II 

108TH CONGRESS 

1ST SESSION S. 1721

To amend the Indian Land Consolidation Act to improve provisions relating 

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

IN THE SENATE OF THE UNITED STATES 

OCTOBER 14, 2003

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

referred to the Committee on Indian Affairs 

A BILL

To amend the Indian Land Consolidation Act to improve 

provisions relating to probate of trust and restricted 

land, and for other purposes.

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘American Indian Pro5 bate Reform Act of 2003’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that—

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

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

10 U.S.C. 331 et seq.), which authorized the allotment 
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•S 1721 IS 

1 of Indian reservations, did not permit Indian allot2 ment owners to provide for the testamentary disposi3 tion of the land that was allotted to them; 

4 (2) that Act provided that allotments would de5 scend according to State law of intestate succession 

6 based on the location of the allotment; 

7 (3) the reliance of the Federal Government on 

8 the State law of intestate succession with respect to 

9 the descent of allotments has resulted in numerous 

10 problems affecting Indian tribes, members of Indian 

11 tribes, and the Federal Government, including 

12 (A) the increasingly fractionated ownership 

13 of trust and restricted land as that land is in14 herited by successive generations of owners as 

15 tenants in common; 

16 (B) the application of different rules of in17 testate succession to each interest of a decedent 

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

19 located within the boundaries of more than 1 

20 State, which application—

21 (i) makes probate planning unneces22 sarily difficult; and 

23 (ii) impedes efforts to provide probate 

24 planning assistance or advice; 
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1 (C) the absence of a uniform general pro2 bate code for trust and restricted land, which 

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

5 (D) the failure of Federal law to address 

6 or provide for many of the essential elements of 

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

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

10 restricted land (and heirs and devisees of 

11 owners); and 

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

14 (4) a uniform Federal probate code would like15 ly—

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

18 (B) facilitate efforts to provide probate 

19 planning assistance and advice; 

20 (C) facilitate intertribal efforts to produce 

21 tribal probate codes in accordance with section 

22 206 of the Indian Land Consolidation Act (25 

23 U.S.C. 2205); and 

24 (D) provide essential elements of general 

25 probate law that are not applicable on the date 
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1 of enactment of this Act to interests in trust or 

2 restricted land. 

3 SEC. 3. INDIAN PROBATE REFORM. 

4 (a) TESTAMENTARY DISPOSITION.—Section 207 of 

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

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

8 ‘‘(a) TESTAMENTARY DISPOSITION.—

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

10 TRUST OR RESTRICTED LAND.—

11 ‘‘(A) IN GENERAL.—Subject to any appli12 cable Federal law relating to the devise or de13 scent of trust or restricted land, or a tribal pro14 bate code approved by the Secretary in accord15 ance with section 206, the owner of an interest 

16 in trust or restricted land may devise such an 

17 interest to—

18 ‘‘(i) an Indian tribe with jurisdiction 

19 over the land; or 

20 ‘‘(ii) any Indian; or 

21 ‘‘(iii) any lineal descendant of the tes22 tator; or 

23 ‘‘(iv) any person who owns a pre24 existing undivided trust or restricted inter25 est in the same parcel of land; 
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1 in trust or restricted status. 

2 ‘‘(B) RULE OF INTERPRETATION.—Any 

3 devise of an interest in trust or restricted land 

4 or personal property to a devisee listed in sub5 paragraph (A) shall be considered to be a devise 

6 of the interest in trust or restricted status, un7 less—

8 ‘‘(i) language in the will clearly evi9 dences the testator’s intent that the inter10 est is to vest in the devisee as a fee inter11 est without restrictions; or 

12 ‘‘(ii) the interest devised is a life es13 tate. 

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

15 AS A LIFE ESTATE OR IN FEE.—

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

17 under any applicable Federal law, any interest 

18 in trust or restricted land that is not devised in 

19 accordance with paragraph (1) may be devised 

20 only—

21 ‘‘(i) as a life estate without regard to 

22 waste to any person, with the remainder 

23 being devised only in accordance with sub24 paragraph (B) or paragraph (1); or
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1 ‘‘(ii) except as provided in subpara2 graph (B), in fee to any person. 

3 ‘‘(B) LIMITATION.—Any interest in trust 

4 or restricted land that is subject to section 4 of 

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

6 be devised only in accordance with—

7 ‘‘(i) that section; 

8 ‘‘(ii) subparagraph (A)(i); or 

9 ‘‘(iii) paragraph (1). 

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

11 TRUST OR RESTRICTED PERSONAL PROPERTY.—

12 ‘‘(A) TRUST OR RESTRICTED PERSONAL

13 PROPERTY DEFINED.—The term ‘Trust or re14 stricted personal property’ as used in this sec15 tion includes—

16 ‘‘(i) all funds and securities of any 

17 kind which are held in trust in an indi18 vidual Indian money account or otherwise 

19 supervised for the decedent by the Sec20 retary; and 

21 ‘‘(ii) absent clear evidence to the con22 trary, all personal property permanently 

23 affixed to trust or restricted lands. 

24 ‘‘(B) IN GENERAL.—Subject to any appli25 cable Federal law relating to the devise or de-
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1 scent of such trust or restricted personal prop2 erty, or a tribal probate code approved by the 

3 Secretary in accordance with section 206, the 

4 owner of an interest in trust or restricted per5 sonal property may devise such an interest to 

6 any person or entity. 

7 ‘‘(C) MAINTENANCE AS TRUST OR RE8 STRICTED PERSONAL PROPERTY.—Except as 

9 provided in paragraph (1)(B), where an interest 

10 in trust or restricted personal property is de11 vised to a devisee listed in paragraph (1)(A), 

12 the Secretary shall maintain and continue to 

13 manage such interests as trust or restricted 

14 personal property. 

15 ‘‘(D) DIRECT DISBURSEMENT AND DIS16 TRIBUTION.—In the case of a devise of an in17 terest in trust or restricted personal property to 

18 a devisee not listed in paragraph (1)(A), the 

19 Secretary shall directly disburse and distribute 

20 such personal property to the devisee. 

21 ‘‘(4) INELIGIBLE DEVISEES OF TRUST OR RE22 STRICTED INTEREST; INVALID WILLS.—Any interest 

23 in trust or restricted land or personal property that 

24 is devised as a trust or restricted interest to a devi25 see not listed in subparagraph (A) of paragraph (1) 
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•S 1721 IS 

1 shall descend to the devisee as a fee interest. Any in2 terest in trust or restricted land or personal property 

3 that is not disposed of by a valid will shall descend 

4 in accordance with the applicable law of intestate 

5 succession as provided for in subsection (b).’’. 

6 (b) NONTESTAMENTARY DISPOSITION.—Section 207 

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

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

9 following: 

10 ‘‘(b) NONTESTAMENTARY DISPOSITION.—

11 ‘‘(1) RULES OF DESCENT.—Subject to any ap12 plicable Federal law relating to the devise or descent 

13 of trust or restricted property, any interest in trust 

14 or restricted property, including personal property, 

15 that is not disposed of by a valid will—

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

17 probate code that is approved in accordance 

18 with section 206; or 

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

20 restricted property to which such a code does 

21 not apply, shall descend in accordance with—

22 ‘‘(i) paragraphs (2) through (4); and 

23 ‘‘(ii) other applicable Federal law. 

24 ‘‘(2) RULES GOVERNING DESCENT OF ES25 TATE.—
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1 ‘‘(A) SURVIVING SPOUSE.—If there is a 

2 surviving spouse of the decedent, such spouse 

3 shall receive trust and restricted property in the 

4 estate as follows: 

5 ‘‘(i) If the decedent is survived by an 

6 heir described in subparagraph (B) (i), (ii), 

7 (iii), or (iv), the surviving spouse shall receive 1 8 ⁄3 of the trust or restricted personal 

9 property of the decedent and a life estate 

10 without regard to waste in the interests in 

11 trust or restricted lands of the decedent. 

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

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

14 surviving spouse shall receive all of the 

15 trust or restricted personal property of the 

16 decedent and a life estate without regard 

17 to waste in the trust or restricted lands. 

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

19 forth in subparagraph (B). 

20 ‘‘(B) INDIAN HEIRS.—Where there is no 

21 surviving spouse of the decedent, or there is a 

22 remainder pursuant to subparagraph (A), the 

23 estate or remainder of the decedent shall, sub24 ject to subparagraph (A), pass as follows: 
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•S 1721 IS 

1 ‘‘(i) To the Indian children of the de2 cedent (or if 1 or more of those Indian 

3 children do not survive the decedent, the 

4 Indian children of the deceased child of the 

5 decedent, by right of representation, if 

6 such Indian children of the child survive 

7 the decedent) in equal shares. 

8 ‘‘(ii) If the property does not pass 

9 under clause (i), to the surviving Indian 

10 great-grandchildren of the decedent in 

11 equal shares. 

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

13 under clause (i) or (ii), to the surviving In14 dian brothers and sisters who are full sib15 lings of the decedent or who are half-sib16 lings by blood and not by marriage, in 

17 equal shares. 

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

19 under clause (i), (ii), or (iii), to the Indian 

20 parent or parents of the decedent in equal 

21 shares. 

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

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

24 Indian tribe with jurisdiction over the in25 terests in trust or restricted lands;
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1 except that notwithstanding clause (v), an In2 dian co-owner (including the Indian tribe re3 ferred to in clause (v)) of a parcel of trust or 

4 restricted land may acquire an interest that 

5 would otherwise descend under that clause by 

6 paying into the estate of the decedent, before 

7 the close of the probate of the estate, the fair 

8 market value of the interest in the land; if more 

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

10 interest, the highest bidder shall acquire the in11 terest. 

12 ‘‘(C) NO INDIAN TRIBE.—If there is no In13 dian tribe with jurisdiction over the interests in 

14 trust or restricted lands that would otherwise 

15 descend under subparagraph (B)(v), then such 

16 interests shall be divided equally among co-own17 ers of trust or restricted interests in the parcel; 

18 if there are no such co-owners, then the Sec19 retary shall accumulate and hold such interests 

20 in trust or restricted status for the Indian tribe 

21 or tribes from which the decedent descended. 

22 ‘‘(3) RIGHT OF REPRESENTATION.—

23 ‘‘(A) IN GENERAL.—Subject to subpara24 graph (B)—
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1 ‘‘(i) the interests passing to children 

2 and grandchildren of a decedent under 

3 paragraph (2) shall be divided into as 

4 many equal shares as there are surviving 

5 children of the decedent, deceased children 

6 who have died before the decedent without 

7 issue, and deceased children who have died 

8 before the decedent and have left grand9 children who survive the decedent; and 

10 ‘‘(ii) 1 share shall pass to each sur11 viving child of the decedent and 1 share 

12 shall pass equally divided among the sur13 viving children of a deceased child. 

14 ‘‘(B) EXCEPTION FOR HEIRS OF EQUAL

15 CONSANGUINITY.—Notwithstanding subpara16 graph (A), when the persons entitled to take 

17 under subparagraph (B)(i) of paragraph (2) are 

18 all in the same degree of consanguinity to the 

19 decedent, they shall take in equal shares. 

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

21 In the case of intestate succession under this sub22 section, if an individual fails to survive the decedent 

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

24 convincing evidence—
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1 ‘‘(A) the individual shall be deemed to have 

2 predeceased the decedent for the purpose of in3 testate succession; and 

4 ‘‘(B) the heirs of the decedent shall be de5 termined in accordance with this section. 

6 ‘‘(5) STATUS OF INHERITED INTERESTS.—A 

7 trust or restricted interest in land or personal prop8 erty that descends under the provisions of this sub9 section (not including any interest in land or per10 sonal property passing to a surviving spouse under 

11 paragraph (2)(A)) shall continue to have the same 

12 trust or restricted status in the hands of the heir as 

13 such interest had immediately prior to the dece14 dent’s death.’’. 

15 (c) Section 207(c) of the Indian Land Consolidation 

16 Act (25 U.S.C. 2206 (c)) is amended by striking all that 

17 follows the heading, ‘‘JOINT TENANCY; RIGHT OF SURVI18 VORSHIP’’, and inserting the following: ‘‘If a testator de19 vises interests in the same parcel of trust or restricted 

20 lands to more than 1 person, in the absence of express 

21 language in the devise to the contrary, the devise shall 

22 be presumed to create joint tenancy with the right of sur23 vivorship in the interests involved.’’. 
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•S 1721 IS 

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

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

3 amended by adding at the end the following: 

4 ‘‘(h) APPLICABLE FEDERAL LAW.—

5 ‘‘(1) IN GENERAL.—Any references in sub6 sections (a) and (b) to applicable Federal law in7 clude—

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

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

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

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

12 and 

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

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

15 section amends or otherwise affects the application 

16 of any law described in paragraph (1), or any other 

17 Federal law that provides for the devise and descent 

18 of any trust or restricted land located on a specific 

19 Indian reservation or for the devise and descent of 

20 the allotted lands of a specific tribe or specific 

21 tribes. 

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

23 a contrary intent, and except as otherwise provided under 

24 this Act or a tribal probate code approved by the Secretary 

25 pursuant to section 206, wills shall be construed as to 
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1 trust and restricted land and personal property in accord2 ance with the following rules: 

3 ‘‘(1) CONSTRUCTION THAT WILL PASSES ALL

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

5 trust and restricted land and personal property 

6 which the testator owned at his death, including any 

7 such land or property acquired after the execution of 

8 his will. 

9 ‘‘(2) CLASS GIFTS.—

10 ‘‘(A) Terms of relationship that do not dif11 ferentiate relationships by blood from those by 

12 affinity, such as ‘uncles’, ‘aunts’, ‘nieces’ or 

13 ‘nephews’, are construed to exclude relatives by 

14 affinity. Terms of relationship that do not dif15 ferentiate relationships by the half blood from 

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

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

18 include both types of relationships. 

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

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

21 devise of trust or restricted land or trust funds 

22 to the testator’s or another designated person’s 

23 ‘heirs’, ‘next of kin’, ‘relatives’, or ‘family’ shall 

24 mean those persons, including the spouse, who 

25 would be entitled to take under the provisions
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1 of this Act for nontestamentary disposition. The 

2 class is to be ascertained as of the date of the 

3 testator’s death. 

4 ‘‘(C) TIME FOR ASCERTAINING CLASS.—In 

5 construing a devise to a class other than a class 

6 described in subparagraph (B), the class shall 

7 be ascertained as of the time the devise is to 

8 take effect in enjoyment. The surviving issue of 

9 any member of the class who is then dead shall 

10 take by right of representation the share which 

11 their deceased ancestor would have taken. 

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

13 SIMILAR PHRASES.—In any devise under this chap14 ter, the words ‘die without issue’, ‘die without leav15 ing issue’, ‘have no issue’, or words of a similar im16 port shall be construed to mean that an individual 

17 had no lineal descendants in his lifetime or at his 

18 death, and not that there will be no lineal descend19 ants at some future time. 

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

21 construing provisions of this chapter relating to 

22 lapsed and void devises, and in construing a devise 

23 to a person or persons described by relationship to 

24 the testator or to another, a person born out of wed-
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1 lock shall be considered the child of the natural 

2 mother and also of the natural father. 

3 ‘‘(5) LAPSED AND VOID DEVISES AND LEG4 ACIES; SHARES NOT IN RESIDUE.—Where a devise of 

5 property that is not part of the residuary estate fails 

6 or becomes void because—

7 ‘‘(A) the beneficiary has predeceased the 

8 testator; 

9 ‘‘(B) the devise has been revoked by the 

10 testator; or 

11 ‘‘(C) the devise has been disclaimed by the 

12 beneficiary; 

13 the property shall, if not otherwise expressly pro14 vided for under this Act or a tribal probate code, 

15 pass under the residuary clause, if any, contained in 

16 the will. 

17 ‘‘(6) LAPSED AND VOID DEVISES AND LEG18 ACIES; SHARES IN RESIDUE.—When a devise as de19 scribed in paragraph (7) shall be included in a resid20 uary clause of the will and shall not be available to 

21 the issue of the devisee, and if the disposition shall 

22 not be otherwise expressly provided for by a tribal 

23 probate code, it shall pass to the other residuary 

24 devisees, if any, in proportion to their respective 

25 shares or interests in the residue. 
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•S 1721 IS 

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

2 cemetery plot owned by the testator at his decease 

3 is not mentioned in the decedent’s will, the owner4 ship of the plot shall descend to his heirs as if he 

5 had died intestate. 

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

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

8 having survived the decedent if the child lives at 

9 least 120 hours after its birth. 

10 ‘‘(9) ADVANCEMENTS OF TRUST OR RE11 STRICTED PERSONAL PROPERTY DURING LIFETIME; 

12 EFFECT ON DISTRIBUTION OF ESTATE.—

13 ‘‘(A) The trust or restricted personal prop14 erty of a decedent who dies intestate as to all 

15 or a portion of his or her estate, given during 

16 the decedent’s lifetime to an heir of the dece17 dent, shall be treated as an advancement 

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

19 decedent declared in a contemporaneous writ20 ing, or the heir acknowledged in writing, that 

21 the gift is an advancement or is to be taken 

22 into account in computing the division and dis23 tribution of the decedent’s intestate estate. 

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

25 trust or restricted personal property advanced 
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•S 1721 IS 

1 during the decedent’s lifetime is valued as of 

2 the time the heir came into possession or enjoy3 ment of the property or as of the time of the 

4 decedent’s death, whichever occurs first. 

5 ‘‘(C) If the recipient of the property 

6 predeceases the decedent, the property is not 

7 treated as an advancement or taken into ac8 count in computing the division and distribution 

9 of the decedent’s intestate estate unless the de10 cedent’s contemporaneous writing provides oth11 erwise. 

12 ‘‘(10) HEIRS RELATED TO DECEDENT

13 THROUGH 2 LINES; SINGLE SHARE.—A person who 

14 is related to the decedent through 2 lines of relation15 ship is entitled to only a single share based on the 

16 relationship that would entitle the person to the 

17 larger share. 

18 ‘‘(j) HEIRSHIP BY KILLING.—

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

20 this subsection, ‘heir by killing’ means any person 

21 who participates, either as a principal or as an ac22 cessory before the fact, in the willful and unlawful 

23 killing of the decedent. 

24 ‘‘(2) NO ACQUISITION OF PROPERTY BY KILL25 ING.—Subject to any applicable Federal law relating 
20

•S 1721 IS 

1 to the devise or descent of trust or restricted prop2 erty, no heir by killing shall in any way acquire any 

3 interests in trust or restricted property as the result 

4 of the death of the decedent, but such property shall 

5 pass in accordance with this subsection. 

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

7 SURVIVORSHIP.—The heir by killing shall be deemed 

8 to have predeceased the decedent as to decedent’s in9 terests in trust or restricted property which would 

10 have passed from the decedent or his estate to the 

11 heir by killing—

12 ‘‘(A) under intestate succession under this 

13 chapter; 

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

15 otherwise provided for; 

16 ‘‘(C) as the surviving spouse; 

17 ‘‘(D) by devise; 

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

19 ‘‘(F) as a survivorship interest; and 

20 ‘‘(G) as a contingent remainder or execu21 tory or other future interest. 

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

23 JOINT OBLIGEES.—

24 ‘‘(A) Any trust or restricted land or per25 sonal property held by only the heir by killing
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•S 1721 IS 

1 and the decedent as joint tenants, joint owners, 

2 or joint obligees shall pass upon the death of 

3 the decedent to his or her estate, as if the heir 

4 by killing had predeceased the decedent. 

5 ‘‘(B) As to trust or restricted property 

6 held jointly by 3 or more persons, including 

7 both the heir by killing and the decedent, any 

8 income which would have accrued to the heir by 

9 killing as a result of the death of the decedent 

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

11 heir by killing had predeceased the decedent 

12 and any surviving joint tenants. 

13 ‘‘(C) Notwithstanding any other provision 

14 of this subsection, the decedent’s interest in 

15 trust or restricted property that is held in a 

16 joint tenancy with the right of survivorship 

17 shall be severed from the joint tenancy as 

18 though the property held in the joint tenancy 

19 were to be severed and distributed equally 

20 among the joint tenants and the decedent’s in21 terest shall pass to his estate; the remainder of 

22 the interests shall remain in joint tenancy with 

23 right of survivorship among the surviving joint 

24 tenants. 
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•S 1721 IS 

1 ‘‘(5) LIFE ESTATE FOR THE LIFE OF AN2 OTHER.—If the estate is held by a third person 

3 whose possession expires upon the death of the dece4 dent, it shall remain in such person’s hands for the 

5 period of the life expectancy of the decedent. 

6 ‘‘(6) PREADJUDICATION RULE.—

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

8 charged, whether by indictment, information, or 

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

10 State, with voluntary manslaughter or homicide 

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

12 and all trust or restricted land or personal 

13 property that would otherwise pass to that per14 son from the decedent’s estate shall not pass or 

15 be distributed by the Secretary until the 

16 charges have been resolved in accordance with 

17 the provisions of this paragraph. 

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

19 dismissal or withdrawal of the charge, or upon 

20 a verdict of not guilty, such land and funds 

21 shall pass as if no charge had been filed or 

22 made. 

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

24 such person, the trust and restricted land and 
23

•S 1721 IS 

1 personal property in the estate shall pass in ac2 cordance with this subsection. 

3 ‘‘(7) BROAD CONSTRUCTION; POLICY OF SUB4 SECTION.—This subsection shall not be considered 

5 penal in nature, but shall be construed broadly in 

6 order to effect the policy that no person shall be al7 lowed to profit by his own wrong, wherever com8 mitted. 

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

10 ‘‘(1) SCOPE.—The provisions of this subsection 

11 shall apply only to estates that are subject to pro12 bate under the provisions of subsections (a) and (b). 

13 ‘‘(2) PRETERMITTED SPOUSES AND CHIL14 DREN.—

15 ‘‘(A) SPOUSES.—

16 ‘‘(i) IN GENERAL.—Except as pro17 vided in clause (ii), if the surviving spouse 

18 of a testator married the testator after the 

19 testator executed the will of the testator, 

20 the surviving spouse shall receive the intes21 tate share in trust or restricted land that 

22 the spouse would have received if the tes23 tator had died intestate. 
24

•S 1721 IS 

1 ‘‘(ii) EXCEPTION.—Clause (i) shall 

2 not apply to an interest in trust or re3 stricted land where—

4 ‘‘(I) the will of a testator is exe5 cuted before the date of enactment of 

6 this subparagraph; 

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

8 is a non-Indian; and 

9 ‘‘(bb) the testator devised the in10 terests in trust or restricted land of 

11 the testator to 1 or more Indians; 

12 ‘‘(III) it appears, based on an ex13 amination of the will or other evi14 dence, that the will was made in con15 templation of the marriage of the tes16 tator to the surviving spouse; 

17 ‘‘(IV) the will expresses the in18 tention that the will is to be effective 

19 notwithstanding any subsequent mar20 riage; or 

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

22 the spouse by a transfer of funds or 

23 property outside the will; and 

24 ‘‘(bb) an intent that the transfer 

25 be in lieu of a testamentary provision 
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•S 1721 IS 

1 is demonstrated by statements of the 

2 testator or through a reasonable infer3 ence based on the amount of the 

4 transfer or other evidence. 

5 ‘‘(iii) SPOUSES MARRIED AT THE TIME

6 OF THE WILL.—Should the surviving 

7 spouse of the testator be omitted from the 

8 will of the testator, the surviving spouse 

9 shall be treated, for purposes of trust or 

10 restricted land or personal property in the 

11 testator’s estate, as though there was no 

12 will under the provisions of section 

13 207(b)(2)(A) if—

14 ‘‘(I) the testator and surviving 

15 spouse were continuously married 

16 without legal separation for the 10-

17 year period preceding the decedent’s 

18 death; 

19 ‘‘(II) the testator and surviving 

20 spouse have a surviving child who is 

21 the child of the testator; 

22 ‘‘(III) the surviving spouse has 

23 made substantial payments on or im24 provements to the trust or restricted 

25 land in such estate; or
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•S 1721 IS 

1 ‘‘(IV) the surviving spouse is 

2 under a binding obligation to continue 

3 making loan payments for the trust or 

4 restricted land for a substantial period 

5 of time; 

6 except that if there is evidence that the 

7 testator adequately provided for the sur8 viving spouse and any minor children by a 

9 transfer of funds or property outside of the 

10 will, this clause shall not apply. 

11 ‘‘(iv) DEFINED TERMS.—The terms 

12 ‘substantial payments or improvements’ 

13 and ‘substantial period of time’ as used in 

14 subparagraph (A)(iii) (III) and (IV) shall 

15 have the meanings given to them in the 

16 regulations adopted by the Secretary under 

17 the provisions of this Act. 

18 ‘‘(B) CHILDREN.—

19 ‘‘(i) IN GENERAL.—If a testator exe20 cuted the will of the testator before the 

21 birth or adoption of 1 or more children of 

22 the testator, and the omission of the chil23 dren from the will is a product of inadvert24 ence rather than an intentional omission, 

25 the children shall share in the intestate in-
27

•S 1721 IS 

1 terests of the decedent in trust or re2 stricted land as if the decedent had died 

3 intestate. 

4 ‘‘(ii) ADOPTED HEIRS.—Any person 

5 recognized as an heir by virtue of adoption 

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

7 372a), shall be treated as the child of a de8 cedent under this subsection. 

9 ‘‘(iii) ADOPTED-OUT CHILDREN.—

10 ‘‘(I) IN GENERAL.—For purposes 

11 of this Act, an adopted person shall 

12 not be considered the child or issue of 

13 his natural parents, except in distrib14 uting the estate of a natural kin, 

15 other than the natural parent, who 

16 has maintained a family relationship 

17 with the adopted person. If a natural 

18 parent shall have married the adopt19 ing parent, the adopted person for 

20 purposes of inheritance by, from and 

21 through him shall also be considered 

22 the issue of such natural parent. 

23 ‘‘(II) ELIGIBLE HEIR PURSUANT

24 TO OTHER FEDERAL LAW OR TRIBAL

25 LAW.—Notwithstanding the provisions 
28

•S 1721 IS 

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

2 Federal laws and laws of the Indian 

3 tribe with jurisdiction over the trust 

4 or restricted land may otherwise de5 fine the inheritance rights of adopted6 out children. 

7 ‘‘(3) DIVORCE.—

8 ‘‘(A) SURVIVING SPOUSE.—

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

10 is divorced from a decedent, or whose mar11 riage to the decedent has been annulled, 

12 shall not be considered to be a surviving 

13 spouse unless, by virtue of a subsequent 

14 marriage, the individual is married to the 

15 decedent at the time of death of the dece16 dent. 

17 ‘‘(ii) SEPARATION.—A decree of sepa18 ration that does not dissolve a marriage, 

19 and terminate the status of husband and 

20 wife, shall not be considered a divorce for 

21 the purpose of this subsection. 

22 ‘‘(iii) NO EFFECT ON ADJUDICA23 TIONS.—Nothing in clause (i) prevents an 

24 entity responsible for adjudicating an in25 terest in trust or restricted land from giv-
29

•S 1721 IS 

1 ing effect to a property right settlement if 

2 1 of the parties to the settlement dies be3 fore the issuance of a final decree dis4 solving the marriage of the parties to the 

5 property settlement. 

6 ‘‘(B) EFFECT OF SUBSEQUENT DIVORCE

7 ON A WILL OR DEVISE.—

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

9 a will, a testator is divorced or the mar10 riage of the testator is annulled, as of the 

11 effective date of the divorce or annulment, 

12 any disposition of interests in trust or re13 stricted land made by the will to the 

14 former spouse of the testator shall be con15 sidered to be revoked unless the will ex16 pressly provides otherwise. 

17 ‘‘(ii) PROPERTY.—Property that is 

18 prevented from passing to a former spouse 

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

20 if the former spouse failed to survive the 

21 decedent. 

22 ‘‘(iii) PROVISIONS OF WILLS.—Any 

23 provision of a will that is considered to be 

24 revoked solely by operation of this sub25 paragraph shall be revived by the remar-
30

•S 1721 IS 

1 riage of a testator to the former spouse of 

2 the testator. 

3 ‘‘(4) NOTICE.—

4 ‘‘(A) IN GENERAL.—To the maximum ex5 tent practicable, the Secretary shall notify each 

6 owner of trust and restricted land of the provi7 sions of this Act. 

8 ‘‘(B) COMBINED NOTICES.—The notice 

9 under subparagraph (A) may, at the discretion 

10 of the Secretary, be provided with the notice re11 quired under section 207(g).’’. 

12 SEC. 4. PARTITION OF HIGHLY FRACTIONATED INDIAN 

13 LANDS. 

14 Section 205 of the Indian Land Consolidation Act 

15 (25 U.S.C. 2204) is amended by adding at the end the 

16 following: 

17 ‘‘(c) PARTITION OF HIGHLY FRACTIONATED INDIAN

18 LANDS.—

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

20 applicable only to parcels of land (including surface 

21 and subsurface interests, except with respect to a 

22 subsurface interest that has been severed from the 

23 surface interest, in which case this subsection shall 

24 apply only to the surface interest) which the Sec25 retary has determined, pursuant to paragraph
31

•S 1721 IS 

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

2 land. 

3 ‘‘(2) REQUIREMENTS.—Subject to section 223 

4 of this Act, but notwithstanding any other provision 

5 of law, the Secretary shall ensure that each partition 

6 action meets the following requirements: 

7 ‘‘(A) REQUEST.—The Secretary shall com8 mence a process for partitioning a parcel of 

9 land by sale in accordance with the provisions 

10 of this subsection upon receipt of an application 

11 by—

12 ‘‘(i) the Indian tribe with jurisdiction 

13 over the subject land that owns an undi14 vided interest in the parcel of land; or 

15 ‘‘(ii) any person owning an undivided 

16 trust or restricted interest in the parcel of 

17 land. 

18 ‘‘(B) DETERMINATION.—Upon receipt of 

19 an application pursuant to subparagraph (A), 

20 the Secretary shall determine whether the sub21 ject parcel meets the requirements set forth in 

22 section 202(6) (25 U.S.C. 2201(6)) to be classi23 fied as a parcel of highly fractionated Indian 

24 land. 
32

•S 1721 IS 

1 ‘‘(C) CONSENT REQUIREMENTS.—A parcel 

2 of land may be partitioned under this sub3 section only with the written consent of—

4 ‘‘(i) the Indian tribe with jurisdiction 

5 over the subject land if such Indian tribe 

6 owns an undivided interest in the parcel; 

7 ‘‘(ii) any owner who, for the 3-year 

8 period immediately preceding the date on 

9 which the Secretary receives the applica10 tion, has—

11 ‘‘(I) continuously maintained a 

12 bona fide residence on the parcel; or 

13 ‘‘(II) continuously operated a 

14 bona fide farm, ranch, or other busi15 ness on the parcel; and 

16 ‘‘(iii) the owners of at least 50 percent 

17 of the undivided interests in the parcel if, 

18 based on the final appraisal prepared pur19 suant to subparagraph (F), the Secretary 

20 determines that any person’s undivided 

21 trust or restricted interest in the parcel 

22 has a value in excess of $1,000, except 

23 that the Secretary may consent on behalf 

24 of undetermined heirs, minors, and legal 

25 incompetents having no legal guardian, 
33

•S 1721 IS 

1 and missing owners or owners whose 

2 whereabouts are unknown but only after a 

3 search for such owners has been completed 

4 in accordance with the provisions of this 

5 subsection. 

6 ‘‘(D) PRELIMINARY APPRAISAL.—After the 

7 Secretary has determined that the subject par8 cel is a parcel of highly fractionated Indian land 

9 pursuant to subparagraph (B), the Secretary 

10 shall cause a preliminary appraisal of the sub11 ject parcel to be made. 

12 ‘‘(E) NOTICE TO OWNERS ON COMPLETION

13 OF PRELIMINARY APPRAISAL.—Upon comple14 tion of the preliminary appraisal, the Secretary 

15 shall give written notice of the requested parti16 tion and preliminary appraisal to all owners of 

17 undivided interests in the parcel, in accordance 

18 with the following requirements: 

19 ‘‘(i) CONTENTS OF NOTICE.—The no20 tice required by this subsection shall 

21 state—

22 ‘‘(I) that a proceeding to parti23 tion the parcel of land by sale has 

24 been commenced; 
34

•S 1721 IS 

1 ‘‘(II) the legal description of the 

2 subject parcel; 

3 ‘‘(III) the owner’s ownership in4 terest in the subject parcel; 

5 ‘‘(IV) the results of the prelimi6 nary appraisal; 

7 ‘‘(V) the owner’s right to request 

8 a copy of the preliminary appraisal; 

9 ‘‘(VI) the owner’s right to com10 ment on the proposed partition and 

11 the preliminary appraisal; 

12 ‘‘(VII) the date by which the 

13 owner’s comments must be received, 

14 which shall not be less than 60 days 

15 after the date that the notice is 

16 mailed or published under paragraph 

17 (2); and 

18 ‘‘(VIII) the address for request19 ing copies of the preliminary appraisal 

20 and for submitting written comments. 

21 ‘‘(ii) MANNER OF SERVICE.—

22 ‘‘(I) SERVICE BY MAIL.—The 

23 Secretary shall attempt to provide all 

24 owners of interests in the subject par25 cel with actual notice of the partition 
35

•S 1721 IS 

1 proceeding by mailing a copy of the 

2 written notice described in clause (i) 

3 by first class mail to each such owner 

4 at the owner’s last known address. In 

5 the event the written notice to an 

6 owner is returned undelivered, the 

7 Secretary shall, in accordance with 

8 regulations adopted to implement the 

9 provisions of this section, attempt to 

10 obtain a current address for such 

11 owner by inquiring with—

12 ‘‘(aa) the owner’s relatives, 

13 if any are known; 

14 ‘‘(bb) the Indian tribe of 

15 which the owner is a member; 

16 and 

17 ‘‘(cc) the Indian tribe with 

18 jurisdiction over the subject par19 cel. 

20 ‘‘(II) SERVICE BY PUBLICA21 TION.—In the event that the Sec22 retary is unable to serve the notice by 

23 mail pursuant to subclause (II), the 

24 notice shall be served by publishing 

25 the notice 2 times in a newspaper of
36

•S 1721 IS 

1 general circulation in the county or 

2 counties where the subject parcel of 

3 land is located. 

4 ‘‘(F) FINAL APPRAISAL.—After reviewing 

5 and considering comments or information sub6 mitted by any owner of an interest in the parcel 

7 in response to the notice required under sub8 paragraph (E), the Secretary may—

9 ‘‘(i) modify the preliminary appraisal 

10 and, as modified, determine it to be the 

11 final appraisal for the parcel; or 

12 ‘‘(ii) determine that preliminary ap13 praisal should be the final appraisal for the 

14 parcel, without modifications. 

15 ‘‘(G) NOTICE TO OWNERS ON DETERMINA16 TION OF FINAL APPRAISAL.—Upon making the 

17 determination under subparagraph (F) the Sec18 retary shall provide to each owner of the parcel 

19 of land and the Indian tribe with jurisdiction 

20 over the subject land, written notice served in 

21 accordance with subparagraph (E)(ii) stating—

22 ‘‘(i) the results of the final appraisal; 

23 ‘‘(ii) the owner’s right to review a 

24 copy of the appraisal upon request; and 
37

•S 1721 IS 

1 ‘‘(iii) that the land will be sold in ac2 cordance with subparagraph (G) for not 

3 less than the final appraised value subject 

4 to the consent requirements under para5 graph (2)(C). 

6 ‘‘(H) SALE.—Subject to the requirements 

7 of paragraph (2)(C), the Secretary shall—

8 ‘‘(i) provide every owner of the parcel 

9 of land and the Indian tribe with jurisdic10 tion over the subject land with notice 

11 that—

12 ‘‘(I) the decision to partition by 

13 sale is final; and 

14 ‘‘(II) each owner has the right to 

15 appeal the determination of the Sec16 retary to partition the parcel of land 

17 by sale, including the right to appeal 

18 the final appraisal; 

19 ‘‘(ii) after providing public notice of 

20 the sale pursuant to regulations adopted 

21 by the Secretary to implement this sub22 section, offer to sell the land by competi23 tive bid for not less than the final ap24 praised value to the highest bidder from 

25 among the following eligible bidders: 
38

•S 1721 IS 

1 ‘‘(I) any owner of a trust or re2 stricted interest in the parcel being 

3 sold; 

4 ‘‘(II) the Indian tribe, if any, 

5 with jurisdiction over the parcel being 

6 sold; and 

7 ‘‘(III) any member of the Indian 

8 tribe described in subclause (II); and 

9 ‘‘(iii) if no bidder described in clause 

10 (ii) presents a bid that equals or exceeds 

11 the appraised value, provide notice to the 

12 owners of the parcel of land and terminate 

13 the partition process. 

14 ‘‘(I) DECISION NOT TO SELL.—If the re15 quired owners do not consent to the partition 

16 by sale of the parcel of land, in accordance with 

17 paragraph (2)(C), by a date established by the 

18 Secretary, the Secretary shall provide each In19 dian tribe with jurisdiction over the subject 

20 land and each owner notice of that fact. 

21 ‘‘(3) ENFORCEMENT.—

22 ‘‘(A) IN GENERAL.—If a partition is ap23 proved under this subsection and an owner of 

24 an interest in the parcel of land refuses to sur25 render possession in accordance with the parti-
39

•S 1721 IS 

1 tion decision, or refuses to execute any convey2 ance necessary to implement the partition, then 

3 any affected owner or the United States may—

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

5 United States district court for the district 

6 in which the parcel of land is located; and 

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

8 appropriate order for the partition of the 

9 land in kind or by sale. 

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

11 any civil action brought under subparagraph 

12 (A)—

13 ‘‘(i) the United States—

14 ‘‘(I) shall receive notice of the 

15 civil action; and 

16 ‘‘(II) may be a party to the civil 

17 action; and 

18 ‘‘(ii) the civil action shall not be dis19 missed, and no relief requested shall be de20 nied, on the ground that the civil action is 

21 1 against the United States or that the 

22 United States is an indispensable party. 

23 ‘‘(4) REGULATIONS.—The Secretary is author24 ized to adopt such regulations as may be necessary 

25 to implement the provisions of this subsection.’’. 
40

•S 1721 IS 

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 without approval of the Secretary. 

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

10 shall be construed to limit or otherwise affect the applica11 tion of any Federal law requiring the Secretary to approve 

12 mineral leases or other agreements for the development 

13 of the mineral interest in trust or restricted land. 

14 ‘‘(c) OWNER MANAGEMENT.—

15 ‘‘(1) IN GENERAL.—Notwithstanding any provi16 sion of Federal law requiring the Secretary to ap17 prove individual Indian leases or mortgages of indi18 vidual Indian trust or restricted land, where the 

19 owners of all of the undivided trust or restricted in20 terests in a parcel of land have submitted applica21 tions to the Secretary pursuant to subsection (a), 

22 and the Secretary has approved such applications 

23 under subsection (d), such owners may, without fur24 ther approval by the Secretary, do either of the fol25 lowing with respect to their interest in such parcel:
41

•S 1721 IS 

1 ‘‘(A) Enter into a lease of the parcel for 

2 any purpose authorized by section 1 of the Act 

3 of August 9, 1955 (25 U.S.C. 415(a)), for an 

4 initial term not to exceed 25 years. 

5 ‘‘(B) Renew any lease described in para6 graph (1) for 1 renewal term not to exceed 25 

7 years. 

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

9 or renewal of a lease shall be effective until the own10 ers of all undivided trust or restricted interests in 

11 the parcel have executed such lease or renewal. 

12 ‘‘(d) APPROVAL OF APPLICATIONS FOR OWNER MAN13 AGEMENT.—

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

15 paragraph (2), the Secretary shall approve an appli16 cation for owner management submitted by a quali17 fied applicant pursuant to this section unless the 

18 Secretary has reason to believe that the applicant is 

19 submitting the application as the result of fraud or 

20 undue influence. 

21 ‘‘(2) COMMENCEMENT OF OWNER-MANAGEMENT

22 STATUS.—Notwithstanding the approval of 1 or 

23 more applications pursuant to paragraph (1), no in24 terest in a parcel of trust or restricted land shall 

25 have owner-management status until applications for 
42

•S 1721 IS 

1 all of the trust or restricted interests in such parcel 

2 have been submitted and approved by the Secretary 

3 pursuant to this section and in accordance with reg4 ulations adopted pursuant to subsection (l). 

5 ‘‘(e) VALIDITY OF LEASES.—A lease of trust or re6 stricted interests in a parcel of land that is owner-man7 aged under this section that violates any requirement or 

8 limitation set forth in subsection (c) shall be null and void 

9 and unenforceable against the owners of such interests, 

10 or against the land, the interest or the United States. 

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 subject to this sec14 tion while such interest is in owner-management status 

15 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 in accordance with this section shall continue to 

21 have jurisdiction over the interest in trust or re22 stricted land to the same extent and in all respects 

23 the tribe had prior to the interest acquiring owner 

24 managed status. 
43

•S 1721 IS 

1 ‘‘(2) PERSONS USING LAND.—Any person hold2 ing, leasing, or otherwise using such interest in land 

3 shall be considered to consent to the jurisdiction of 

4 the Indian tribe with jurisdiction over the interest, 

5 including such tribe’s laws and regulations, if any, 

6 relating to the use, and any effects associated with 

7 the use, of the interest. 

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

9 REVOCATION.—

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

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

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

13 of land have been approved by the Secretary pursu14 ant to subsection (d), each such interest shall con15 tinue in owner-managed status under this section 

16 notwithstanding any subsequent conveyance of the 

17 interest in trust or restricted status to another per18 son or the subsequent descent of the interest in trust 

19 or restricted status by testate or intestate succession 

20 to 1 or more heirs. 

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

22 an interest may be revoked upon written request of 

23 owners (including the parents or legal guardians of 

24 minors or incompetent owners) of all trust or re25 stricted interests in the parcel, submitted to the Sec-
44

•S 1721 IS 

1 retary in accordance with regulations adopted under 

2 subsection (l). The revocation shall become effective 

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

4 have been delivered to the Secretary. 

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

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

7 affect the validity of any lease made in accordance 

8 with the provisions of this section prior to the effec9 tive date of the revocation, provided that, after such 

10 revocation becomes effective, the Secretary shall be 

11 responsible for the collection of, and accounting for, 

12 all future lease revenues accruing to the trust or re13 stricted interests in the parcel from and after such 

14 effective date. 

15 ‘‘(i) DEFINED TERMS.—

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

17 term ‘qualified applicant’ means—

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

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

20 and 

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

22 minor or incompetent person who owns a trust 

23 or restricted interest in a parcel of land. 
45

•S 1721 IS 

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

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

3 trust or restricted interest, that the interest—

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

5 parcel of land for which applications covering 

6 all trust or restricted interests in such parcel 

7 have been submitted to and approved by the 

8 Secretary pursuant to subsection (d); 

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

10 Secretary pursuant to, and in a manner that is 

11 consistent with the requirements of, this sec12 tion; and 

13 ‘‘(C) no revocation has occurred under 

14 subsection (h)(2). 

15 ‘‘(j) SECRETARIAL APPROVAL OF OTHER TRANS16 ACTIONS.—Except with respect to the specific lease trans17 actions described in paragraphs (1) and (2) of subsection 

18 (c), interests held in owner-managed status under the pro19 visions of this section shall continue to be subject to all 

20 Federal laws requiring the Secretary to approve trans21 actions involving trust or restricted land that would other22 wise apply to such interests. 

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

24 (c), (f), and (h), nothing in this section limits or otherwise
46

•S 1721 IS 

1 affects any authority or responsibility of the Secretary 

2 with respect to an interest in trust or restricted land. 

3 ‘‘(l) REGULATIONS.—The Secretary shall promulgate 

4 such regulations as are necessary to carry out this sec5 tion.’’. 

6 SEC. 6. ADDITIONAL AMENDMENTS. 

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

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

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

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

11 the undivided interests’’ and inserting ‘‘undivided in12 terests equal to at least 50 percent of the undivided 

13 interest’’; 

14 (2) in section 205 (25 U.S.C. 2204), by adding 

15 subsection (c) as follows: 

16 ‘‘(c) PURCHASE OPTION AT PROBATE.—

17 ‘‘(1) IN GENERAL.—Subject to section 

18 207(b)(2)(A) of this Act (25 U.S.C. 2206(b)(2)(A)), 

19 interests in a parcel of trust or restricted land in the 

20 decedent’s estate may be purchased at probate in ac21 cordance with the provisions of this subsection. 

22 ‘‘(2) SALE OF INTEREST AT MINIMUM FAIR

23 MARKET VALUE.—Subject to paragraph (3), the Sec24 retary is authorized to sell trust or restricted inter25 ests subject to this subsection at no less than fair 
47

•S 1721 IS 

1 market value to the highest bidder from among the 

2 following eligible bidders: 

3 ‘‘(A) The heirs taking by intestate succes4 sion or the devisees listed in section 

5 207(a)(1)(A). 

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

7 or restricted interests in the same parcel of 

8 land involved in the probate proceeding. 

9 ‘‘(C) The Indian tribe with jurisdiction 

10 over the interest, or the Secretary on behalf of 

11 such Indian tribe. 

12 ‘‘(3) REQUEST FOR AUCTION.—No auction and 

13 sale of an interest in probate shall occur under this 

14 subsection unless—

15 ‘‘(A) except as provided in paragraph (6), 

16 the heirs or devises of such interest consent to 

17 the sale; and 

18 ‘‘(B) a person or the Indian tribe eligible 

19 to bid on the interest under paragraph (2) sub20 mits a request for the auction prior to the dis21 tribution of the interest to heirs or devisees of 

22 the decedent and in accordance with any regu23 lations of the Secretary. 
48

•S 1721 IS 

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

2 sale of an interest pursuant to this subsection, the 

3 Secretary shall—

4 ‘‘(A) appraise the interest; and 

5 ‘‘(B) publish notice of the time and place 

6 of the auction (or the time and place for sub7 mitting sealed bids), a description, and the ap8 praised value, of the interest to be sold. 

9 ‘‘(5) RIGHTS OF SURVIVING SPOUSE.—Nothing 

10 in this subsection shall be construed to diminish or 

11 otherwise affect the rights of a surviving spouse 

12 under section 207(b)(2)(A). 

13 ‘‘(6) HIGHLY FRACTIONATED INDIAN LANDS.—

14 Notwithstanding paragraph (3)(A), the consent of 

15 an heir shall not be required for the auction and sale 

16 of an interest at probate under this subsection if—

17 ‘‘(A) the interest is passing by intestate 

18 succession; and 

19 ‘‘(B) prior to the auction the Secretary de20 termines that the interest involved is an interest 

21 in a parcel of highly fractionated Indian land. 

22 ‘‘(7) REGULATIONS.—The Secretary shall pro23 mulgate regulations to implement the provisions of 

24 this subsection.’’; 

25 (3) in section 206 (25 U.S.C. 2205)—
49

•S 1721 IS 

1 (A) in subsection (a), by striking para2 graph (3) and inserting the following: 

3 ‘‘(3) TRIBAL PROBATE CODES.—Except as pro4 vided in any applicable Federal law, the Secretary 

5 shall not approve a tribal probate code, or an 

6 amendment to such a code, that prohibits the devise 

7 of an interest in trust or restricted land by—

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

9 original allottee; or 

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

11 Indian tribe with jurisdiction over such an in12 terest; 

13 unless the code provides for—

14 ‘‘(i) the renouncing of interests to eligible devi15 sees in accordance with the code; 

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

17 spouse or lineal descendant of a testator to reserve 

18 a life estate without regard to waste; and 

19 ‘‘(iii) payment of fair market value in the man20 ner prescribed under subsection (c)(2).’’; and 

21 (B) in subsection (c)—

22 (i) in paragraph (1)—

23 (I) by striking the paragraph 

24 heading and inserting the following: 

25 ‘‘(1) AUTHORITY.—
50

•S 1721 IS 

1 ‘‘(A) IN GENERAL.—’’; 

2 (II) in the first sentence of sub3 paragraph (A) (as redesignated by 

4 clause (i)), by striking ‘‘section 

5 207(a)(6)(A) of this title’’ and insert6 ing ‘‘section 207(a)(2)(A)(ii) of this 

7 title’’; and 

8 (III) by striking the last sentence 

9 and inserting the following: 

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

11 transfer payments received under subparagraph 

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

13 received an interest in land if the interest had 

14 not been acquired by the Indian tribe in accord15 ance with this paragraph.’’; and 

16 (ii) in paragraph (2)—

17 (I) in subparagraph (A)—

18 (aa) by striking the subpara19 graph heading and all that fol20 lows through ‘‘Paragraph (1) 

21 shall not apply’’ and inserting the 

22 following: 

23 ‘‘(A) INAPPLICABILITY TO CERTAIN INTER24 ESTS.—
51

•S 1721 IS 

1 ‘‘(i) IN GENERAL.—Paragraph (1) 

2 shall not apply’’; 

3 (bb) in clause (i) (as redes4 ignated by item (aa)), by striking 

5 ‘‘if, while’’ and inserting the fol6 lowing: ‘‘if—

7 ‘‘(I) while’’; 

8 (cc) by striking the period at 

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

10 (dd) by adding at the end 

11 the following: 

12 ‘‘(II)—

13 ‘‘(aa) the interest is part of 

14 a family farm that is devised to 

15 a member of the family of the de16 cedent; and 

17 ‘‘(bb) the devisee agrees that 

18 the Indian tribe with jurisdiction 

19 over the land will have the oppor20 tunity to acquire the interest for 

21 fair market value if the interest 

22 is offered for sale to an entity 

23 that is not a member of the fam24 ily of the owner of the land. 
52

•S 1721 IS 

1 ‘‘(ii) RECORDING OF INTEREST.—On 

2 request by an Indian tribe described in 

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

4 the acquisition by the Indian tribe of an 

5 interest in a family farm involved shall be 

6 recorded as part of the deed relating to the 

7 interest involved. 

8 ‘‘(iii) MORTGAGE AND FORE9 CLOSURE.—Nothing in clause (i)(II) pre10 vents or limits the ability of an owner of 

11 land to which that clause applies to mort12 gage the land or limit the right of the enti13 ty holding such a mortgage to foreclose or 

14 otherwise enforce such a mortgage agree15 ment in accordance with applicable law. 

16 ‘‘(iv) DEFINITION OF ‘MEMBER OF

17 THE FAMILY’.—In this paragraph, the 

18 term ‘member of the family’, with respect 

19 to a decedent or landowner, means—

20 ‘‘(I) a lineal descendant of a de21 cedent or landowner; 

22 ‘‘(II) a lineal descendant of the 

23 grandparent of a decedent or land24 owner; 
53

•S 1721 IS 

1 ‘‘(III) the spouse of a descendant 

2 or landowner described in subclause 

3 (I) or (II); and 

4 ‘‘(IV) the spouse of a decedent or 

5 landowner.’’; 

6 (4) in subparagraph (B), by striking ‘‘subpara7 graph (A)’’ and all that follows through 

8 ‘‘207(a)(6)(B) of this title’’ and inserting ‘‘para9 graph (1)’’; 

10 (5) in section 207 (25 U.S.C. 2206), subsection 

11 (g)(5), by striking ‘‘this section’’ and inserting ‘‘sub12 sections (a) and (b)’’; 

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

14 (A) by striking the section heading and in15 serting the following: 

16 ‘‘SEC. 2212. FRACTIONAL INTEREST ACQUISITION PRO17 GRAM.’’; 

18 (B) in subsection (a)—

19 (i) by striking ‘‘(2) AUTHORITY OF

20 SECRETARY.—’’ and all that follows 

21 through ‘‘the Secretary shall submit’’ and 

22 inserting the following: 

23 ‘‘(2) AUTHORITY OF SECRETARY.—The Sec24 retary shall submit’’; and 
54

•S 1721 IS 

1 (ii) by striking ‘‘whether the program 

2 to acquire fractional interests should be ex3 tended or altered to make resources’’ and 

4 inserting ‘‘how the fractional interest ac5 quisition program should be enhanced to 

6 increase the resources made’’; 

7 (C) in subsection (b), by striking para8 graph (4) and inserting the following: 

9 ‘‘(4) shall minimize the administrative costs as10 sociated with the land acquisition program through 

11 the use of policies and procedures designed to ac12 commodate the voluntary sale of interests under the 

13 pilot program under this section, notwithstanding 

14 the existence of any otherwise applicable policy, pro15 cedure, or regulation, through the elimination of du16 plicate—

17 ‘‘(A) conveyance documents; 

18 ‘‘(B) administrative proceedings; and 

19 ‘‘(C) transactions.’’. 

20 (D) in subsection (c)—

21 (i) in paragraph (1)—

22 (I) in subparagraph (A), by strik23 ing ‘‘at least 5 percent of the’’ and in24 serting in its place ‘‘an’’; 
55

•S 1721 IS 

1 (II) in subparagraph (A), by in2 serting ‘‘in such parcel’’ following 

3 ‘‘the Secretary shall convey an inter4 est’’; 

5 (III) in subparagraph (A), by 

6 striking ‘‘landowner upon payment’’ 

7 and all that follows and inserting the 

8 following: ‘‘landowner—

9 ‘‘(i) on payment by the Indian land10 owner of the amount paid for the interest 

11 by the Secretary; or 

12 ‘‘(ii) if—

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

14 subparagraph provides assurances 

15 that the purchase price will be paid by 

16 pledging revenue from any source, in17 cluding trust resources; and 

18 ‘‘(II) the Secretary determines 

19 that the purchase price will be paid in 

20 a timely and efficient manner.’’; and 

21 (IV) in subparagraph (B), by in22 serting before the period at the end 

23 the following: ‘‘unless the interest is 

24 subject to a foreclosure of a mortgage
56

•S 1721 IS 

1 in accordance with the Act of March 

2 29, 1956 (25 U.S.C. 483a)’’; and 

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

4 percent or more of the undivided interests’’ 

5 and inserting ‘‘an undivided interest’’; 

6 (7) 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-
57

•S 1721 IS 

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 
58

•S 1721 IS 

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.—In accord15 ance with regulations to be promulgated by the Sec16 retary, and in consultation with tribal governments 

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

18 Secretary shall periodically remove liens referred to 

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

20 the Secretary.’’; 

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

22 (A) in subsection (a), by striking para23 graph (2) and inserting the following: 

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

25 permit, or sale of resources from interests acquired 
59

•S 1721 IS 

1 under section 213 or paid by Indian landowners 

2 under section 213.’’; and 

3 (B) in subsection (b)—

4 (i) in paragraph (1)—

5 (I) in the matter preceding sub6 paragraph (A), by striking ‘‘Subject 

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

8 ‘‘All’’; 

9 (II) in subparagraph (A), by 

10 striking ‘‘and’’ at the end; 

11 (III) in subparagraph (B), by 

12 striking the period at the end and in13 serting ‘‘; and’’; and 

14 (IV) by adding at the end the fol15 lowing: 

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

17 on the reservation from which the income was 

18 derived.’’; and 

19 (ii) by striking paragraph (2) and in20 serting the following: 

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

22 the revenue deposited in the Acquisition Fund under 

23 paragraph (1) to acquire some or all of the undi24 vided interests in any parcels of land in accordance 

25 with section 205.’’; 
60

•S 1721 IS 

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

2 (A) in subsection (b)(1) by striking sub3 paragraph (B) and inserting a new subpara4 graph (B) as follows—

5 ‘‘(B) WAIVER OF REQUIREMENT.—The re6 quirement for an estimate of value under sub7 paragraph (A) may be waived in writing by an 

8 owner of an interest in trust or restricted land 

9 either selling, exchanging, or conveying by gift 

10 deed for no or nominal consideration such inter11 est—

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

13 owner’s spouse, brother, sister, lineal an14 cestor, lineal descendant, or collateral heir; 

15 or 

16 ‘‘(ii) to an Indian co-owner or to a 

17 tribe with jurisdiction over the subject par18 cel of land, where the grantor owns a frac19 tional interest that represents 5 percent or 

20 less of the parcel.’’. 

21 (B) in subsection (e), by striking the mat22 ter preceding paragraph (1), and inserting 

23 ‘‘Notwithstanding any other provision of law, 

24 the names and mailing addresses of the owners 

25 of any interest in trust or restricted lands, and
61

•S 1721 IS 

1 information on the location of the parcel and 

2 the percentage of undivided interest owned by 

3 each individual shall, upon written request, be 

4 made available to—’’; 

5 (C) in subsection (e)(1), by striking ‘‘In6 dian’’; 

7 (D) in subsection (e)(3), by striking ‘‘pro8 spective applicants for the leasing, use, or con9 solidation of’’ and insert ‘‘any person that is 

10 leasing, using, or consolidating, or is applying 

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

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

13 the following: 

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

15 ‘‘(1) IN GENERAL.—Except as provided in para16 graph (2), before the Secretary approves an applica17 tion to terminate the trust status or remove the re18 strictions on alienation from a parcel of trust or re19 stricted land, the Indian tribe with jurisdiction over 

20 the parcel shall have the opportunity—

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

22 application; or 

23 ‘‘(B) in a case in which there is no pur24 chase price offered, to acquire the interest in 
62

•S 1721 IS 

1 the parcel by paying the fair market value of 

2 the interest. 

3 ‘‘(2) EXCEPTION FOR FAMILY FARMS.—

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

5 not apply to a parcel of trust or restricted land 

6 that is part of a family farm that is conveyed 

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

8 defined in section 206(c)(2)(A)(iv)) if the con9 veyance requires that in the event that the in10 terest is offered for sale to an entity that is not 

11 a member of the family of the landowner, the 

12 Indian tribe with jurisdiction over the land shall 

13 be afforded the opportunity to purchase the in14 terest pursuant to paragraph (1). 

15 ‘‘(B) APPLICABILITY OF OTHER PROVI16 SION.—Section 206(c)(2)(A) shall apply with 

17 respect to the recording and mortgaging of any 

18 trust or restricted land referred to in subpara19 graph (A).’’; and 

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

21 2218(b)(1)(A)), by striking ‘‘100’’ and inserting 

22 ‘‘90’’. 

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

24 Consolidation Act (25 U.S.C. 2201) is amended—
63

•S 1721 IS 

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

2 following: 

3 ‘‘(2) ‘Indian’ means—

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

5 Indian tribe, is eligible to become a member of 

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

7 of enactment of the American Indian Probate 

8 Reform Act of 2003) of an interest in trust or 

9 restricted land; 

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

11 Indian under the Indian Reorganization Act (25 

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

13 thereunder; 

14 ‘‘(C) any person not included in subpara15 graph (A) or (B) who is a lineal descendant 

16 within 3 degrees of a person described in sub17 paragraph (A); 

18 ‘‘(D) an owner of a trust or restricted in19 terest in a parcel of land for purposes of inher20 iting another trust or restricted interest in such 

21 parcel; and 

22 ‘‘(E) with respect to the ownership, devise, 

23 or descent of trust or restricted land in the 

24 State of California, any person who meets the 

25 definition of ‘Indians of California’ contained in 
64

•S 1721 IS 

1 the first section of the Act of May 18, 1928 (25 

2 U.S.C. 651), until otherwise provided by Con3 gress in accordance with section 809(b) of the 

4 Indian Health Care Improvement Act (25 

5 U.S.C. 1679)(b)).’’; and 

6 (2) by adding at the end the following: 

7 ‘‘(6) ‘Parcel of highly fractionated Indian land’ 

8 means a parcel of land that the Secretary, pursuant 

9 to authority under a provision of this Act, deter10 mines to have at the time of the determination—

11 ‘‘(A)(i) 100 or more but less than 200 co12 owners of undivided trust or restricted inter13 ests; and 

14 ‘‘(ii) no undivided trust or restricted inter15 est owned by any 1 person which represents 

16 more than 2 percent of the total undivided own17 ership of the parcel; or 

18 ‘‘(B)(i) 200 or more but less than 350 co19 owners of undivided trust or restricted inter20 ests; and 

21 ‘‘(ii) no undivided trust or restricted inter22 est owned by any 1 person which represents 

23 more than 5 percent of the total undivided own24 ership of the parcel; or 
65

•S 1721 IS 

1 ‘‘(C) 350 or more co-owners of undivided 

2 trust or restricted interests. 

3 ‘‘(7) ‘Person’ means a natural person.’’. 

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

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

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

7 That the rules of intestate succession under the Indian 

8 Land Consolidation Act (25 U.S.C. 2201 et seq.) (includ9 ing a tribal probate code approved under that Act or regu10 lations promulgated under that Act) shall apply to that 

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

12 (d) TRANSFERS OF RESTRICTED INDIAN LAND.—

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

14 is amended in the first proviso by—

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

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

17 the corporation is located,’’; 

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

19 Land Consolidation Act’’ and all that follows 

20 through the colon; and 

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

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

23 (including a tribal probate code approved under that 

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

25 (e) ESTATE PLANNING.—
66

•S 1721 IS 

1 (1) CONDUCT OF ACTIVITIES.—Section 

2 207(f)(1) of the Indian Land Consolidation Act (25 

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

4 and inserting the following—

5 ‘‘(1) IN GENERAL.—

6 ‘‘(A) The activities conducted under this 

7 subsection shall be conducted in accordance 

8 with any applicable—

9 ‘‘(i) tribal probate code; or 

10 ‘‘(ii) tribal land consolidation plan. 

11 ‘‘(B) The Secretary shall provide estate 

12 planning assistance in accordance with this sub13 section, to the extent amounts are appropriated 

14 for such purpose.’’. 

15 (2) REQUIREMENTS.—Section 207(f) of the In16 dian Land Consolidation Act (25 U.S.C. 2206(f)) is 

17 amended by striking ‘‘and’’ at the end of subpara18 graph (A), redesignating subparagraph (B) as sub19 paragraph (D), and adding the following—

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

21 and other methods of devise among Indian 

22 landowners; 

23 ‘‘(C) substantially reduce the quantity and 

24 complexity of Indian estates that pass intestate 

25 through the probate process, while protecting 
67

•S 1721 IS 

1 the rights and interests of Indian landowners; 

2 and’’; and 

3 (3) by striking ‘‘(3) CONTRACTS.—’’ and insert4 ing the following—

5 ‘‘(3) INDIAN CIVIL LEGAL ASSISTANCE

6 GRANTS.—In carrying out this section, the Secretary 

7 shall award grants to nonprofit entities, as defined 

8 under section 501(c)(3) of the Internal Revenue 

9 Code of 1986, which provide legal assistance services 

10 for Indian tribes, individual owners of interests in 

11 trust or restricted lands, or Indian organizations 

12 pursuant to Federal poverty guidelines which submit 

13 an application to the Secretary, in such form and 

14 manner as the Secretary may prescribe, for the pro15 vision of civil legal assistance to such Indian tribes, 

16 individual owners, and Indian organizations for the 

17 development of tribal probate codes, for estate plan18 ning services or for other purposes consistent with 

19 the services they provide to Indians and Indian 

20 tribes.’’; and 

21 (4) by adding at the end of section 207 (25 

22 U.S.C. 2206) the following: 

23 ‘‘(k) NOTIFICATION TO LANDOWNERS.—

24 ‘‘(1) IN GENERAL.—Not later than 2 years 

25 after the date of enactment of this Act, the Sec-
68

•S 1721 IS 

1 retary shall provide to each Indian landowner a re2 port that lists, with respect to each tract of trust or 

3 restricted land in which the Indian landowner has an 

4 interest—

5 ‘‘(A) the location of the tract of land in6 volved; 

7 ‘‘(B) the identity of each other co-owner of 

8 interests in the parcel of land; and 

9 ‘‘(C) the percentage of ownership of each 

10 owner of an interest in the tract. 

11 ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in 

12 this subsection shall preclude any individual Indian 

13 from obtaining from the Secretary, upon the request 

14 of that individual, any information specified in para15 graph (1) before the expiration of the 2-year period 

16 specified in paragraph (1). 

17 ‘‘(3) REQUIREMENTS FOR NOTIFICATION.—

18 Each notification made under paragraph (1) shall 

19 include information concerning estate planning and 

20 land consolidation options under the provisions of 

21 this Act and other applicable Federal law, including 

22 information concerning—

23 ‘‘(A) the preparation and execution of 

24 wills; 

25 ‘‘(B) negotiated sales; 
69

•S 1721 IS 

1 ‘‘(C) gift deeds; 

2 ‘‘(D) exchanges; and 

3 ‘‘(E) life estates without regard to waste. 

4 ‘‘(4) PROHIBITION.—No individual Indian may 

5 be denied access to information relating to land in 

6 which that individual has an interest described in 

7 this section on the basis of section 552a of title 5, 

8 United States Code (commonly referred to as the 

9 ‘Privacy Act’). 

10 ‘‘(l) PRIVATE AND FAMILY TRUSTS PILOT

11 PROJECT.—

12 ‘‘(1) DEVELOPMENT PILOT PROJECT.—

13 ‘‘(A) The Secretary shall consult with 

14 tribes, individual landowner organizations, In15 dian advocacy organizations, and other inter16 ested parties to—

17 ‘‘(i) develop a pilot project for the cre18 ation and management of private and fam19 ily trusts for interests in trust or restricted 

20 lands; and 

21 ‘‘(ii) develop proposed rules, regula22 tions, and guidelines to implement the pilot 

23 project. 

24 ‘‘(B) The pilot project shall commence on 

25 the date of enactment of the American Indian 
70

•S 1721 IS 

1 Probate Reform Act of 2003 and shall continue 

2 for 3 years after the date of enactment of this 

3 subsection. 

4 ‘‘(2) CHARACTERISTICS OF PRIVATE AND FAM5 ILY TRUSTS.—For purposes of this subsection and 

6 any proposed rules, regulations, or guidelines devel7 oped under this subsection—

8 ‘‘(A) the terms ‘private trust’ and ‘family 

9 trust’ shall both mean trusts created pursuant 

10 to this subsection for the management and ad11 ministration of interests in trust or restricted 

12 land, held by 1 or more persons, which com13 prise the corpus of a trust, by a private trustee 

14 subject to the approval of the Secretary; 

15 ‘‘(B) private and family trusts shall be cre16 ated and managed in furtherance of the pur17 poses of the Indian Land Consolidation Act (25 

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

19 ‘‘(C) private and family trusts shall not be 

20 construed to impair, impede, replace, abrogate, 

21 or modify in any respect the trust duties or re22 sponsibilities of the Secretary, nor shall any23 thing in this subsection or in any rules, regula24 tions, or guidelines developed under this sub25 section enable any private or family trustee of
71

•S 1721 IS 

1 interests in trust or restricted lands to exercise 

2 any powers over such interests greater than 

3 that held by the Secretary with respect to such 

4 interests. 

5 ‘‘(3) REPORT TO CONGRESS.—Prior to the expi6 ration of the pilot project provided for under this 

7 subsection, the Secretary shall submit a report to 

8 Congress stating—

9 ‘‘(A) a description of the Secretary’s con10 sultation with Indian tribes, individual land11 owner associations, Indian advocacy organiza12 tions, and other parties consulted with regard13 ing the development of rules, regulations, and/

14 or guidelines for the creation and management 

15 of private and family trusts over interests in 

16 trust and restricted lands; 

17 ‘‘(B) the feasibility of accurately tracking 

18 such private and family trusts; 

19 ‘‘(C) the impact that private and family 

20 trusts would have with respect to the accom21 plishment of the goals of the Indian Land Con22 solidation Act (25 U.S.C. 2201 et seq.); and 

23 ‘‘(D) a final recommendation regarding 

24 whether to adopt the creation of a permanent 

25 private and family trust program as a manage-
72

•S 1721 IS 

1 ment and consolidation measure for interests in 

2 trust or restricted lands.’’. 

3 SEC. 7. UNCLAIMED AND ABANDONED PROPERTY. 

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

5 et seq.) (as amended by section 5) is amended by adding 

6 at the end the following: 

7 ‘‘SEC. 222. UNCLAIMED AND ABANDONED PROPERTY. 

8 ‘‘(a) INTERESTS PRESUMED ABANDONED.—An undi9 vided trust or restricted interest in a parcel of land owned 

10 by a person shall be presumed abandoned and subject to 

11 the provisions of this section if the Secretary makes a de12 termination that—

13 ‘‘(1) a period of 6 consecutive years next pre14 ceding such determination has passed during which 

15 the person owning such interest has not made any 

16 indication or expression of interest in the trust or 

17 restricted interest as set forth in subsection (b); 

18 ‘‘(2) the person owning the trust or restricted 

19 interest was, at all times during the 6-year period 

20 described in paragraph (1), over the age of 18; and 

21 ‘‘(3) as of the expiration of the 6-year period 

22 described in paragraph (1), such parcel was a parcel 

23 of highly fractionated Indian land. 

24 ‘‘(b) INDICATORS OF OWNER INTEREST.—For pur25 poses of subsection (a), an indication or expression of an 
73

•S 1721 IS 

1 owner’s interest in the property shall mean the owner or 

2 any person acting on behalf of the owner—

3 ‘‘(1) making a deposit to, withdrawal from, or 

4 inquiry into an individual Indian money account as5 sociated with such interest; 

6 ‘‘(2) negotiating a Treasury check derived from 

7 such interest or account; 

8 ‘‘(3) providing the Secretary with a valid ad9 dress; or 

10 ‘‘(4) communicating with the Secretary regard11 ing such interest or account. 

12 ‘‘(c) RELATED PROPERTY.—At the time that prop13 erty is presumed to be abandoned under this section, any 

14 other property right accrued or accruing to the owner as 

15 a result of the interest, including funds in an associated 

16 individual Indian money account, that has not previously 

17 been presumed abandoned under this section, also shall 

18 be presumed abandoned. 

19 ‘‘(d) ANNUAL LIST OF PROPERTY; NOTICE TO OWN20 ERS.—No later than the first day of November of each 

21 year, the Secretary shall prepare and distribute a list of 

22 names of persons owning property presumed abandoned 

23 under this section during the preceding fiscal year and 

24 provide notice to such persons in accordance with the fol25 lowing requirements: 
74

•S 1721 IS 

1 ‘‘(1) CONTENTS OF ANNUAL LIST.—The list 

2 shall set forth—

3 ‘‘(A) the names of all persons owning in4 terests in land and property presumed to be 

5 abandoned under this section; 

6 ‘‘(B) with respect to each person named on 

7 the list, the reservation, if any, and the county 

8 and State in which the person’s interest in land 

9 is located; 

10 ‘‘(C) the reservation, if any, the city or 

11 town, county and State of the person’s last 

12 known address; and 

13 ‘‘(D) the name, address, and telephone 

14 number of the official or officials within the De15 partment of the Interior to contact for purposes 

16 of identifying persons or lands included on the 

17 list. 

18 ‘‘(2) DISTRIBUTION OF LIST.—The list shall be 

19 distributed to all regional offices and agencies of the 

20 Bureau of Indian Affairs and to all reservations 

21 where land described on this list is located and shall 

22 cause the list to be published in the Federal Register 

23 within 15 days after the list is prepared. 

24 ‘‘(3) NOTICE BY MAIL.—In addition to pub25 lishing and distributing the list described in para-
75

•S 1721 IS 

1 graph (1), the Secretary shall attempt to provide the 

2 persons owning such trust or restricted interests 

3 with actual written notice that the interest and any 

4 associated funds or property is presumed abandoned 

5 under the provisions of this section. Such notice 

6 shall be sent by first class mail to the owner at the 

7 owner’s last known address and shall include the fol8 lowing: 

9 ‘‘(A) A legal description of the parcel of 

10 which the interest is a part. 

11 ‘‘(B) A description of the owner’s interest. 

12 ‘‘(C) A statement that the owner has not 

13 indicated or expressed an interest in the trust 

14 or restricted interest for a period of 6 consecu15 tive years and that such interest, and any funds 

16 in an associated individual Indian money ac17 count, is presumed abandoned. 

18 ‘‘(D) A statement that the interest will be 

19 appraised and sold for its appraised value un20 less the owner responds to the notice within 60 

21 days after the notice is mailed or published. 

22 ‘‘(E) A statement that in the event the 

23 owner fails to respond and the notice and the 

24 property is sold, the proceeds of such sale and 

25 any funds in any associated individual Indian
76

•S 1721 IS 

1 money account will be deposited in an un2 claimed property account. 

3 ‘‘(4) SEARCH FOR WHEREABOUTS OF OWNER.—

4 If the notice described in paragraph (3) is returned 

5 undelivered, the Secretary shall attempt to locate the 

6 owner by—

7 ‘‘(A) searching publicly available records 

8 and Federal records, including telephone and 

9 address directories and using electronic search 

10 methods; 

11 ‘‘(B) inquiring with—

12 ‘‘(i) the owner’s relatives, if any are 

13 known; 

14 ‘‘(ii) any Indian tribe of which the 

15 owner is a member; and 

16 ‘‘(iii) the Indian tribe, if any, with ju17 risdiction over the interest; and 

18 ‘‘(C) if the value of the interest and any 

19 funds in an associated individual Indian money 

20 account exceeds $1,000, engaging an inde21 pendent search firm to perform a missing per22 son search. 

23 ‘‘(5) NOTICE BY PUBLICATION.—In the event 

24 that the Secretary is unable to locate the owner pur25 suant to paragraph (4), the Secretary shall publish 
77

•S 1721 IS 

1 a notice not later than November 30 following the 

2 fiscal year in which the property was presumed to be 

3 abandoned under this section. The notice shall in4 clude the same information required for the notice 

5 described in paragraph (3) and shall be—

6 ‘‘(A) published in a newspaper of general 

7 circulation on or near the apparent owner’s 

8 home reservation and near the last known ad9 dress of the owner; and 

10 ‘‘(B) in a form that is likely to attract the 

11 attention of the apparent owner of the property. 

12 ‘‘(e) CONVERSION OF ABANDONED INTERESTS.—If, 

13 after 2 years from the date the notice is published under 

14 subsection (d)(3), any such real property or interest there15 in remains unclaimed, the Secretary shall appraise such 

16 property in a manner consistent with section 215 of the 

17 Indian Land Consolidation Act (25 U.S.C. 2214) and shall 

18 purchase the property at its appraised value, or sell the 

19 property to an Indian tribe with jurisdiction over such 

20 property or a person who owns an undivided trust or re21 stricted interest in such property, by competitive bid for 

22 not less than the appraised value. The Secretary shall then 

23 transfer any monetary interest that the Secretary holds 

24 for the previous apparent owner to the unclaimed property 

25 account described in subsection (f). 
78

•S 1721 IS 

1 ‘‘(f) UNCLAIMED PROPERTY ACCOUNT.—

2 ‘‘(1) Except as otherwise provided by this sec3 tion, the Secretary shall promptly deposit in a spe4 cial unclaimed property account all funds received 

5 under this section. The Secretary shall pay all claims 

6 under subsection (g) from this account. The Sec7 retary shall record the name and last known address 

8 of each person appearing to be entitled to the prop9 erty. 

10 ‘‘(2) The Secretary is authorized to use interest 

11 earned on the special unclaimed property account to 

12 pay—

13 ‘‘(A) the administrative costs of conversion 

14 of real property under subsection (g); and 

15 ‘‘(B) costs of mailing and publication in 

16 connection with abandoned property. 

17 ‘‘(3) The Secretary shall retain a sufficient bal18 ance in the account at all times from which to pay 

19 claims duly allowed. All other funds shall be avail20 able to the Secretary to use for the purposes of land 

21 consolidation pursuant to 25 U.S.C. 2212. 

22 ‘‘(g) CLAIMS.—

23 ‘‘(1) FILING OF CLAIM.—An individual, or the 

24 heirs of an individual, may file a claim to recover 
79

•S 1721 IS 

1 property or the proceeds of the conversion of the 

2 property on a form prescribed by the Secretary. 

3 ‘‘(2) ALLOWANCE OR DENIAL OF CLAIM.—Not 

4 more than 180 days after a claim is filed, the Sec5 retary shall allow or deny the claim and give written 

6 notice of the decision to the claimant. If the claim 

7 is denied, the Secretary shall inform the claimant of 

8 the reasons for the denial and specify what addi9 tional evidence is required before the claim will be 

10 allowed. The claimant may then file a new claim 

11 with the Secretary or maintain an action under this 

12 subsection. 

13 ‘‘(3) PAYMENT OF ALLOWED CLAIM.—Not more 

14 than 60 days after a claim is allowed, the property 

15 or the net proceeds of the conversion of the property 

16 shall be delivered or paid by the Secretary to the 

17 claimant, together with any interest, or other incre18 ment to which the claimant is entitled under this 

19 section. 

20 ‘‘(4) JUDICIAL REVIEW.—An individual ag21 grieved by a decision of the Secretary under this 

22 subsection or whose claim has not been acted upon 

23 within 180 days may, after exhausting administra24 tive remedies, seek—
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1 ‘‘(A) judicial review or other appropriate 

2 relief against the Secretary in a United States 

3 district court, which may include an order 

4 quieting beneficial title in the name of peti5 tioner whose property was sold by the Secretary 

6 in violation of this section; and 

7 ‘‘(B) recover reasonable attorneys fees if 

8 he is the prevailing party. 

9 ‘‘(h) VOLUNTARY ABANDONMENT.—Any person who 

10 is an owner of an interest subject to this section may, with 

11 the Secretary’s approval, voluntarily abandon that interest 

12 to the benefit of the tribe with jurisdiction over the parcel 

13 of land or a co-owner of a trust or restricted interest in 

14 the same parcel of land in accordance with regulations 

15 adopted pursuant to subsection (j). 

16 ‘‘(i) TRANSFER OF ABANDONED INTERESTS IN

17 LAND.—

18 ‘‘(1) Any interest in land acquired under sub19 section (e) or (h) over which an Indian tribe has ju20 risdiction shall be held in trust by the Secretary for 

21 the benefit of that tribe, provided that the tribe may 

22 decline any such property in its discretion, and pro23 vided that if the tribe declines or does not currently 

24 own any interest within that parcel a co-owner with
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1 a majority interest shall have the first right of pur2 chase of the property at the appraised price. 

3 ‘‘(2) Any interest in real property acquired 

4 under subsection (e) or (h) that is not subject to the 

5 jurisdiction of an Indian tribe shall be held in trust 

6 by the Secretary for all of the other co-owners of un7 divided trust or restricted interests in the parcel in 

8 proportion to their respective interests in the prop9 erty, provided that any owner may decline to accept 

10 such interest, in which case that interest shall be al11 located proportionately among such other co-owners 

12 who do not decline. 

13 ‘‘(3) The Indian tribe or other subsequent 

14 owner described in paragraph (2) takes such interest 

15 free of all claims by the owner who abandoned the 

16 interest and of all persons claiming through or 

17 under such owner. 

18 ‘‘(j) REGULATIONS.—The Secretary is authorized to 

19 adopt such regulations as may be necessary to implement 

20 the provisions of this section.’’. 

21 SEC. 8. MISSING HEIRS. 

22 Section 207 of the Indian Land Consolidation Act 

23 (25 U.S.C. 2206) is amended by adding the following: 

24 ‘‘(m) NOTICE.—Prior to holding a hearing to deter25 mine the heirs to trust or restricted property, or making 
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1 a decision determining such heirs, the Secretary shall seek 

2 to provide actual written notice of the proceedings to all 

3 heirs, including notice of the provisions of this subsection 

4 and of section 207(n) of this Act. Such efforts shall in5 clude—

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

7 Federal records, including telephone and address di8 rectories and including electronic search methods; 

9 ‘‘(2) an inquiry with family members and co10 heirs of the property; 

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

12 which the owner is a member, and the tribal govern13 ment with jurisdiction over the property, if any; and 

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

15 $1,000, an independent firm shall be contracted to 

16 conduct a missing persons search. 

17 ‘‘(n) MISSING HEIRS.—

18 ‘‘(1) For purposes of this subsection and sub19 section (m), an heir will be presumed missing if his 

20 whereabouts remain unknown 60 days after comple21 tion of notice efforts under subsection (m) and they 

22 have had no contact with other heirs or the Depart23 ment for 6 years prior to a hearing or decision to 

24 ascertain heirs. 
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1 ‘‘(2) Before the date for declaring an heir miss2 ing, any person may request an extension of time to 

3 locate an heir. An extension may be granted for 

4 good cause. 

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

6 after a review of the efforts made and a finding that 

7 this section has been complied with. 

8 ‘‘(4) A missing heir shall be presumed to have 

9 predeceased the decedent for purposes of descent 

10 and devise.’’. 

11 SEC. 9. ANNUAL NOTICE AND FILING REQUIREMENT FOR 

12 OWNERS OF INTERESTS IN TRUST OR RE13 STRICTED LANDS. 

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

15 et seq.) (as amended by section 7) is amended by adding 

16 at the end the following: 

17 ‘‘SEC. 222. ANNUAL NOTICE AND FILING; CURRENT WHERE18 ABOUTS OF INTEREST OWNERS. 

19 ‘‘(a) IN GENERAL.—On an annual basis, the Sec20 retary shall send a notice, response form, and a change 

21 of name and address form to each owner of an interest 

22 in trust or restricted land. The notice shall inform owners 

23 of their interest and obligation to provide the Secretary 

24 with a notice of any change in their name or address im25 mediately upon such change. The response form should 
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1 include a section in which the owner may confirm or up2 date his name and address. The change of name and ad3 dress form may be used by the owner at any time when 

4 his name or address changes subsequent to his annual fil5 ing of the response form. 

6 ‘‘(b) OWNER RESPONSE.—The owner of an interest 

7 in trust or restricted land shall file the response form upon 

8 receipt to confirm or update his name and address on an 

9 annual basis. 

10 ‘‘(c) NO RESPONSE; INITIATION OF SEARCH.—In the 

11 event that an owner does not file the response form or 

12 provide the Secretary with a confirmation or update of his 

13 name and address through other means, the Secretary 

14 shall initiate a search in order to ascertain the where15 abouts and status of the owner.’’. 

16 SEC. 10. EFFECTIVE DATE. 

17 The amendments made by this Act shall not apply 

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

19 of—

20 (1) the date that is 1 year after the date of en21 actment of this Act; or 

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

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

24 2206(g)(5)).

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