retary shall submit’’; and 

21 (iii) by striking ‘‘whether the program 

22 to acquire fractional interests should be ex23 tended or altered to make resources’’ and 

24 inserting ‘‘how the fractional interest ac-
80 

S 1721 RFH 

1 quisition program should be enhanced to 

2 increase the resources made’’; 

3 (C) in subsection (b), by striking para4 graph (4) and inserting the following: 

5 ‘‘(4) shall minimize the administrative costs as6 sociated with the land acquisition program through 

7 the use of policies and procedures designed to ac8 commodate the voluntary sale of interests under this 

9 section, notwithstanding the existence of any other10 wise applicable policy, procedure, or regulation, 

11 through the elimination of duplicate— 

12 ‘‘(A) conveyance documents; 

13 ‘‘(B) administrative proceedings; and 

14 ‘‘(C) transactions.’’; 

15 (D) in subsection (c)— 

16 (i) in paragraph (1)— 

17 (I) in subparagraph (A), by strik18 ing ‘‘at least 5 percent of the’’ and in19 serting in its place ‘‘an’’; 

20 (II) in subparagraph (A), by in21 serting ‘‘in such parcel’’ following 

22 ‘‘the Secretary shall convey an inter23 est’’; 

24 (III) in subparagraph (A), by 

25 striking ‘‘landowner upon payment’’ 
81 

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1 and all that follows and inserting the 

2 following: ‘‘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 (IV) 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 or more of the undivided interests’’ 

23 and inserting ‘‘an undivided interest’’; and 

24 (E) by adding at the end of the section: 
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1 ‘‘(d) AUTHORIZATION OF APPROPRIATIONS.—There 

2 is authorized to be appropriated to carry out this section 

3 $75,000,000 for fiscal year 2005, $95,000,000 for fiscal 

4 year 2006, and $145,000,000 for each of fiscal years 2007 

5 through 2010.’’; 

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

7 subsection (b) and inserting the following: 

8 ‘‘(b) APPLICATION OF REVENUE FROM ACQUIRED

9 INTERESTS TO LAND CONSOLIDATION PROGRAM.— 

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

11 lien on any revenue accruing to an interest described 

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

13 removal of the lien under paragraph (3), (4), or (5). 

14 ‘‘(2) REQUIREMENTS.— 

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

16 removes a lien from an interest in land under 

17 paragraph (1)— 

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

19 right-of-way, or other document evidencing 

20 a transaction affecting the interest shall 

21 contain a clause providing that all revenue 

22 derived from the interest shall be paid to 

23 the Secretary; and 

24 ‘‘(ii) any revenue derived from any in25 terest acquired by the Secretary in accord-
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1 ance with section 213 shall be deposited in 

2 the fund created under section 216. 

3 ‘‘(B) APPROVAL OF TRANSACTIONS.—Not4 withstanding section 16 of the Act of June 18, 

5 1934 (commonly known as the ‘Indian Reorga6 nization Act’) (25 U.S.C. 476), or any other 

7 provision of law, until the Secretary removes a 

8 lien from an interest in land under paragraph 

9 (1), the Secretary may approve a transaction 

10 covered under this section on behalf of an In11 dian tribe. 

12 ‘‘(3) REMOVAL OF LIENS AFTER FINDINGS.— 

13 The Secretary may remove a lien referred to in 

14 paragraph (1) if the Secretary makes a finding 

15 that— 

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

17 from which revenue accrues under the lien will 

18 equal or exceed the projected revenues for the 

19 parcel of land involved; 

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

21 will take an unreasonable period of time for the 

22 parcel of land to generate revenue that equals 

23 the purchase price paid for the interest; or 

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

25 land or commodities associated with the parcel 
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1 of land make it likely that the interest will be 

2 unable to generate revenue that equals the pur3 chase price paid for the interest in a reasonable 

4 time. 

5 ‘‘(4) REMOVAL OF LIENS UPON PAYMENT INTO

6 THE ACQUISITION FUND.—The Secretary shall re7 move a lien referred to in paragraph (1) upon pay8 ment of an amount equal to the purchase price of 

9 that interest in land into the Acquisition Fund cre10 ated under section 2215 of this title, except where 

11 the tribe with jurisdiction over such interest in land 

12 authorizes the Secretary to continue the lien in order 

13 to generate additional acquisition funds. 

14 ‘‘(5) OTHER REMOVAL OF LIENS.—The Sec15 retary may, in consultation with tribal governments 

16 and other entities described in section 213(b)(3), pe17 riodically remove liens referred to in paragraph (1) 

18 from interests in land acquired by the Secretary.’’; 

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

20 sentence, by striking ‘‘section 2212 of this title’’ and 

21 inserting ‘‘this Act’’; 

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

23 (A) in subsection (a), by striking para24 graph (2) and inserting the following: 
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1 ‘‘(2) collect all revenues received from the lease, 

2 permit, or sale of resources from interests acquired 

3 under section 213 or paid by Indian landowners 

4 under section 213.’’; and 

5 (B) in subsection (b)— 

6 (i) in paragraph (1)— 

7 (I) in the matter preceding sub8 paragraph (A), by striking ‘‘Subject 

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

10 ‘‘All’’; 

11 (II) in subparagraph (A), by 

12 striking ‘‘and’’ at the end; 

13 (III) in subparagraph (B), by 

14 striking the period at the end and in15 serting ‘‘; and’’; and 

16 (IV) by adding at the end the fol17 lowing: 

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

19 on the reservation from which the income was 

20 derived.’’; and 

21 (ii) by striking paragraph (2) and in22 serting the following: 

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

24 the revenue deposited in the Acquisition Fund under 

25 paragraph (1) to acquire some or all of the undi-
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1 vided interests in any parcels of land in accordance 

2 with section 205.’’; 

3 (9) in section 217 (25 U.S.C. 2216)— 

4 (A) in subsection (b)(1), by striking sub5 paragraph (B) and inserting a new subpara6 graph (B) as follows: 

7 ‘‘(B) WAIVER OF REQUIREMENT.—The re8 quirement for an estimate of value under sub9 paragraph (A) may be waived in writing by an 

10 owner of a trust or restricted interest in land 

11 either selling, exchanging, or conveying by gift 

12 deed for no or nominal consideration such inter13 est— 

14 ‘‘(i) to an Indian person who is the 

15 owner’s spouse, brother, sister, lineal an16 cestor, lineal descendant, or collateral heir; 

17 or 

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

19 tribe with jurisdiction over the subject par20 cel of land, where the grantor owns a frac21 tional interest that represents 5 percent or 

22 less of the parcel.’’; 

23 (B) in subsection (e), by striking the mat24 ter preceding paragraph (1), and inserting 

25 ‘‘Notwithstanding any other provision of law, 
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1 the names and mailing addresses of the owners 

2 of any interest in trust or restricted lands, and 

3 information on the location of the parcel and 

4 the percentage of undivided interest owned by 

5 each individual shall, upon written request, be 

6 made available to’’; 

7 (C) in subsection (e)(1), by striking ‘‘In8 dian’’; 

9 (D) in subsection (e)(3), by striking ‘‘pro10 spective applicants for the leasing, use, or con11 solidation of’’ and inserting ‘‘any person that is 

12 leasing, using, or consolidating, or is applying 

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

14 (E) by striking subsection (f) and inserting 

15 the following: 

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

17 ‘‘(1) IN GENERAL.—Except as provided in para18 graph (2), before the Secretary approves an applica19 tion to terminate the trust status or remove the re20 strictions on alienation from a parcel of, or interest 

21 in, trust or restricted land, the Indian tribe with ju22 risdiction over the parcel shall have the oppor23 tunity— 

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

25 application; or 
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1 ‘‘(B) in a case in which there is no pur2 chase price offered, to acquire the interest in 

3 the parcel by paying the fair market value of 

4 the interest. 

5 ‘‘(2) EXCEPTION FOR FAMILY FARMS.— 

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

7 not apply to a parcel of, or interest in, trust or 

8 restricted land that is part of a family farm 

9 that is conveyed to a member of the family of 

10 a landowner (as defined in section 

11 206(c)(2)(A)(iv)) if the conveyance requires 

12 that in the event that the parcel or interest is 

13 offered for sale to an entity or person that is 

14 not a member of the family of the landowner, 

15 the Indian tribe with jurisdiction over the land 

16 shall be afforded the opportunity to purchase 

17 the interest pursuant to paragraph (1). 

18 ‘‘(B) APPLICABILITY OF OTHER PROVI19 SION.—Section 206(c)(2)(A) shall apply with 

20 respect to the recording and mortgaging of any 

21 trust or restricted land referred to in subpara22 graph (A).’’; 

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

24 2218(b)(1)(A)), by striking ‘‘100’’ and inserting 

25 ‘‘90’’; and 
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1 (11) in section 219, by adding at the end of the 

2 section: 

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

4 construed to supersede, repeal, or modify any general or 

5 specific statute authorizing the grant or approval of any 

6 type of land use transaction involving fractional interests 

7 in trust or restricted land.’’. 

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

9 Consolidation Act (25 U.S.C. 2201) is amended— 

10 (1) by striking paragraph (2) and inserting the 

11 following: 

12 ‘‘(2) ‘Indian’ means— 

13 ‘‘(A) any person who is a member of any 

14 Indian tribe, is eligible to become a member of 

15 any Indian tribe, or is an owner (as of the date 

16 of enactment of the American Indian Probate 

17 Reform Act of 2004) of a trust or restricted in18 terest in land; 

19 ‘‘(B) any person meeting the definition of 

20 Indian under the Indian Reorganization Act (25 

21 U.S.C. 479) and the regulations promulgated 

22 thereunder; and 

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

24 ownership of trust or restricted land in the 

25 State of California pursuant to section 207, any 
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1 person described in subparagraph (A) or (B) or 

2 any person who owns a trust or restricted inter3 est in a parcel of such land in that State.’’; 

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

5 following: 

6 ‘‘(4) ‘trust or restricted lands’ means lands, 

7 title to which is held by the United States in trust 

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

9 an Indian tribe or individual subject to a restriction 

10 by the United States against alienation; and ‘trust 

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

12 interest in a parcel of land’ means an interest in 

13 land, title to which is held in trust by the United 

14 States for an Indian tribe or individual, or which is 

15 held by an Indian tribe or individual subject to a re16 striction by the United States against alienation.’’; 

17 and 

18 (3) by adding at the end the following: 

19 ‘‘(6) ‘parcel of highly fractionated Indian land’ 

20 means a parcel of land that the Secretary, pursuant 

21 to authority under a provision of this Act, deter22 mines to have, as evidenced by the Secretary’s 

23 records at the time of the determination— 

24 ‘‘(A) 50 or more but less than 100 co-own25 ers of undivided trust or restricted interests, 
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1 and no 1 of such co-owners holds a total undi2 vided trust or restricted interest in the parcel 

3 that is greater than 10 percent of the entire un4 divided ownership of the parcel; or 

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

6 trust or restricted interests; 

7 ‘‘(7) ‘land’ means any real property, and in8 cludes within its meaning for purposes of this Act 

9 improvements permanently affixed to real property; 

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

11 person; 

12 ‘‘(9) ‘eligible heirs’ means, for purposes of sec13 tion 207 (25 U.S.C. 2206), any of a decedent’s chil14 dren, grandchildren, great grandchildren, full sib15 lings, half siblings by blood, and parents who are— 

16 ‘‘(A) Indian; or 

17 ‘‘(B) lineal descendents within 2 degrees of 

18 consanguinity of an Indian; or 

19 ‘‘(C) owners of a trust or restricted inter20 est in a parcel of land for purposes of inheriting 

21 by descent, renunciation, or consolidation agree22 ment under section 207 (25 U.S.C. 2206), an23 other trust or restricted interest in such parcel 

24 from the decedent; and 
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1 ‘‘(10) ‘without regard to waste’ means, with re2 spect to a life estate interest in land, that the holder 

3 of such estate is entitled to the receipt of all income, 

4 including bonuses and royalties, from such land to 

5 the exclusion of the remaindermen.’’. 

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

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

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

9 That the rules of intestate succession under the Indian 

10 Land Consolidation Act (25 U.S.C. 2201 et seq.) (includ11 ing a tribal probate code approved under that Act or regu12 lations promulgated under that Act) shall apply to that 

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

14 (d) TRANSFERS OF RESTRICTED INDIAN LAND.— 

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

16 is amended in the first proviso by— 

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

18 follows through ‘‘or in which the subject matter of 

19 the corporation is located,’’; 

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

21 Land Consolidation Act’’ and all that follows 

22 through the colon; and 

23 (3) inserting ‘‘in accordance with the Indian 

24 Land Consolidation Act (25 U.S.C. 2201 et seq.) 
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1 (including a tribal probate code approved under that 

2 Act or regulations promulgated under that Act):’’. 

3 (e) ESTATE PLANNING.— 

4 (1) CONDUCT OF ACTIVITIES.—Section 

5 207(f)(1) of the Indian Land Consolidation Act (25 

6 U.S.C. 2206) is amended by striking paragraph (1) 

7 and inserting the following: 

8 ‘‘(1) IN GENERAL.— 

9 ‘‘(A) The activities conducted under this 

10 subsection shall be conducted in accordance 

11 with any applicable— 

12 ‘‘(i) tribal probate code; or 

13 ‘‘(ii) tribal land consolidation plan. 

14 ‘‘(B) The Secretary shall provide estate 

15 planning assistance in accordance with this sub16 section, to the extent amounts are appropriated 

17 for such purpose.’’. 

18 (2) REQUIREMENTS.—Section 207(f)(2) of the 

19 Indian Land Consolidation Act (25 U.S.C. 

20 2206(f)(2)) is amended by striking ‘‘and’’ at the end 

21 of subparagraph (A), redesignating subparagraph 

22 (B) as subparagraph (D), and adding the following: 

23 ‘‘(B) dramatically increase the use of wills 

24 and other methods of devise among Indian 

25 landowners; 
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1 ‘‘(C) substantially reduce the quantity and 

2 complexity of Indian estates that pass intestate 

3 through the probate process, while protecting 

4 the rights and interests of Indian landowners; 

5 and’’. 

6 (3) PROBATE CODE DEVELOPMENT AND LEGAL

7 ASSISTANCE GRANTS.—Section 207(f)(3) of the In8 dian Land Consolidation Act (25 U.S.C. 2206(f)(3)) 

9 is amended by striking paragraph (3) and inserting 

10 the following: 

11 ‘‘(3) PROBATE CODE DEVELOPMENT AND

12 LEGAL ASSISTANCE GRANTS.—In carrying out this 

13 section, the Secretary may award grants to— 

14 ‘‘(A) Indian tribes, for purposes of tribal 

15 probate code development and estate planning 

16 services to tribal members; 

17 ‘‘(B) organizations that provide legal as18 sistance services for Indian tribes, Indian orga19 nizations, and individual owners of interests in 

20 trust or restricted lands that are qualified as 

21 nonprofit organizations under section 501(c)(3) 

22 of the Internal Revenue Code of 1986 and pro23 vide such services pursuant to Federal poverty 

24 guidelines, for purposes of providing civil legal 

25 assistance to such Indian tribes, individual own-
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1 ers, and Indian organizations for the develop2 ment of tribal probate codes, for estate plan3 ning services or for other purposes consistent 

4 with the services they provide to Indians and 

5 Indian tribes; and 

6 ‘‘(C) in specific areas and reservations 

7 where qualified nonprofit organizations referred 

8 to in subparagraph (B) do not provide such 

9 legal assistance to Indian tribes, Indian organi10 zations, or individual owners of trust or re11 stricted land, to other providers of such legal 

12 assistance; 

13 that submit an application to the Secretary, in such 

14 form and manner as the Secretary may prescribe. 

15 ‘‘(4) AUTHORIZATION FOR APPROPRIATIONS.— 

16 There is authorized to be appropriated such sums as 

17 may be necessary to carry out the provisions of 

18 paragraph (3).’’. 

19 (4) NOTIFICATION TO LANDOWNERS.—Section 

20 207 of the Indian Land Consolidation Act (25 

21 U.S.C. 2206) is amended by adding at the end the 

22 following: 

23 ‘‘(l) NOTIFICATION TO LANDOWNERS.—After receiv24 ing written request by any owner of a trust or restricted 

25 interest in land, the Secretary shall provide to such land-
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1 owner the following information with respect to each tract 

2 of trust or restricted land in which the landowner has an 

3 interest: 

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

5 ‘‘(2) The identity of each other co-owner of in6 terests in the parcel of land. 

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

8 of an interest in the tract. 

9 ‘‘(m) PILOT PROJECT FOR THE MANAGEMENT OF

10 TRUST ASSETS OF INDIAN FAMILIES AND RELATIVES.— 

11 ‘‘(1) DEVELOPMENT PILOT PROJECT.—The 

12 Secretary shall consult with tribes, individual land13 owner organizations, Indian advocacy organizations, 

14 and other interested parties to— 

15 ‘‘(A) develop a pilot project for the cre16 ation of legal entities such as private or family 

17 trusts, partnerships corporations, or other orga18 nizations to improve, facilitate, and assist in the 

19 efficient management of interests in trust or re20 stricted lands or funds owned by Indian family 

21 members and relatives; and 

22 ‘‘(B) develop proposed rules, regulations, 

23 and guidelines to implement the pilot project, 

24 including— 
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1 ‘‘(i) the criteria for establishing such 

2 legal entities; 

3 ‘‘(ii) reporting and other requirements 

4 that the Secretary determines to be appro5 priate for administering such entities; and 

6 ‘‘(iii) provisions for suspending or re7 voking the authority of an entity to engage 

8 in activities relating to the management of 

9 trust or restricted assets under the pilot 

10 project in order to protect the interests of 

11 the beneficial owners of such assets. 

12 ‘‘(2) PRIMARY PURPOSES; LIMITATION; AP13 PROVAL OF TRANSACTIONS; PAYMENTS BY SEC14 RETARY.— 

15 ‘‘(A) PURPOSES.—The primary purpose of 

16 any entity organized under the pilot project 

17 shall be to improve, facilitate, and assist in the 

18 management of interests in trust or restricted 

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

20 of the purposes of this Act. 

21 ‘‘(B) LIMITATION.—The organization or 

22 activities of any entity under the pilot project 

23 shall not be construed to impair, impede, re24 place, abrogate, or modify in any respect the 

25 trust duties or responsibilities of the Secretary, 
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1 nor shall anything in this subsection or in any 

2 rules, regulations, or guidelines developed under 

3 this subsection enable any private or family 

4 trustee of trust or restricted interests in land to 

5 exercise any powers over such interests greater 

6 than that held by the Secretary with respect to 

7 such interests. 

8 ‘‘(C) SECRETARIAL APPROVAL OF TRANS9 ACTIONS.—Any transaction involving the lease, 

10 use, mortgage or other disposition of trust or 

11 restricted land or other trust assets adminis12 tered by or through an entity under the pilot 

13 project shall be subject to approval by the Sec14 retary in accordance with applicable Federal 

15 law. 

16 ‘‘(D) PAYMENTS.—The Secretary shall 

17 have the authority to make payments of income 

18 and revenues derived from trust or restricted 

19 land or other trust assets administered by or 

20 through an entity participating in the pilot 

21 project directly to the entity, in accordance with 

22 requirements of the regulations adopted pursu23 ant to this subsection. 

24 ‘‘(3) LIMITATIONS ON PILOT PROJECT.— 
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1 ‘‘(A) NUMBER OF ORGANIZATIONS.—The 

2 number of entities established under the pilot 

3 project authorized by this subsection shall not 

4 exceed 30. 

5 ‘‘(B) REGULATIONS REQUIRED.—No entity 

6 shall commence activities under the pilot project 

7 authorized by this subsection until the Sec8 retary has adopted final rules and regulations 

9 under paragraph (1)(B). 

10 ‘‘(4) REPORT TO CONGRESS.—Prior to the expi11 ration of the pilot project provided for under this 

12 subsection, the Secretary shall submit a report to 

13 Congress stating— 

14 ‘‘(A) a description of the Secretary’s con15 sultation with Indian tribes, individual land16 owner associations, Indian advocacy organiza17 tions, and other parties consulted with regard18 ing the development of rules and regulations for 

19 the creation and management of interests in 

20 trust and restricted lands under the pilot 

21 project; 

22 ‘‘(B) the feasibility of accurately moni23 toring the performance of legal entities such as 

24 those involved in the pilot project, and the ef-
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1 fectiveness of such entities as mechanisms to 

2 manage and protect trust assets; 

3 ‘‘(C) the impact that the use of entities 

4 such as those in the pilot project may have with 

5 respect to the accomplishment of the goals of 

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

7 2201 et seq.); and 

8 ‘‘(D) any recommendations that the Sec9 retary may have regarding whether to adopt a 

10 permanent program as a management and con11 solidation measure for interests in trust or re12 stricted lands. 

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

14 to determine the heirs to trust or restricted property, or 

15 making a decision determining such heirs, the Secretary 

16 shall seek to provide actual written notice of the pro17 ceedings to all heirs. Such efforts shall include— 

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

19 Federal records, including telephone and address di20 rectories and including electronic search services or 

21 directories; 

22 ‘‘(2) an inquiry with family members and co23 heirs of the property; 
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1 ‘‘(3) an inquiry with the tribal government of 

2 which the owner is a member, and the tribal govern3 ment with jurisdiction over the property, if any; and 

4 ‘‘(4) if the property is of a value greater than 

5 $2,000, engaging the services of an independent 

6 firm to conduct a missing persons search. 

7 ‘‘(o) MISSING HEIRS.— 

8 ‘‘(1) For purposes of this subsection and sub9 section (m), an heir may be presumed missing if— 

10 ‘‘(A) such heir’s whereabouts remain un11 known 60 days after completion of notice ef12 forts under subsection (m); and 

13 ‘‘(B) in the proceeding to determine a de14 cedent’s heirs, the Secretary finds that the heir 

15 has had no contact with other heirs of the dece16 dent, if any, or with the Department relating to 

17 trust or restricted land or other trust assets at 

18 any time during the 6-year period preceding the 

19 hearing to determine heirs. 

20 ‘‘(2) Before the date for declaring an heir miss21 ing, any person may request an extension of time to 

22 locate such heir. The Secretary shall grant a reason23 able extension of time for good cause. 

24 ‘‘(3) An heir shall be declared missing only 

25 after a review of the efforts made in the heirship 
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1 proceeding and a finding has been made that this 

2 subsection has been complied with. 

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

4 to this subsection shall be deemed to have pre5 deceased the decedent for purposes of descent and 

6 devise of trust or restricted land and trust person7 alty within that decedent’s estate.’’. 

8 SEC. 7. ANNUAL NOTICE AND FILING REQUIREMENT FOR 

9 OWNERS OF INTERESTS IN TRUST OR RE10 STRICTED LANDS. 

11 The Indian Land Consolidation Act (25 U.S.C. 2201 

12 et seq.) is amended by adding at the end the following: 

13 ‘‘SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHERE14 ABOUTS OF INTEREST OWNERS. 

15 ‘‘On at least an annual basis, the Secretary shall in16 clude along with other regular reports to owners of trust 

17 or restricted interests in land and individual Indian money 

18 account owners a change of name and address form by 

19 means of which the owner may confirm or update the own20 er’s name and address. The change of name and address 

21 form shall include a section in which the owner may con22 firm and update the owner’s name and address.’’. 

23 SEC. 8. NOTICE; EFFECTIVE DATE. 

24 (a) NOTICE.— 
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1 (1) IN GENERAL.—Not later than 180 days 

2 after the date of enactment of this Act, the Sec3 retary shall notify Indian tribes and owners of trust 

4 or restricted lands of the amendments made by this 

5 Act. 

6 (2) SPECIFICATIONS.—The notice required 

7 under paragraph (1) shall be designed to inform In8 dian owners of trust or restricted land of— 

9 (A) the effect of this Act and the amend10 ments made by this Act, with emphasis on the 

11 effect of the provisions of this Act and the 

12 amendments made by this Act, on the testate 

13 disposition and intestate descent of their inter14 ests in trust or restricted land; 

15 (B) estate planning options available to the 

16 owners, including any opportunities for receiv17 ing estate planning assistance or advice; 

18 (C) the use of negotiated sales, gift deeds, 

19 land exchanges, and other transactions for con20 solidating the ownership of land; and 

21 (D) a toll-free telephone number to be used 

22 for obtaining information regarding the provi23 sions of this Act and any trust assets of such 

24 owners. 
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1 (3) REQUIREMENTS.—The Secretary shall pro2 vide the notice required under paragraph (1)— 

3 (A) by direct mail for those Indians with 

4 interests in trust and restricted lands for which 

5 the Secretary has an address for the interest 

6 holder; 

7 (B) through the Federal Register; 

8 (C) through local newspapers in areas with 

9 significant Indian populations, reservation 

10 newspapers, and newspapers that are directed 

11 at an Indian audience; and 

12 (D) through any other means determined 

13 appropriate by the Secretary. 

14 (4) CERTIFICATION.—After providing notice 

15 under this subsection, the Secretary shall— 

16 (A) certify that the requirements of this 

17 subsection have been met; and 

18 (B) publish notice of that certification in 

19 the Federal Register. 

20 (b) EFFECTIVE DATE.—Section 207 of the Indian 

21 Land Consolidation Act (25 U.S.C. 2206), except sub22 sections (e) and (f) of that section, shall not apply to the 

23 estate of an individual who dies before the date that is 

24 1 year after the date on which the Secretary makes the 

25 certification required under subsection (a)(4). 
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1 SEC. 9. SEVERABILITY. 

2 If any provision of this Act or of any amendment 

3 made by this Act, or the application of any such provision 

4 to any person or circumstance, is held to be invalid for 

5 any reason, the remainder of this Act and of amendments 

6 made by this Act, and the application of the provisions 

7 and of the amendments made by this Act to any other 

8 person or circumstance shall not be affected by such hold9 ing, except that each of subclauses (II), (III), and (IV) 

10 of section 205(d)(2)(I)(i) is deemed to be inseverable from 

11 the other 2, such that if any 1 of those 3 subclauses is 

12 held to be invalid for any reason, neither of the other 2 

13 of such subclauses shall be given effect. 

14 SEC. 10. REGULATIONS. 

15 The Secretary is authorized to adopt such regulations 

16 as may be necessary to implement the provisions of this 

17 Act. 

Passed the Senate June 2, 2004. 

Attest: EMILY J. REYNOLDS, 

Secretary.